Doyle v Dunne: appeal against dismissed claim for injury does not survive for the benefit of the estate

Subject to s 7 of6244-2 the Civil Liability Act 1961, an appeal against a dismissed action for compensation for injury is not an action which survives for the benefit of the estate (here).

Background

Section 7 of the Civil Liability Act 1961 states:

(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personalinjuryy or for loss or diminution of expectation of life or happiness.

Aged 79, Doyle underwent surgery to remove a cataract from her eye. Post surgery, she developed an infection that required the removal of her eye. She took High Court proceedings seeking compensation for injury through negligence, against Dunne, as representative of the hospital. The High Court dismissed the action, as it determined that she had been informed of the risk. She appealed that decision to the Supreme Court.

Unfortunately, Doyle died during the hearing of the appeal. Her son, as representative of her estate, sought to continue with the appeal. Dunne argued that s 7 of the 1961 Act prohibited this. Mr Doyle argued that s 7 did not apply, as the High Court had made a judgment in the case and the appeal was an application to correct an error in that decision.

Dismissing the appeal, Laffoy J rejected that logic. She held that the High Court dismissed the claim. But by virtue of Article 34 of the Constitution, Doyle had a right of appeal to the Supreme Court. She appealed seeking to have the decision set aside, to pursue the claim further. As the claim was for personal injury, it came under s 7 of the 1961 Act. Therefore the appeal could not proceed.

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  1. 2014 Review: November | scoirl

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