The High Court has refused the Health Service Executive Dublin Mid Leinster Region’s application to dismiss a personal injury action for delay, allowing the plaintiff to continue pursuing damages for injuries he says he suffered at work.
In a judgment delivered on 30 November 2023, Ms Justice Bolger found that the delay was both inordinate and inexcusable. However, she concluded that the balance of justice favoured allowing the proceedings to continue because the defendant had not established the necessary level of prejudice.
The proceedings were issued in May 2017, following a letter of claim in April 2015. The plaintiff’s summons alleges that workplace bullying, stress and the defendant’s handling of grievances caused him personal injury. It refers to an incident around May 2014 in which a staff member allegedly called him “high risk” in connection with working in a patients’ area, and to an undated complaint by a parent about his interaction with her son. The plaintiff says that complaint was unfounded and was not properly investigated. These are allegations in the pleadings, not findings by the court in this application.
After the summons, the only step identified by the judge before the defendant’s motion was a notice of intention to proceed dated 25 October 2021. The parties attended an unsuccessful mediation in May 2018. The plaintiff relied on a complaint to the Data Protection Commissioner, lodged in November 2016 and decided in May 2021, as a reason for not progressing the personal injury case. The Commissioner found breaches of data protection obligations. Justice Bolger said the plaintiff had not told the defendant that he considered it necessary to await that decision, and was not satisfied that the complaint excused the delay. She made no finding on whether the plaintiff was entitled to wait for the decision.
The defendant asserted that the delay had made a fair trial impossible, but provided no detail about the prejudice it had suffered. The judge noted the defendant’s engagement with the Commissioner, including its review of nursing notes relevant to the claim, and found that specific prejudice had not been established. Dismissing the case would, by contrast, deprive the plaintiff of the opportunity to seek personal injury damages, regardless of a separate data protection action that appeared to be underway.
The judge’s decision concerns only the application to dismiss for delay; it does not determine whether the plaintiff’s injury allegations are proven. She gave an indicative view that the plaintiff should receive the costs of the application, with execution stayed pending the outcome of the proceedings. The matter was listed for 14 December 2023 for submissions on costs and any other final orders. The judgment does not state what orders were ultimately made at that hearing.