The High Court has ruled that Gabriel and Marcella Mitchell may continue their nervous shock proceedings over their daughter Aoife’s death, but held that five parts of their claim cannot succeed because the screening service owed them no duty of care on those grounds.
In a judgment delivered on 6 July 2023, Mr Justice Tony O’Connor applied the precedent in Morrissey v Health Service Executive to claims arising from the alleged misreading and reporting of screening results. The Mitchells’ five affected grounds concern learning of Aoife’s diagnosis in January 2014, accompanying her through the loss of a pregnancy, witnessing her deterioration and death, learning of alleged breaches connected with her death, and learning of a delay in disclosing information.
The judge said the Morrissey judgment, which found no duty of care to a patient’s relative in similar screening circumstances, applied to those five grounds. He was not persuaded there were substantial reasons to depart from that decision. He said the court would not decide whether to strike out those claims until it heard further submissions.
Two other allegations remain unresolved. The Mitchells say Aoife’s consultant colposcopist imparted the cause of death in an inappropriate manner in May 2018 and had retained information since June 2016. The judge said he had not decided whether the Health Service Executive or the colposcopist owed the parents a duty of care in relation to either allegation. The claims were introduced in updated particulars dated 8 May 2023, and there was a dispute about what happened at the meeting.
The HSE and third party Clinical Pathology Laboratories argued that the parents were barred from bringing the case because they had been listed as statutory dependants in earlier wrongful death proceedings brought by Aoife’s husband, Pádraig Creaven. Those proceedings settled with an apology read into the court record, and the Mitchells shared in the solatium paid.
The judge rejected that argument. He interpreted section 48(2) of the Civil Liability Act 1961 as limiting actions for wrongful death, not separate personal injury claims for nervous shock. He ruled that the earlier proceedings did not bar the Mitchells from prosecuting this case.
The judgment did not conclude the trial or determine liability or damages. The judge invited further submissions on when the proceedings could resume and proposed a short hearing for 14 July 2023 before the resulting orders were finalised.