The High Court has refused to strike out a negligence claim against Brookvale Manor Nursing Home arising from the death of 76-year-old Patrick Concannon shortly after he entered its care following lung cancer surgery.
Mr Justice Barr held that the action brought by Concannon's nephew and named executor, Finbarr Tolan, was not bound to fail and should not be dismissed at this preliminary stage.
Tolan alleges that his uncle's condition deteriorated sharply after admission to the nursing home in July 2021. He said Concannon appeared seriously unwell, complained of chest and stomach pain and shortness of breath, and was breathing heavily. Tolan said he raised those concerns with a nurse and separately contacted his uncle's GP practice seeking an examination.
Concannon later collapsed and died at 7.10pm. A post-mortem recorded pulmonary thromboembolism and ischaemic heart disease as the cause of death.
The nursing home sought to have the proceedings struck out on three grounds. It argued that Tolan lacked standing because he had not extracted a grant of probate, that his medical evidence could not establish that any alleged negligence caused the death, and that he had wrongly begun the case by plenary summons rather than personal injury summons.
The court rejected dismissal on all three grounds. On standing, it held that because Tolan was named as sole executor, the proper course was to stay the case until he obtained probate.
On causation, the judge accepted that Tolan's existing medical report may not satisfy the conventional 'but for' test if applied strictly. However, he found that causation in these circumstances was legally nuanced and could not fairly be resolved on a strike-out application without evidence and argument.
The procedural defect was also curable. The existing pleadings will be treated as standing in place of a personal injury summons, subject to Tolan filing an affidavit of verification.
The claim therefore remains alive, but proceedings are stayed until both probate and the verification affidavit are filed.