The Gazette 1991

GAZETTE

NOVEMBER 1991

At this time he was also allegedly examined by two general practi- tioners. The plaintiff learned of his condition in 1983 and a writ was issued on his behalf on 1 October, 1984, claiming damages for negligence and breach of contract against eight defendants. These defendants were the Master of the Coombe Hospital in 1984, the Hospital itself, the Master of that Hospital in 1961 who was the gynaecologist attending at his birth, the estate of a paediatrician (since deceased) who had ex- amined him at that time, the two general practitioners whom it was alleged had examined him in 1971 and Harcourt Street Children's Hospital. The former Master of the Coombe Hospital subsequently died and the proceedings were not reconstituted against his estate. In Toai (No. 1) the Master of the Coombe Hospital at the date of the writ, the Hospital itself, the estate of the paediatrician and one of the general practitioners successfully applied to the High Court for dis- missal of the proceedings against them. The Master of the Hospital succeeded on the ground that no cause of action was disclosed against him. The other applicants succeeded on the ground that they could not properly be expected to defend the proceedings because of the delay between the date of the alleged wrong and the date of the institution of proceedings. The plaintiff's appeal to the Supreme Court was dismissed, notwith- standing that the Court accepted that there was no culpable delay on his part in the commencement and prosecution of the proceedings. Finlay, C.J., delivering the judgment of the Court, said: "With regard to the hospital and fourth-named defendant who is the widow of the consultant paediatrician employed in the hospital in 1961, the position appears to me to be as follows. What is alleged is failure either to diagnose on examination an undescended testicle, or in the alternative, a failure, having diag- nosed it, to give the appropriate 312

advice to the plaintiff's parents with regard to what should be done if it did not rectify itself naturally by the time he was between three and five years of age. It would be impossible for either the hospital authorities or the consultants engaged, in the absence of the most detailed clinical notes and records [which were incomplete due to a change in the location of the hospital in the interim] to defend themselves 26 years on from attendance at a birth in 1961. It is wholly impossible, the death having occurred of both the gy- naecologist and paediatrician concerned, either for the hos- pital or for the widow sued as a personal representative of the paediatrician to defend them- selves in any way against the allegations which are being made against them. "Even though, therefore, the plaintiff may be blameless in regard to the date at which these proceedings have been instituted and with regard to the period of 25 to 26 years since the events out of which they arose, as far as these defendants are concerned there would be an absolute and obvious injustice in permitting the case to continue against them. One cannot but be moved with sympathy for the plaintiff who obviously feels deeply the medical condition which he is advised he presently suffers from, but that sympathy could not be permitted to justify what would be unjust proceed- ings against these defendants. In the High Court it was held by Keane, J., that the case was governed by the decision of this Court in O'Domhnaill -v- Merrick 32 I am in agreement with that view of the law. It is unnecessary for me to repeat here the principles laid down by this Court in that case, but they may be summarised in their application to the present appeal 1 as being that where there is a dear and patent unfairness in asking a defendant to defend a

case after a very long lapse of time between the acts com- plained of and the trial, then if that defendant has not himself contributed to the delay, ir- respective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action." 33 In Toai -v- Duignan (No. 2) 34 certain other defendants to the plaintiff's action appealed against the refusal of Lynch, J., to likewise dismiss the p l a i n t i f f 's action against them. These defendants were the Harcourt Street Children's Hospital and the other general practitioner whom it was alleged had seen the plaintiff in 1971 when he Had mumps. The latter de- fendant was held, not having records, to be in the same position as defendants who had earlier been dismissed from the action and her appeal was allowed. The Hospital's appeal was dismissed, however, on the ground that in their case " t he doctor [Dr. Rees] involved is alive; has apparently personal records as well as some personal recollection; he has not made any affidavit indicating any parti- cular difficulty or disadvantage in giving evidence, although the affidavit filed on behalf of the hospital itself indicates the general disadvantage of a long lapse of time. There is no real evidence of a concrete kind with regard to the nature of the records which are available, nor to any attempt by this hospital to ascertain the whereabouts or availability of other persons who were involved at the treatment of the plaintiff at the relevant time. A rather comprehensive note of his treatment written by Dr. Rees to the eight and fifth- named defendants after his treatment in hospital is an immediate source capable of being used by him (Dr. Rees) to revive his memory. In all these circumstances I am satisfied that these defendants have not