The High Court has dismissed the Health Service Executive’s application to strike out a negligence claim brought by Claire O’Sullivan, a person of unsound mind not so found, over events surrounding her birth in 1977.
Mr Justice Kevin Cross ruled on 11 November 2020 that the HSE had not shown a real or substantial risk of an unfair trial or unjust result because of the passage of time and missing records. The ruling concerns the HSE’s dismissal application, not the underlying negligence claim. Liability and causation remain disputed.
The claim alleges that O’Sullivan’s mother attended Carrick-on-Suir Hospital on 8 May 1977 after bleeding, and should have been transferred to a suitable hospital earlier. She was later taken by ambulance to Clonmel Hospital; O’Sullivan was born in the ambulance as it approached Clonmel. The judgment says O’Sullivan later suffered significant seizures. The HSE denies liability and causation.
The proceedings began with a summons dated 2 July 2018. The HSE argued that the elapsed time had impaired its ability to defend the claim, citing the absence of ambulance records and Clonmel Hospital records, which had been destroyed in a fire. It also relied on difficulties with potential witness evidence. The case had been listed for trial in July 2020 and again in October, but both dates were adjourned because of Covid restrictions. The HSE brought its motion in October and it was heard separately in November.
Justice Cross rejected the plaintiff’s argument that the motion should fail solely because it was brought late. He also found that the HSE had not established an oral-evidence deficit sufficient to make a fair trial impossible. Nurse Cox was available to give evidence. Nurse Anthony was also available, the judge found, but the HSE had chosen not to approach or interview her; that choice could not support the application.
The judge accepted that Clonmel records had been lost and might have been important to the causation issue. But he considered that the parties could examine what later tests and scans showed, and the plaintiff would still have to prove causation on the balance of probabilities. He dismissed the application rather than deferring it to trial. He said the HSE could raise the question of injustice again if new facts or submissions arise, and that a trial judge could address any evidential injustice that emerges.