An application by the HSE and the Child and Family Agency to dismiss alleged negligence claims brought against them by a couple who claimed they contracted Hepatitis A following an outbreak at a creche their children attended has been dismissed by the High Court.
The man and woman, who have separated since they contracted the disease, have sued the Child and Family Agency (CFA), also known as Tusla, the HSE and the operators of the creche after they contracted Hepatitis A in 2015.
The couple cannot be identified by order of the court.
Two of their children attended the Dublin-based creche, and they both claim they required medical treatment at hospitals after contracting the disease.
In a pre-trial application, both the CFA and HSE sought to have the pair's claims against them struck out on the grounds of inordinate and inexcusable delay.
Lawyers for the man and woman opposed the applications and argued the defendants had suffered no prejudice arising out of the delays.
The court heard the applicants had endured very difficult personal circumstances in and around the time of the alleged outbreak and afterwards.
Strain
After contracting Hepatitis A, they claim they 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.
In a judgment, Mr Justice Anthony Barr said that while the delay in prosecuting the case was both inordinate and inexcusable, the court was satisfied that the balance of justice weighs in favour of allowing the actions to proceed.
Mr Justice Barr said the pair claim that the creche failed to adhere to proper health, safety, and hygiene requirements.
They also claim the HSE and CFA had statutory responsibility for inspection and supervision of the childcare facilities, such as the creche that the plaintiffs' two children had attended.
The HSE and CFA 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 Hepatitis A outbreak.
The woman claims she was pregnant at the time of the outbreak, and after being hospitalised over the outbreak, her labour had to be induced early.
The HSE and CFA claimed 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 4.5 years in them furnishing replies to certain issues raised in particulars by both the CFA and the HSE.
The judge accepted there had been a delay by the plaintiffs in prosecuting their actions. However, he said he was entitled to have regard to their difficult personal circumstances and he further held that they "did not sit back" and "do nothing".
The judge said he could not find that the delay had prejudiced the CFA and HSE, adding that the case will "ultimately turn" on documentary evidence rather than oral evidence.
There was no claim that any relevant documents have been lost or destroyed.
The judge, who put in place a timetable for the exchange of documents in the case, added that the case should be put down for hearing within a reasonably short period of time.
If this did not occur, the judge said the court would allow the HSE and CFA to remake their application to dismiss the claims against them.
