The High Court has ruled that Joseph Hewitt’s wrongful-death claim against the Health Service Executive can proceed, even though the estate’s separate personal-injury action was already time-barred when Dolores Hewitt died.
Ms Justice Baker delivered the judgment on 4 June 2014 after the HSE asked the court to decide, as a preliminary issue, whether the proceedings were barred by limitation law. The decision concerned only that issue; it did not determine liability for Mrs Hewitt’s death or assess damages.
Mrs Hewitt had a history of breast cancer and was treated at Our Lady’s Hospital Navan in 2001, after which she made a full recovery. In February 2007, an ultrasound found two lesions in her liver during a review. The judgment records that, through hospital inadvertence, no action followed the report until a chance meeting with her surgeon five months later led to further scans. Those scans revealed further liver lesions. She received treatment for secondary cancer and died on 23 June 2010.
The parties accepted that Mrs Hewitt had sufficient knowledge of the alleged wrongdoing by July 2007. The two-year period for her personal-injury claim therefore expired in July 2009. She had not started proceedings before her death.
The court held that the claim brought by Mr Hewitt as personal representative under section 7 of the Civil Liability Act 1961 was time-barred. That provision preserves a cause of action belonging to the deceased for the benefit of the estate, but it could not revive a claim whose limitation period had expired before death.
The section 48 claim was different. It is a statutory action for the benefit of the deceased’s dependants, and the court held that it came into existence only on death. The limitation period runs from the death or the dependants’ date of knowledge, whichever is later; it is not cut off by a limitation period that had already run against the deceased.
The court concluded that the dependants’ claim was commenced within the statutory two-year period after Mrs Hewitt’s death and was not time-barred. The judgment therefore rejected the HSE’s limitation challenge to that claim while finding the estate claim barred.