About this case:

• Citation:
  [2018] IEHC 790
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Bronagh O'Hanlon

The manufacturing company submitted that authorisation should have been sought from the Personal Injuries Assessment Board before the proceedings were brought, and Ms Justice Bronagh O’Hanlon agreed, finding that the claim did not fall within any exclusions to that rule.

Background

In 2007, Mr Joseph Creedon had both hips replaced with metal-on-metal hip prosthetics manufactured by DePuy International Limited. In August 2010, the prosthetic was found to be defective, and DePuy conducted a worldwide voluntary recall of the product.

Mr Creedon was informed of this by his surgeon in October 2010, and he initiated proceedings against DePuy in November 2010. Mr Creedon alleged that as a result of the defective prosthetics he was in significant pain and discomfort, and that revision surgeries on both hips would be required in the future, as well as other medical treatment, including bi-annual MRI scans and annual ion level reviews.

In March 2011, a personal injuries summons was issued, in which Mr Creedon sought damages for negligence, breach of duty, breach of statutory duty and breach of the Liability for Defective Products Act 1991.

Failure to obtain authorisation from the Injuries Board

In June 2013, DePuy issued a defence containing a preliminary objection, which stated:

Ms Justice O’Hanlon said that the single issue to be tried, based on the preliminary objection, was whether Mr Creedon’s action comes within s.3(d) of the Personal Injuries Assessment Board Act 2003 – i.e. whether Mr Creedon ought to have applied to the PIAB before issuing a personal injuries claim against DePuy, or whether the action fell within the exclusions outlined in s.3(d) of the PIAB Act 2003:

DePuy submitted that if Mr Creedon’s action did not come within s.3(d), the proceedings must be dismissed due to the failure to comply with s.12(1) of the PIAB Act 2003:

Murphy v DePuy

DePuy argued that Mr Creedon’s action did not come within the three types of civil action within s.3(d), and that authorisation from the PIAB therefore required. DePuy relied upon Murphy v DePuy International Limited [2015] IEHC 153, the facts of which were very similar to those of the present proceedings.

In Murphy, DePuy submitted that an interpretation of s. 3(d) that would allow it to encompass a claim against a medical device manufacturer did not adhere to the natural and ordinary meaning of the words in the section. An action against a medical device manufacturer did not come within the natural and ordinary meaning of medical negligence

In Murphy, Ms Justice Mary Faherty found that the claim did not fall within s.3(d), and said “…notwithstanding that the alleged defective hip implant was received by the plaintiff in the course of medical treatment, to my mind, this cannot convert the genesis of this action, an alleged defective hip implant, and from which this civil action arises, into the provision of a health service to the plaintiff”.

Clarke v O’Gorman

Mr Creedon argued that Murphy v DePuy was wrongly decided in light of the Supreme Court decision in Clarke v O’Gorman [2014] IESC 72, and the Court may depart from its holding that this type of action is not a medical negligence action and therefore is not captured by the exclusionary provisions in s. 3(d).

In Clarke v. O’Gorman it was held that s.12 of the PIAB Act did not operate as a jurisdictional bar and was procedural in nature only. As such, Mr Creedon submitted that since the starting premise for the decision in Murphy was an incorrect statement of the law, the Court was in a position to depart from Murphy.

Ms Justice O’Hanlon said that Clarke v O’Gorman held that “failure to obtain PIAB authorisation may still be validly raised by the Defendant as long as that failure is pleaded in the defence”. As such, Mr Creedon’s submission in this respect was devoid of significant application to the within proceedings as the absence of PIAB authorisation was included in the pleadings.

Mr Creedon also submitted that whether or not Murphy v DePuy was wrongly decided:

• it was not applicable here, as this action was not rooted solely in liability for defective products (unlike in Murphy);
• DePuy was estopped from pleading failure to obtain PIAB authorisation as a defence.

Ms Justice O’Hanlon said that the court could not find merit in the argument that there was sufficient difference in the present proceedings and Murphy – while the particulars were phrased differently, the substance was almost identical.

Ms Justice O’Hanlon also rejected Mr Creedon’s argument that DePuy’s conduct in extended correspondence over two-and-a-half years before issuing a defence amounted to an implied representation that the proceeding were validly initiated. Ms Justice O’Hanlon said that, having examined the correspondence, DePuy “made no representation, either direct or indirect, on the subject of PIAB authorisation”.

Having found no aspect of the claim that could bring it beyond the decision in Murphy, Ms Justice O’Hanlon said that the precedent bound the court, and therefore found in favour of DePuy in relation to the preliminary objection.

• by Seosamh Gráinséir for Irish Legal News