The Court of Appeal allowed the Health Service Executive’s appeal in a dispute over whether a fatal-injuries claim could proceed after the deceased’s own medical-negligence claim had become statute-barred.
Joseph Hewitt, acting as legal personal representative of his wife Dolores Hewitt’s estate, brought proceedings in 2012 under sections 7 and 48 of the Civil Liability Act 1961. The High Court had ruled in 2014 that the section 48 claim was not statute-barred. The HSE appealed that decision.
The case arose after a February 2007 ultrasound at Our Lady’s Hospital, Navan showed two liver lesions during Ms Hewitt’s follow-up care for breast cancer. The judgment records that, through hospital inadvertence, no action was taken on the report until a chance meeting with her surgeon five months later led to further scans. She was treated for secondary cancer and died on 23 June 2010.
The parties accepted that Ms Hewitt had the required knowledge of the alleged wrongdoing in July 2007. The limitation period for her personal-injury claim therefore expired in July 2009. She had not started a personal-injury action before her death. The High Court’s separate ruling that the estate’s section 7 claim was barred was not appealed.
The appeal concerned the dependants’ section 48 claim. The HSE argued that the claim could not succeed because Ms Hewitt herself could no longer have maintained a timely negligence action when she died. Mr Hewitt argued that section 48 created a separate claim and that proceedings issued within two years of his wife’s death met the relevant time limit.
Delivering judgment on 28 June 2016, Mr Justice Gerard Hogan agreed that section 48 creates a separate statutory cause of action. But he held that its wording also required the deceased to have been entitled, immediately before death, to maintain the underlying action and recover damages. Although limitation is a defence rather than a jurisdictional bar, he concluded that the HSE could have defeated Ms Hewitt’s claim by pleading that it was out of time.
The court considered Irish and UK authorities and declined to follow comments in an earlier High Court case, Farrell v Coffey, which suggested that a timely fatal claim could proceed despite the deceased’s own claim being barred. It held that a section 48 claim depended on the underlying right of action and could not revive a claim already statute-barred during the deceased’s lifetime.
The Court of Appeal allowed the HSE’s appeal and held that Mr Hewitt was not entitled to maintain the section 48 proceedings. The judgment addresses that claim; the section 7 ruling had not been appealed.