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Healthcare & Medical Update: Personal Injury Case Allowed to Continue Despite 13 Year Delay

03 October 2018

Background

Shu Zhang, a Chinese national studying in Ireland, was hit by a bus in Dublin on 12 October 2004. She suffered a catastrophic brain injury and as a result had no memory of the incident. At the time, investigations were carried out by police and the bus company, Bus Éireann. Two eye witnesses gave statements.

Legal proceedings

A claim against Bus Éireann and the driver was brought on Ms Zhang’s behalf by her aunt. The Personal Injuries Assessment Board (PIAB), the independent state body which assesses personal injury compensation, gave its authorisation to initiate proceedings in November 2006. A personal injuries summons was not served in time but after being renewed by the High Court was served in February 2009. From July 2012 the claim became dormant for almost three years.

In March 2015 Ms Zhang’s solicitors resurrected the claim and attributed the delay to an engineers’ report awaited from the UK. Bus Éireann threatened to issue a motion to dismiss the claim because of inordinate and inexcusable delay. However, it later agreed to defer the motion for 21 days for a trial date to be fixed with the agreement of both sides. Despite repeated warnings about the delay being prejudicial, the bus company’s solicitors agreed in March 2017 to defer the motion again to fix a trial date but the trial did not happen as the engineer’s report was still not available.

Around this time Bus Éireann attempted to make contact with one of the eye witnesses. However, there was uncertainty as to the identity of this person and after numerous attempts to establish contact, the bus company was unsuccessful in the attempt to find him. Bus Éireann then issued the motion to dismiss for inordinate and inexcusable delay.

Guiding principles

The Court approved the following principles in deciding the motion:

  • Bus Éireann had to show the delay was inordinate and inexcusable, and that the balance of justice required the case to be dismissed
  • Delay must be assumed to be prejudicial to Bus Éireann but the prejudice had to be weighed against the clear prejudice to Ms Zhang, with a catastrophic brain injury, if her case was stopped
  • The conduct of both sides had to be considered to arrive at the fairest outcome

Submissions and evidence

Lawyers for Ms Zhang accepted that the delay was inordinate but not inexcusable because:

  • Instructions were needed from Ms Zhang’s parents who did not speak English
  • A number of engineers had to be contacted before a report was obtained

The main reasons for the case to be dismissed were Bus Éireann's inability to rely on the version of events of one of the eye witnesses and the impact of the delay on the memory of other witnesses.

Decision

There was no evidence that social media was searched to find the missing witness. The Court suggested that the missing eye witness, who was believed to be a “chef and musician”, was likely to have a digital footprint, which would increase the chances of finding him on social media. Searching social media for witnesses was a regular activity and the Court was struck that only one attempt had been made to trace the witness, some 12½ years since the incident. There was no evidence that the situation would have been any different if the same search happened six months or a year after the incident. Up to March 2017, Bus Éireann was prepared to go ahead with the trial without knowing at that stage if the witness was available to them which weakend their complaint of prejudice.

The Court ultimately found the delay to be both inordinate and inexcusable. However it dismissed the motion because:

  • There was insufficient evidence that the witness was not available for the trial
  • His non-availability created only moderate prejudice for Bus Éireann
  • The evidence of the other witnesses was contained in written statements taken at the time of the accident which were available to refresh their memory
  • The circumstances of the accident were largely uncontroversial especially as Ms Zhang had no memory of the event
  • As a result of her injury, she was personally blameless in relation to issues of delay and if her claim was dismissed, this would create a significant issue for her
  • The balance of justice required the case to proceed with case management to ensure no further delay

Take Aways

When defending personal injury cases, care must be taken to contact witnesses as soon as possible after the event and maintain regular contact with them.

If a witness becomes un-contactable, use social media to search for them and keep detailed records of the efforts made to find them. You may have to rely on these in court.

If a claimant is not progressing their case, do not delay unduly in moving the case to trial or bringing a motion to dismiss for delay. Remember that the efforts of both sides to move the case on will be reviewed by the court in deciding the fairest outcome.

Where the claimant is not personally responsible for delaying a case and it can be shown that they have much to lose if it is dismissed, the court may show greater sympathy. However this will be short lived and is not an excuse to delay.

To learn more about this case and how its outcome affects your organisation, contact a member of our Healthcare & Medical Law team. 


The content of this article is provided for information purposes only and does not constitute legal or other advice.

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