Death, Time Barred Claims And The Equitable Doctrine Of Unconscionability

• Published date: 18 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Personal Injury
• Law Firm: William Fry
• Author: Ms Margaret Muldowney and Mary Cooney

High Court dismisses claim against deceased doctor's estate as statute barred pursuant to s. 9(2)(b) of the Civil Liability Act, 1961.

The High Court dismissed a husband and wife's claims against the estate of a consultant histopathologist, who is alleged to have acted negligently in the testing and reporting of a histology sample carried out in January 2014. The claim was part of medical negligence proceedings taken against numerous defendants relating to an alleged delayed diagnosis of cervical cancer.

In what was undisputed evidence, the plaintiffs' solicitors did not become aware of the doctor's date of death until after the two-year statutory period for issuing proceedings under s. 9(2)(b) of the Civil Liability Act, 1961 (1961 Act) had expired. The plaintiffs contended that:-

• the personal representative of the late doctor and/or his indemnifiers omitted to supply the plaintiffs' solicitor with his date of death prior to the expiry of the statute;
• this omission was sufficient to satisfy the test for estoppel set by the Supreme Court in the seminal decision of Doran v Thompson [1978] IR 233; and
• if the Court was not satisfied that the threshold for estoppel had been met, it should, on the exceptional facts of the case apply the wider equitable doctrine of unconscionability to prevent the defendant from invoking the statute defence, referencing Murphy v Grealish [2009] 3 IR 366 and Traynor v Fegan [1985] IR 586.

In the absence of a representation inducing the plaintiff not to issue proceedings within the requisite statutory period, the High Court held that unconscionability in the behaviour of the relevant defendant would need to be found before it could consider disapplication of any statute defence pleaded.

In distinguishing the facts of Traynor v Fegan, the Court held that there were no false representations or inequitable behaviour on the part of the personal...