Gerard McGee (a minor suing by his father and next friend Thomas McGee) (plaintiff) v Francis O'Reilly and the North Eastern Health Board (defendants).

Practice - Pleadings - Professional negligence - Whether the plaintiff is entitled to particulars arising out the defence - Rules of the Superior Courts, 1986 (SI No15), Order 19 ride 7.

The Supreme Court (before the Chief Justice Mr Justice Hamilton, Mr Justice Barrington and Mr Justice Keane); judgment delivered 9 July 1996.

THE whole purpose of a pleading, be it a statement of claim, defence or reply, is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. In other words a party should know in advance, in broad outline, the case he will have to meet at the trial.

In our system of civil litigation, the case is ultimately decided having regard to the oral evidence adduced at the trial. The machinery of pleadings and particulars, while of critical importance in ensuring that the parties know the ease that is being advanced against them and that matters extraneous to the issues as thus defined will not be introduced at the trial, is not a substitute for the oral evidence of witnesses and their cross examination before the trial judge.

The Supreme Court so held in dismissing the plaintiff's appeal.

John Finlay SC and Anne Cruess Callaghan BL for the plaintiff Michael Gleeson SC and Michael O Donoghue BL for the defendant.

MR JUSTICE KEANE (the Chief Justice Mr Justice Hamilton and Mr Justice Barrington concurring) said that the claim by the plaintiff in this case was for damages for the alleged negligence and breach of duty of the first named defendant, a general medical practitioner, and the second named defendant which is responsible for the provision of hospital and medical services at the Louth County Hospital Dundalk.

Mr Justice Keane said that in paragraph 4 of the statement of claim, it was averred that on 8 October 1987 the first named defendant attended and examined the plaintiff (who was then aged approximately a year) at his home. It was said that the child was vomiting and had a fever and that medication was prescribed. There were subsequent examinations on 10, 16 and 17 October as the plaintiff's condition deteriorated and it was averred that on the third of these occasions, the first named defendant referred the plaintiff to the Louth County Hospital, where a diagnosis of tonsillitis/gastroenteritis was made, medication prescribed and the child discharged. No follow up, it was averred, was arranged.

The statement of claim continued as follows: "The infant's condition continued to deteriorate. He couldn't sit up and became increasingly irritable and screamed when moved or touched. He couldn't bear the light. On 22 October 1987 the first named defendant, who was unaware that the infant plaintiff had been discharged from hospital, was called again to see the infant plaintiff. No examination of the infant plaintiff by the first named defendant took place but the parents were advised to continue the medication."

The statement of claim went on to aver that, by 25 October, the plaintiff was "profoundly ill" and was taken by his parents to the Louth County Hospital where, on admission, a tentative diagnosis of meningitis was made. This was confirmed, it was said, by a lumbar puncture at Our Lady of Lourdes Hospital, Droghed, where the plaintiff was immediately transferred. It was averred that as a result of the meningitis the plaintiff was now severely brain damaged and suffered inter alia from right sided hemiplegia, was profoundly deaf and suffered from epilepsy. The plaintiff claimed that these injuries, all of which are said to be permanent, resulted from the negligence and breach of duty of the defendants.

Mr Justice Keane said that a defence was delivered on behalf of the first-named defendant which contained, inter alia, a denial that the plaintiff's condition continued to deteriorate or that he exhibited the symptoms as set out at paragraph 4 of the statement of claim, or any symptoms. The defence continued that the plaintiff was visited by the first named defendant on 22 October 1987 and his parents were advised to bring the plaintiff back to the hospital immediately. It was denied that no examination of the plaintiff had taken place or that the plaintiff's parents were advised to continue medication as was alleged in the statement of claim.

Mr Justice Keane said that arising out of that plea, the following particulars were sought on behalf of the plaintiff by a letter dated 14 September:

"(2) Furnish detailed particulars of any symptoms found or observations made by the first named defendant of the plaintiff upon the occasion of his examination of the plaintiff on 22 October 1987.

"(3) Furnish detailed particulars of the history allegedly given by the parents of the plaintiff to the first named defendant on 22 October 1987.

