High Court Clarifies Threshold for Dismissal of Fatal Injury Claims at Interlocutory Stage

Patrice O’Keeffe, Partner CKT, together with Ana Harrington, Trainee Solicitor CKT, examine the High Court decision in Preston Grace v Bradpower Limited and Ors, where the Court refused an interlocutory application to dismiss fatal injuries proceedings on the basis of the Statute of Limitations and inordinate and inexcusable delay.

Background

It is alleged that the Plaintiff’s brother was ejected forcibly from a nightclub in June 2012, suffered a fall and subsequently died. An Inquest was held in 2013, which arrived at a verdict of death by natural causes. The Plaintiff instructed her solicitors to bring an application to PIAB, and an Authorisation issued in May 2015 in respect of the First and Second Named Defendants, the owner and providers of security at the nightclub respectively. Her solicitor and counsel advised her that given the Verdict, the claim was not sustainable.

The Plaintiff was unhappy with the Inquest and sought a fresh Inquest. New evidence was obtained in 2018, including CCTV footage and statements, and a second Inquest took place in January 2019, which also included new medical evidence. This Inquest returned a Verdict of Misadventure. In July 2020, the Plaintiff obtained a PIAB authorisation in respect of the Third through Eighth named Defendants, who were employees of the Second named Defendant, and issued proceedings in 2021.

The Application

The Defendants brought motions to have the proceedings dismissed as statute barred and for inordinate and inexcusable delay. In relation to the statute, they argued that despite the Plaintiff’s claim that she only knew her brother’s death could be attributable to a  push and fall after the second Inquest Verdict, there was no significant difference in the verdicts of the two Inquests. They argued that the Plaintiff believed as early as the day after the incident at the nightclub that her brother’s death could be attributable to the acts or omissions of the First and Second Defendants. Moreover, since inquests do not deal with questions of liability, the Verdict of the second Inquest is irrelevant to any finding of liability.

The Court considered that the substantial question was, when did the Plaintiff know that the injury was attributable to an act or omission which is alleged to constitute negligence or breach of duty. Given that in 2015, the Plaintiff did not have access to the CCTV footage, the engineer’s analysis of the CCTV, additional statements or medical evidence challenging the Deputy State Pathologist’s views, it was not made out that she had enough information at that time to make a connection between the injury and the alleged cause of the injury. As the central facts had not been agreed, including the Plaintiff’s date of knowledge, the matter should not be settled at an interlocutory stage, on Affidavit evidence, but instead should wait for cross-examination at trial.

The Court then considered the question of inordinate and inexcusable delay. While it held that there was certainly an inordinate delay between the death in 2012 and the bringing of proceedings in 2021, it was somewhat excusable given the late evidence and Inquest. The Plaintiff’s excuses of Covid difficulties were considered less convincing. Turning then to the balance of justice, the Court noted that the Defendants’ only argument was that the witnesses’ memories would have faded with time. The Court rejected this as it was a bare assertion, not substantiated by any evidence. While it acknowledged that memories of ordinary events can certainly fade, it held that this assumption cannot be applied to a death in the early hours of the morning outside a nightclub, which would likely have been traumatic and memorable for all the witnesses involved. The Court did accept that even a small prejudice can tip the balance in favour of dismissing a claim for delay, however the Defendant had not established this prejudice. The Plaintiff would suffer greater prejudice if the case were dismissed at the interlocutory stage. Again, this should be a matter for the Trial Judge who could hear cross-examination of the witnesses.

Conclusions

This case is a helpful reminder of the high threshold Defendants must reach in an to have a case dismissed at the interlocutory stage. Primary and secondary facts should be agreed, and where they cannot be agreed without cross-examination, particularly a fact as central as the Plaintiff’s date of knowledge, the matter should not be dealt with at that stage but should instead go to trial.

Additionally, the mere fact that a delay has been inordinately long, even as long as 9 years, does not necessarily mean it is inexcusable. Even where the excuse is not particularly strong, the balance of justice must still be considered. Simple passage of time is not sufficient to establish prejudice where there is reason to believe that witnesses will still have a good memory of the events, and the greater prejudice will be to the Plaintiff by dismissing the claim at an early stage. Defendants should be wary of relying on bare assertions, but instead should be sure to substantiate any argument they make as to why they will suffer prejudice, if a claim is permitted to proceed to trial.