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

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

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."

Toai -v- Duignan (No. 2)

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