Plaintiffs in wrongful death actions can no longer rely on the date of death of a loved one as the date on which time starts to run where the date of knowledge of the injury causing death precedes the date of death.
Plaintiff personal representatives may find themselves Statute-barred in cases where they were aware of the deceased’s injury prior to the death of the deceased and failed to act within two years of the date of this knowledge.
Until recently, it was widely perceived that the Statute of Limitations (the two year time limit) in wrongful death actions did not start to run against the personal representatives of the deceased until the date of death. This belief was reinforced by the decision of Ms. Justice Baker in the High Court case of Joseph Hewitt v the Health Service Executive in 2014. However, the recent decision by the Court of Appeal in this matter has sounded a warning to potential litigants and their solicitors in fatal injuries cases.
Facts of the case:
Mrs. Hewitt, the deceased wife of the Plaintiff, was treated for cancer in 2001 and made a full recovery. She continued to attend her clinicians for regular reviews. In February 2007 an ultrasound disclosed the existence of two lesions in her liver. However, no action was taken by Mrs Hewitt’s clinicians on foot of this discovery until Mrs. Hewitt met her surgeon, by chance, some five months later in July 2007. She subsequently underwent more scans which revealed further lesions in her liver. Mrs. Hewitt ultimately died from the cancer on 23rd June, 2010.
Mr. Hewitt commenced proceedings on the 25th January, 2012, under both section 7 and section 48 of the Civil Liability Act 1961 (‘the Act’) on behalf of himself and his family as dependants of the deceased. The State Claims Agency contested Mr. Hewitt’s claims against the HSE on the grounds that both actions were Statute-barred as these claims should have been initiated within two years of the alleged failure to diagnose the cancer in July 2007 (i.e. before July 2009) as the deceased and her family had the requisite knowledge at this time.
Finding of Ms. Justice Baker in the High Court:
In her judgement, delivered on the 4th June, 2014, Ms Justice Baker noted that, while the claim under section 7 if the Act was Statute-barred, the cause of action under section 48 only accrued on the date of death. She also noted that the claims under section 7 and section 48 were distinct causes of action and she concluded that the Plaintiff was therefore not Statute barred from taking a wrongful death action under section 48 as he had issued proceedings on the 25th January, 2012, well within two years of his wife’s date of death.
Decision of the Mr. Justice Hogan in the Court of Appeal:
This judgment was appealed by the Defendant, however, and the Court of Appeal ultimately overturned the High Court decision. In the Court of Appeal, Mr. Justice Hogan held that where a claim that is statute barred under section 7, the corresponding section 48 fatal injuries claim cannot be maintained.
Dealing with the terms of section 48, Mr. Justice Hogan said that a cause of action on the part of a personal representative (such as Mr. Hewitt) arises if it can be shown:
(a) that death was caused by the wrongful act of another; and
(b) that the action is one which the deceased would have been entitled to maintain during his
or her lifetime; and
(c) that the deceased could have recovered damages for the wrongful act.
Mr. Justice Hogan agreed with the High Court that the cause of action under section 48 was a separate cause of action from that which might have been maintained by the late Mrs Hewitt prior to her death. Nonetheless, he was of the opinion that it was clear from the language of section 48 that the right to recover damages was contingent on showing that the deceased could have, but for her death, successfully maintained an action and recovered damages.
This obliged the Court to ask whether the late Ms Hewitt could have maintained an action for negligence as of the date of her death on 23rd June 2010 and recovered damages in respect thereof?
The Court found that this question could only be answered in the negative given that the late Ms Hewitt’s action would long have been statute-barred by that date.
Conclusion:
Where a patient is injured as a result of negligence, and the consequences of this injury will be fatal, the injured party or their personal representative should consult their solicitor as soon as they become aware of the fatal injury. The personal representative should not delay until the death of the injured party as this event may itself fall outside of the Statutory two year time limit.
References: Joseph Hewitt v Health Service Executive: [2014] IEHC 300; [2016] IECA 194.
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