The High Court refused an application to amend proceedings brought after Ann Farrell’s death into a fatal injuries claim, ruling that the change would prejudice the defendant’s right to rely on the limitation period.
The judgment, delivered by Ms Justice Dunne on 4 December 2009, concerned a case originally begun by Mrs Farrell against Gerard Coffey over an alleged misdiagnosis. She had attended her doctor in or about May 2001 with a lesion on her right thigh. The judgment says it was treated as a wart and burned off under local anaesthetic. A later biopsy confirmed malignant melanoma.
Mrs Farrell issued proceedings on 12 February 2004, claiming negligence. She died from the melanoma on 24 October 2005. A statement of claim was delivered two days later, when her solicitors were reportedly unaware of her death. In May 2007, the proceedings were reconstituted in the name of her husband, Laurence Farrell.
The defendant first sought to have the proceedings struck out, arguing, among other grounds, delay and that the claim disclosed no reasonable cause of action. The judge ruled against him on that motion. The judgment says the court had agreed to hear that application first and does not set out the issues in detail.
The subsequent amendment application sought to transform the personal injuries case into a fatal injuries claim by Mr Farrell on his own behalf and for statutory dependants. The proposed pleading included funeral-related special damages and a claim for mental distress. The defendant argued that this was a new claim, and that it was already outside the two-year period for bringing a dependants’ claim when the amendment motion was returned in March 2008.
Justice Dunne distinguished the case from authorities allowing amendments based on the same or substantially the same facts. She said the proposed fatal injuries claim differed from the original personal injuries action in its nature, damages and parties. By the time amendment was sought, the deceased’s claim for pain and suffering could no longer be pursued, and medical expenses had been withdrawn from the reconstituted proceedings.
The judge concluded that the amendment would use the original action to bring a new, statute-barred claim and would deprive the defendant of a limitation defence. She also noted there was no explanation for reconstituting the original proceedings instead of issuing a separate fatal injuries claim within the appropriate time. The proposed amendments were refused. The judgment does not state any further order on costs.