 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Smyth (An Infant) v. Ward & Ors [2004] IEHC 370 (01 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/370.html Cite as: [2004] IEHC 370 |
||
[New search] [Printable RTF version] [Help]
[2004] IEHC 370
THE HIGH COURT
2001/7584P
BETWEEN
ASHLING MARIA SMYTH (AN INFANT)
SUING BY HER FATHER AND NEXT FRIEND
JOHN JOSEPH SMYTH
PLAINTIFF
AND
WINIFRED WARD, ANTHONY WARD
(OTHERWISE KNOWN AS MICHAEL P. WARD)
AND
MOTOR INSURERS BUREAU OF IRELAND
DEFENDANTS
Judgment of Finnegan P. delivered on the 1st day of December 2004
The Plaintiff was born on the 25th January 1993 and is now almost twelve years of age. She sustained injury in an accident on the 13th August 1999 and this gives rise to the present action. There has been no appearance by or on behalf of the first and second named Defendants. The Defence delivered by the third named Defendant admits liability and the matter will proceed as an assessment against that Defendant. The matter comes before me by way of Notice of Motion issued on behalf of the Plaintiff seeking directions as to when the action should proceed to trial. The background to the motion very briefly is that in the accident the Plaintiff sustained an injury to her left ear which leaves her with seriously compromised hearing on that side. The hearing loss on the basis of the Green Book is 56.25%. She also sustained an injury to her right ear the loss of hearing there being 23.75% without a hearing aid but improving with a hearing aid. Her combined loss is 30.25%. The medical reports obtained on behalf of the Plaintiff disclose the possibility of a future complication in the right ear namely retraction leading to cholesteatoma. Should the complication arise she would require surgical repair to that ear, a very major operation. The medical reports obtained on behalf of the Plaintiff disclose that there is a significant chance of this occurring but that it is very difficult to form an opinion as to how significant that chance is. Should cholesteatoma occur it would result in a further reduction in the hearing in the right ear. The condition could be triggered by sinusitis or rhinitis. The condition would be disastrous for the Plaintiff. The Plaintiff seeks to have the hearing of the action deferred until she attains the age of eighteen years. At that time if there has been no deterioration in her right ear a prognosis could be given with more certainty than at present. The third named Defendant opposes such deferral.
In the first instance I must balance, in the light of all the circumstances of the case and the interests of justice, the Defendant's interest in having a prompt hearing of this action with the Plaintiff's interest in having established with as much certainty as possible what the future might hold for her. While it is clear that even if the hearing is deferred there will be considerable discussion on the likelihood of a deterioration in the Plaintiff's right ear at the hearing of the action and that this will create a difficulty for the Court in assessing general damages. Such difficulty is not unusual and is regularly dealt with by the Court. However I also accept having considered the reports of the Plaintiff's E.N.T. Specialists Mr. Gormley and Mr. Blayney that their prognosis will be attended with some greater certainty if the passage of some years is allowed before the hearing. I do not see that any special or particular injustice will be caused to the third named Defendant by such deferral of the assessment of damages as in the intervening period the Defendant will have the use of the amount of the ultimate award. The objective of achieving justice between the parties would I am satisfied be achieved by a deferral: the more definite the prognosis the less the likelihood of the Plaintiff receiving an inadequate award should she subsequent to the hearing suffer from cholesteatoma and on the other hand the third named Defendant should the condition not develop between now and the ultimate date of hearing is likely to face a lesser award as a result of greater certainty in the prognosis which will then be available.
However it is also necessary to have regard to the European Convention on Human Rights Article 6(1) which guarantees a trial within a reasonable time. Reasonableness is assessed in the light of all the circumstances of the case, having regard in particular to the complexity of the issues before the national Courts. X v France ECHR Series A Vol. 234 – C. The Court should also consider what is at stake for the Applicant in the litigation: Mikulic v Croatia (2002) 11 BHRC 689. As appears from two recent cases against Ireland – McMullen v Ireland and Dawson v Ireland - it is the responsibility of the Court to actively ensure that there is no delay.
In the circumstances of the present case I am satisfied that justice demands that there should be some further delay to enable the prognosis in respect of the Plaintiff to be rendered more certain. It is quite clear from the medical reports exhibited on the application that the delay sought, that is until the age of eighteen, is arbitrary. Having regard to the time which has passed since the date of the accident I am satisfied that a further period of two years will enable the Plaintiff's medical advisers to express their prognosis with more certainty than that which they are capable at present. I have already indicated that the delay should not unduly prejudice the third named Defendant as the matter will proceed as an assessment only and it will have the use of the funds ultimately found to be payable to the Plaintiff until the trial. In these circumstances I propose in the interests of justice to direct that a further period of two years shall elapse before the action is listed for hearing.
Approved by Finnegan P.