Case over Hepatitis A creche outbreak can proceed against HSE and Tusla, judge rules

The High Court has rejected the Health Service Executive and Tusla’s application to dismiss negligence claims brought against them by an estranged couple who contracted Hepatitis A following an outbreak at their children’s creche.

The man and woman, who cannot be identified by order of the court, sued Tusla, the child and family agency, the HSE, and operators of the creche after they contracted Hepatitis A in 2015.

Two of their children attended the Dublin-based creche, and, they claim, they required medical treatment at hospitals after contracting the disease.

Difficult personal circumstances

Tusla and the HSE sought to have the couple’s claims against them struck out on the grounds of inordinate and inexcusable delay.

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Lawyers for the couple opposed the pre-trial applications and argued that the defendants had suffered no prejudice arising out of the delays complained of.

The court heard the young couple had endured very difficult personal circumstances in and around the time of the alleged outbreak and afterwards.

The court heard that after contracting Hepatitis A the plaintiffs and their children had to move out of their apartment for a period and live with relatives while that property was sterilised and underwent a “deep clean”.

After bringing their claim, their relationship came under strain and they eventually separated.

The father suffered from drug addiction for a period, the court heard. The mother later entered a new relationship with a man who assaulted her and was abusive. At one point she lost custody of her children to her former partner.

In a judgment, Mr Justice Anthony Barr said that while the delay in prosecuting the case was inordinate and inexcusable, the court was satisfied that the balance of justice weighs in favour of allowing the actions to proceed.

The judge said that the plaintiffs claim the creche failed to adhere to proper health, safety, and hygiene requirements. They also claim the HSE and Tusla had statutory responsibility for the inspection and supervision of the childcare facilities. The HSE and Tusla are alleged to have failed to inspect, supervise, and monitor the creche properly and had failed to notify parents whose children attended the creche of the outbreak of that disease.

Delay by plaintiffs

The woman claims she was pregnant at the time of the outbreak. She claims that after being hospitalised over the outbreak, her labour had to be induced early.

The HSE and Tusla claimed that there had been an 11-month delay by the plaintiffs in commencing their actions.

It was also claimed there had been an additional delay of 4½ years in them furnishing replies to certain issues raised by Tusla and the HSE.

The judge accepted there had been a delay by the plaintiffs in prosecuting their actions. He said he was entitled to have regard for their difficult personal circumstances. He further held that they “did not sit back” and “do nothing”. The judge said he could not find that the delay had prejudiced Tusla and the HSE. The case will “ultimately turn” on documentary evidence rather than oral evidence, he said.

There was no claim that any relevant documents have been lost or destroyed.

The judge said the case should be scheduled for hearing within a reasonably short period of time. If this does not occur, the judge said, the court will allow the HSE and Tusla to remake their application to dismiss the claims against them.