Tolan v Brindley Manor Federation of Nursing Homes Ltd (Approved)

Factual and Procedural Background

The Plaintiff's uncle, a 76-year-old male, underwent lung surgery for cancer on 24 June 2021 and was discharged from hospital into the care of the Defendant's nursing home on 6 July 2021. On 7 July 2021, the Plaintiff observed a significant deterioration in his uncle's health, reporting symptoms including pain, shortness of breath, and heavy breathing to the nursing home staff. Despite the Plaintiff's efforts to have a GP examine his uncle, the nursing home nurse declined to summon a doctor after consulting the GP. Later that evening, the uncle collapsed and subsequently died at 19:10 hours. A post-mortem identified pulmonary thromboembolism and ischemic heart disease as the cause of death.

The Plaintiff initiated proceedings on 6 July 2023 by plenary summons and served a statement of claim on 15 December 2023 alleging negligence and breach of contract by the Defendant in failing to respond adequately to the deterioration in the deceased's condition. The Defendant entered appearance on 3 August 2023 and filed a motion on 1 July 2024 seeking dismissal of the action on multiple grounds.

At the hearing on 3 June 2025, the Plaintiff did not appear, citing confusion over court dates, but the court proceeded in his absence.

Legal Issues Presented

1. Whether the Plaintiff has locus standi to maintain the proceedings given the lack of a grant of probate despite being named executor.
2. Whether the Plaintiff has established a stateable cause of action in negligence by providing sufficient medical evidence to satisfy the 'but for' causation test.
3. Whether the proceedings should be dismissed for being commenced by plenary summons and statement of claim rather than by personal injury summons as required by the Civil Liability and Courts Act 2004.

Arguments of the Parties

Defendant's Arguments

• The Plaintiff lacks locus standi since he has not obtained a grant of probate, which is necessary to bring a fatal injury claim under the Civil Liability Act 1961 (as amended).
• The Plaintiff has failed to establish causation as required by the 'but for' test; medical evidence indicates that even if the deceased had been examined or transferred earlier, the outcome may not have changed.
• The Plaintiff commenced proceedings using the incorrect form (plenary summons and statement of claim) instead of a personal injury summons, thus avoiding the obligation to provide an affidavit of verification, warranting dismissal of the proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Casey v Casey [2023] IEHC 643	Executor named in will may institute proceedings prior to grant of probate but proceedings may be stayed pending grant.	The court applied this principle to stay proceedings to allow the Plaintiff to obtain grant of probate rather than dismissing the case.
Quinn v Mid Western Health Board [2005] 4 IR 1	The 'but for' test is the standard for causation in Irish negligence law.	The court acknowledged the 'but for' test but found causation a nuanced issue unsuitable for strike out at this stage.
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32	Material contribution test applies in exceptional cases where causation cannot be precisely proven.	The court referenced this case to illustrate alternative causation tests but did not definitively apply it.
McGhee v National Coal Board [1973] 1 WLR 1	Material contribution to risk can suffice for causation where medical evidence is insufficient to prove direct cause.	Used to support discussion on causation complexity and the possibility of departing from strict 'but for' test.
Philip v Ryan [2004] 4 IR 241	Damages may be recoverable for loss of chance or opportunity in medical negligence.	Referenced to highlight nuances in causation and damages related to missed or delayed diagnosis.
Davey v Wallace and Another [2025] IEHC 146	Interpretation of O.19, r. 28 Rules of Superior Courts on striking out proceedings.	The court relied on this authority for the standard and sparing exercise of strike out jurisdiction.
O'Malley v National Standards Authority of Ireland and Anor [2024] IEHC 500	Principles governing strike out jurisdiction.	Reinforced the court's cautious approach to striking out proceedings.
Fay v Tegral Pipes Limited [2005] 2 IR 261	Standards for striking out cases.	Supported the court's reasoning on the sparing use of strike out powers.
Barry v Buckley [1981] IR 306	Jurisdiction and principles for dismissing cases.	Confirmed the continuing relevance of traditional strike out principles.
Kelly v Allied Irish Banks [2019] IESC 72	Principles on strike out and abuse of process.	Used to affirm the court’s approach to the exercise of strike out jurisdiction.

Court's Reasoning and Analysis

The court first addressed the issue of locus standi. While the Plaintiff had not obtained a grant of probate, he was named sole executor in the deceased’s will. The court relied on Casey v Casey to determine that the appropriate remedy was to stay proceedings to allow the Plaintiff to obtain probate, rather than striking out the case.

Regarding causation, the court acknowledged that the 'but for' test is the standard in Irish law as confirmed in Quinn v Mid Western Health Board. The Defendant’s medical evidence suggested that even with earlier medical intervention, the death may not have been prevented. However, the court found the causation question to be complex and nuanced, noting that the Plaintiff had established a prima facie case of negligence by showing the Defendant's duty to respond to deterioration in the deceased’s condition. The court declined to strike out the proceedings on this basis, recognizing that the issue required further evidence and argument.

On the procedural issue, although the Plaintiff commenced the action by plenary summons and statement of claim rather than by personal injury summons as required by the Civil Liability and Courts Act 2004, the court found this to be a technical defect that could be remedied by directions. The court did not find evidence that the Plaintiff was attempting to avoid procedural requirements deliberately and therefore refused to dismiss the case on this ground.

The court also reviewed the applicable rules on striking out proceedings under O.19, r. 28 of the Rules of the Superior Courts, emphasizing that strike out powers should be exercised sparingly and only where a case is bound to fail or an abuse of process is evident.

Holding and Implications

The court REFUSED the Defendant’s application to strike out the Plaintiff's proceedings.

The court ordered a stay of proceedings until the Plaintiff files an affidavit exhibiting a grant of probate for the deceased’s estate and an affidavit of verification in respect of the plenary summons and statement of claim. The pleadings filed are to be deemed in lieu of a personal injury summons.

The decision preserves the Plaintiff’s right to pursue the claim, subject to compliance with procedural requirements. No new precedent was set, and the ruling underscores the court’s cautious approach to strike out applications, particularly in cases involving complex issues of causation and procedural technicalities.