The Court of Appeal has upheld a High Court decision refusing to dismiss a woman’s personal injury claim against the Health Service Executive over the circumstances leading to her birth in 1977. The appeal court found the HSE had not established that the passage of time created a real and substantial risk of an unfair trial or unjust result.
The woman, identified in the judgment as Claire Sullivan, is described as having brain damage and an intellectual disability. She is suing through her mother, Caroline Sullivan, as next friend. The claim alleges that the management of her mother’s care before her birth caused her injuries. Those allegations have not been decided.
The proceedings were issued in July 2018. The HSE sought to have them dismissed, arguing that missing medical records and unavailable witnesses would make a fair defence impossible. The High Court refused that application, and the HSE appealed.
The Court of Appeal said the claim was principally governed by the test for whether delay creates a real and substantial risk of an unfair trial or unjust result. It said the unexplained delay before proceedings began did not, by itself, establish culpable delay. The court also rejected the argument that the public interest in conserving court time provided a stand-alone basis to stop the case.
Some records from St Joseph’s Hospital in Clonmel, where the woman spent her first ten days, were destroyed in a fire in 2001. However, a discharge or transfer letter survived in records held by Ardkeen Hospital. Records from St Brigid’s Hospital in Carrick-on-Suir, where her mother was admitted before the birth, were also available. The court noted that Nurse Cox was available to give evidence and found insufficient evidence that Nurse Anthony could not be approached or was unavailable.
The parties relied on differing expert opinions about the cause of the woman’s brain injury. Her experts’ case is that a chronic partial asphyxiating event began with her mother’s haemorrhage and continued until delivery. The HSE relied on an expert opinion that the incomplete records made it impossible to assess potential causes. The appeal court did not determine causation or liability; it concluded that the evidence presented on the dismissal motion did not establish the required risk of unfairness.
The appeal was dismissed and the refusal to strike out the claim was upheld. The court said the trial judge would be able to assess fairness in light of the evidence at trial and intervene if an evidential deficit created an injustice. It provisionally indicated that the woman should receive the costs of the appeal, subject to any application by the HSE for a different order within 14 days.