The High Court has ruled that Aidan McDonald may pursue a contract claim against a Belgian hospital in Ireland over treatment there, but dismissed his negligence claim against the surgeon for lack of jurisdiction.
Mr Justice Gerard Hogan delivered the judgment on 27 February 2014 on a motion by AZ Sint Elizabeth Hospital and Dr Joost Van Der Sypt to set aside service of the proceedings. The defendants, domiciled in Belgium, argued that the Irish court lacked jurisdiction under the Brussels Regulation. The ruling addressed jurisdiction only; it made no finding on whether the alleged medical negligence or breach of contract occurred. The defendants had not yet filed defences.
The proceedings arose from a gastric bypass operation at the hospital in Zottegem, Belgium, on 6 March 2007. Mr McDonald alleged that fluid was spilled internally during the operation, causing serious infection and other health problems, and that the hospital discharged him too early and dismissed his concerns. These were allegations in the case, not findings by the court. The claim against a third defendant, a hospital trust, had been compromised and was not considered in this ruling.
The judge found that Mr McDonald had a contract with the hospital for services, but none with Dr Van Der Sypt, who was a consultant employed or retained by the hospital. The surgeon’s alleged liability was therefore in negligence. As the relevant harmful event was not said to have occurred in Ireland, the court dismissed the proceedings against him for want of jurisdiction.
The court held that Mr McDonald was a consumer because he obtained medical services for personal purposes. It also found that the hospital had directed its activities to Ireland before the contract was made. The promotional material described services for Ireland and the UK, quoted prices in euros as well as sterling, provided an Irish telephone number, included an Irish patient’s testimonial, and referred to consultations in Dublin and Cork.
The judge concluded that these features brought the contract claim within Article 15(1)(c) of the Brussels Regulation, which allowed the consumer to sue in the courts where he was domiciled. The court therefore had jurisdiction over the contract claim against the hospital. It did not determine the merits of that claim, decide the applicable contract law, or rule on the separate negligence claim against the hospital.