"(4) Furnish detailed particulars of any diagnosis made by the first named defendant of the plaintiff's condition on 22 October 1987.

"(5) State why the first named defendant allegedly advised the plaintiff's parents to bring the plaintiff back to hospital immediately.

"(6) State in what terms it is alleged the first named defendant advised the parents of the plaintiff to bring the plaintiff back to hospital immediately. State in particular whether it is alleged the first named defendant gave the plaintiff's parents any reason for such advice.

In reply to that request for particulars, it was said that in paragraph 5(a) of his defence, the first named defendant did not dispute being called to see the plaintiff on 22 October 1987 but did deny that no examination took place and further denied the allegation that the parents were advised to continue the medication. The reply continued that by these denials, these two latter allegations were put in issue. It stated that in accordance with his obligations under Order 19 of the Rules, the first named defendant further pleaded that on 22 October 1987 he advised the parents to bring the minor plaintiff back to the hospital immediately. The specific request for particulars were then answered. In respect of numbers (2), (3) and (4) the first named defendant repeated his reply at sub paragraph (1) whilst stating that numbers (5) and (6) were clearly a matter of evidence. The reply concluded with a statement that the first named defendant would state that he advised the parents to return the minor plaintiff immediately to the hospital so that immediate and appropriate investigations could be undertaken.

Mr Justice Keane said that the plaintiff then brought an application by way of motion on notice requiring the first named defendant to furnish the particulars sought in the letter of 14 September 1995. The motion came on for hearing before Mr Justice Morris on 27 March 1995 and, in an ex tempore judgment, he refused to make the order sought. From that order the plaintiff now appealed to the Supreme Court.

Mr Justice Keane said that counsel on behalf of the plaintiff submitted that the first named defendant should be required to give details of the examination he claimed to have undertaken, including the history taken, details of the observations and symptoms and the diagnosis made and, in particular, the terms in which he allegedly advised the parents to return the child to hospital. He submitted that the plaintiff was entitled to be furnished with this information in order adequately to deal with this plea in the defence citing in support the decision of the Supreme Court in Mahon v Celebridge Spinning Co [1967] IR 1.

Order 19, rule 7(1) of the Rules provides that a further and better statement of the nature of the claim or defence, or further and better particulars of any matters stated in any pleadings, notice or written proceedings requiring particulars, may in all cases be ordered upon such terms, as to costs and otherwise, as may be just.

Mr Justice Keane said that in considering whether in this case, or any other, particulars should be ordered, the purpose of pleadings, of which particulars form part, must be borne in mind. In the above entitled case, it was stated that the whole purpose of a pleading is to define the issues between the parties, to confine the evidence of the trial to the matters relevant to those issues, and to ensure that the trial may proceed to judgment without either party being taken at a disadvantage by the introduction of matters not fairly to be ascertained from the pleadings. Judged by each of those tests, it appeared to Mr Justice Keane that the plaintiff was not entitled to the particulars sought. The defendant, in addition to denying the various allegations of negligence and breach of duty made against him in the statement of claim, had specifically pleaded that the plaintiff was visited by him on 22 October 1987 and that his parents were advised to bring the plaintiff back to the hospital immediately. In the reply to the defence of the first named defendant, the plaintiff, in addition to joining issue on the defence generally, admitted that he was visited by the first named defendant on 22 October 1987 but denied that the plaintiff's parents were then advised by the first named defendant to bring the plaintiff back to the hospital.

Mr Justice Keane said that thus, so far as this part of the case was concerned, the issues were defined between the parties, who will be confined at the trial to the matters relevant to those issues. There was no ground on which it could be suggested that the trial of the action could conclude with the plaintiff having been taken at a disadvantage by the introduction of matters which could not fairly be ascertained from the defence. At the very least, the plaintiff knew in broad outline what was going to be said at the trial in relation to the visit on 22 October 1987. He concluded that the machinery of pleadings and proceedings is not a substitute for the oral evidence of witnesses and their cross examination before the trial judge. He dismissed the appeal and affirmed the order of the learned High Court judge.

Solicitors: W. Terence Liston & Co. (Dublin) for the plaintiff; Hayes & Co. (Dublin) for the defendants.