Natalie Courtney –v– Our Lady’s Hospital Crumlin, Jackie Murray and Sandra Walsh

At about midnight on the 18th February 2006, the plaintiff and her partner attended the defendant hospital with their daughter after becoming concerned that she was hallucinating and experiencing pain in the back of her neck. The plaintiff’s daughter was examined, given Paracetamol and left awaiting attention in the hospital throughout the night, during which time the plaintiff repeatedly requested attention. By 3.00am, the plaintiff’s daughter had begun to develop a rash on her back. Between 7.00am and 7.30am the plaintiff’s daughter was examined and the plaintiff was informed she had a viral gastric bug. By now, the plaintiff’s daughter had developed purple spots and the plaintiff was at some stage thereafter informed that her daughter was being treated for meningitis. Her condition quickly deteriorated and she was brought to the Intensive Care Unit where she suffered a heart attack and died at 10.25am on the 19th February, 2006. The plaintiff was with her daughter at all times, with exception of the brief period when her daughter was in intensive care.

Proceedings were issued against the defendant hospital in this case claiming firstly damages for “nervous shock” and the resulting psychiatric illness arising out of the circumstances of her daughter’s death. In addition proceedings sought to recover the costs of the legal representation at the inquest into the plaintiff’s daughter’s death. In relation to the former, the defendants conceded liability and the case proceeded by way of an assessment of damages only. Mr Justice O’Neill distinguished between the psychiatric illness suffered by the plaintiff as a result of her exposure to the traumatic sequence of events in the defendant’s hospital, culminating in the death of her daughter, from the natural grief which would have resulted following the death. He was satisfied on the evidence that the plaintiff had suffered a significant depressive illness by reason of this tragic incident and awarded general damages to the sum of €150,000 for past and future suffering.

The second arising issue was the plaintiff’s recovery from the defendants of the costs of legal representation at the inquest into her daughter’s death. Her claim in this respect amounted to €21,407 and required Mr Justice O’Neill to engage in extensive construction of s.49(2) of the Civil Liability Act 1961, which reads:

(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependents of the personal representative by reason of the wrongful act.

The defendants argued the plaintiff could not recover the cost of legal representation at the inquest by reason of the fact that it was not necessary for the plaintiff to be legally represented at the inquest in the first instance, as issues of civil or criminal liability are not determined at such. In addition it was contended that the words other expenses properly construed were confined to those arising in respect of the funeral costs and no more.

However in clarifying the application of ejusdem generis rule, Mr Justice O’Neill agreed with the plaintiff’s submission that s.49(2) does not exclude the costs of legal representation at an inquest and that the sub-section should be given a purposeful construction. In this respect the fact that at the time of the inquest there had been no admission of liability on the defendant’s part, that there was dispute surrounding the circumstances of the plaintiff’s daughter’s death and that the plaintiff herself had to give evidence at the inquest was of central importance. In addressing the question as to whether the costs of legal representation can be considered as “other expenses actually incurred” within the meaning of s. 49(2) of the 1961 Act, he referred back to the general law governing the wrongful act and asserted that expenses arising from the tort of negligence can be recovered if they are reasonably foreseeable. Mr Justice O’Neill found for the plaintiff and was satisfied that in the circumstances of the inquest, it was both reasonable and foreseeable that the plaintiff would require legal representation and that such was recoverable. This case has important general implications for families of patients who have been fatally injured as a consequence of hospital care as they can now recover the costs of legal representation at inquests in subsequent court proceedings.

If you have any further queries, please contact any of the following from our Medical Negligence Group:

10 June 2011

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