Court of Appeal finds man’s fatal claim in respect of wife’s death is statute barred

About this case:

• Judgment:
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The case brought by Mr Joseph Hewitt concerned the death of Ms Dolores Hewitt. She had been receiving treatment for breast cancer since 2001 in Our Lady’s Hospital, Navan following which she made a full recovery.

However, a follow up review revealed two lesions in her liver. Due to inadvertence on the part of the hospital no action was taken until a chance meeting with her surgeon five months later led to further scans which revealed further lesions in her liver. She was then treated for her secondary cancer, but sadly, eventually died from the cancer on 23rd June 2010.

By a personal injuries summons dated 25th January, 2012, Mr. Hewitt issued proceedings pursuant to s. 7 of the 1961 Act and proceedings on behalf of himself and the other statutory dependants of the deceased for wrongful death pursuant to s. 48 of 1961 Act.

Before the High Court, the parties agreed that Ms Hewitt had sufficient knowledge of the wrongful act of the defendant for the purpose of s. 6(1) of the Statute of Limitations (Amendment) Act 1991 in July 2007 so that, accordingly, the two year statutory limitation period expired in July 2009. Critically, however, no action for personal injuries was commenced by the deceased in her own personal capacity prior to her death.

In the High Court, Baker J had held that the fatal claim brought by Mr Hewitt was not statute-barred.

The Health Service Executive (HSE) alleged that as any action for negligence which might have been brought by the plaintiff’s wife on that date had she been alive would itself have been statute-barred, it must follow that the action brought by the plaintiff husband is also statute-barred.

However, Mr Hewitt alleged that the fatal claim brought under s. 48 of the Civil Liability Act 1961 must be regarded as a stand alone claim and that once these proceedings were brought within the two year statutory period from the date of his wife’s death (as they were), then the proceedings could not be regarded as statute-barred.

The Court identified the issue as being a novel and difficult point of statutory interpretation which was of considerable importance.

It observed that the language of s.48(1) made clear that the action by the dependants under s. 48 of the Act of 1961, may be maintained by the personal representative only if the deceased had been entitled to “maintain the action and recover damages in respect thereof.”

The Court took the view that s. 48(1) went further than simply requiring that the action was in respect of a justiciable controversy measurable in damages which the deceased was capable of commencing during her lifetime: it also required proof that the deceased would have succeeded in the action but for the death.

Accordingly, while s. 48 was certainly a separate cause of action, the Oireachtas had clearly linked recovery to the entitlement of the deceased – but for her death - to have sued in her own right.

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.

The Court found that this conclusion was supported by UK authority, including Williams v. Mersey Docks & Harbour Board 1 K.B. 804; Nunan v. Southern Railway Company 1 K.B. 223; and Pickett v. British Rail Engineering Ltd. UKHL 4, A.C. 136.

Irish authorities also demonstrated that the right to bring a fatal claim is entirely dependent on the right of action which the deceased would have had but for death, for example in Mahon v. Burke 2 I.R. 495, and Farrell v. Coffey IEHC 537.

Thus, while the Court agreed with the High Court that s. 48 of the 1961 Act is a separate cause of action which is different from that which might have been maintained by the plaintiff’s late wife immediately prior to her death, it concluded that this could not take from the fact that the two causes of action are nonetheless inter-linked.

They concluded:

“It follows, accordingly that if, as here, that underlying action which the late Ms. Hewitt might have brought was itself statute-barred (or, for that matter, as in Mahon v. Burke, compromised), the personal representative of the deceased cannot maintain the s. 48 proceedings, even if these proceedings were (as here) brought within time. Any other conclusion would mean, in effect, that a cause of action which was statute-barred during the deceased’s lifetime would de facto be revived through the mechanism of a s.48 claim, even if allowance is made for the fact that the s. 48 claim is, of course, a separate cause of action.”