Survival of cause of action after death: The case of Doyle v Dunne

By Richard O'Brien
25 Jan, 2017

Survival of cause of action after death:
The case of Doyle (as per. rep. of the Estate of Bridget Doyle, Deceased) v Dunne [2016] IESC 68

Background
This judgment deals with a preliminary issue as to whether the Plaintiff’s cause of action for damages for alleged medical negligence survived her death. The Plaintiff had been unsuccessful at the High Court, the trial Judge held on the evidence that the requirements for disclosure of information to patients in elective surgery had been met. However, the Plaintiff had passed away before the conclusion of the hearing of her appeal before the Supreme Court.

The Plaintiff's representatives argued that, by virtue of the relevant common law rules, her cause of action survived for the benefit of her estate notwithstanding the provisions of the Civil Liability Act 1961. They also argued that, in any event, the proceedings included a claim for pecuniary loss in respect of care provided to the Plaintiff by her son, and that this claim survived her death.

Plaintiff's Arguments
The Plaintiffs argued that at Common Law that while an action in tort for damages for personal injuries generally ceased upon the Plaintiff's death, that same did not apply in circumstances where the case had been prosecuted to final judgment before the date of death. In that regard, the Plaintiffs appeal had been partly heard, but had been adjourned for completion of argument and it was during this period that the Plaintiff passed away.

The Plaintiff's representative sought to rely on the case of “Alford V Begg” (1848 )12 Ir. L.R. where a matter came before the Court of Exchequer for argument on a bill of exceptions and the court was informed that one of the parties had died. It was submitted that the suit had resultantly abated, but at that time, Pigot C.B observed that no authority could be found to support the contention that the suit had abated in circumstances where a verdict had been reached prior to the death of one of the parties.

The Plaintiffs, in the Doyle case, made the argument that had the Plaintiff succeeded in the High Court, her cause of action would have been translated into a judgment debt and if she had then appealed the amount of the award, the judgment debt would have been unaffected by her death. Therefore they tried to argue that she was only unsuccessful at trial because of an error by the trial judge and as such, it would be unjust to deprive her of the judgment that she should have obtained.

Judgment
O Malley J. found against the Plaintiff and stated “I find it impossible to accept the contention that vestiges of the common law rule on abatement in tort actions have survived the enactment of s.7 of the Civil Liability Act 1961. The section expressly refers to "all" causes of action other than those specifically excluded. A personal injuries action does not fall into the excluded category. “

He differentiated this case from that of “Alford V Begg”, the case that the Plaintiffs based their argument upon, on the basis that the Doyle case related to a personal injuries action. He further stated that in the “Begg” case that the Plaintiff had been successful and an award of damages had been made that could be enforced as a judgment debt, without reference to the original basis for the claim.

In relation to the Plaintiff's representative's claims that it would be unfair to deny the Plaintiff, where the estate could establish that the failure in the High Court was due to an error by the trial judge, O’Malley J., quite logically in my view, stated that if this was to be accepted then the estate of a Plaintiff whose case had not been heard prior to his/her death, could argue that it would have succeeded had it been heard before the Plaintiff's death and and he further added “the intention of the Oireachtas is clear in this regard - a claim for general damages for pain and suffering may not be maintained after the death of the person who sought compensation for that pain and suffering. The beneficiaries of the estate cannot complain that they have been unfairly denied compensation for the suffering of another individual”.

The other sitting Judges unanimously concurred with O’Malley J.

For more information on the content of this Insight contact:
Richard O'Brien, Solicitor, richard.obrien@rdj.ie, +353 21 2332814