The defendants were both domiciled in Belgium for the purposes of Article 2 Council Regulation No. 44 / 2001 (EC) (the “Brussels Regulation”).
The High Court found that Ireland was not the appropriate jurisdiction to determine the claims of professional negligence, but that it was the correct forum to hear the contract claim.
The proceedings themselves arose from a gastric bypass procedure performed on the plaintiff, Mr McDonald, by the second named defendant, Dr Van Der Sypt, at the AZ Saint Elisabeth Hospital, the first named defendant, in Belgium on 6 March 2007. Both the first and second named defendants argued that the Irish Court lacked jurisdiction to hear the case as they were both domiciled in Belgium.
In February 2007, the plaintiff sought treatment for obesity and consulted a UK based English language website which offered services provided by the defendant hospital. The promotional material on the website was directed at both the UK and Ireland (as the literature was not provided in Flemish or French). Prices for the initial consultation were offered in both sterling and euro.
On 5 March 2007, the plaintiff underwent the operation in the defendant hospital in Belgium. He used his Irish address on all correspondence with the defendants, including the invoice for the treatment, which he paid following the operation. The plaintiff returned to Ireland and thereafter travelled to Wales. During his stay in Wales, he fell ill and was admitted to hospital.
The Court relied on EU jurisprudence and concluded that the plaintiff was a “consumer” for the purposes of the Brussels Regulation, because he was acting outside his trade and profession when he availed of the medical services supplied by the defendant hospital, which were clearly personal to his condition.
The Court found that there was no contract with Dr Van Der Sypt because he was merely a consultant employed by the defendant hospital and as a result, any claim against Dr Van Der Sypt was a claim in negligence only. There was therefore no suggestion that the “harmful event” for the purposes of Article 5(3) which gave rise to the negligence claim occurred in Ireland. The Court dismissed the proceedings against Dr Van Der Sypt for want of subject matter to determine jurisdiction.
The position of the defendant hospital was different however. The plaintiff entered into a contract with the hospital under which it provided medical services. The Court noted that the hospital's obligations did not differ materially from the obligations imposed by the general law of negligence on healthcare professionals. The Court concluded that generally speaking, these kinds of claims are characterised by the Irish legal system as tortious. However, this could not take away from the fact that there was an existing contract between the patient and the defendant hospital.
To determine whether the defendant hospital “directed” its services at Ireland, the Court relied on the test set out by the European Court in Hotel Alpenhof GmbH v Oliver Heller ( E.C.R. I-12527). In that case, the Court held that it should be determined whether it was apparent from the website and from the traders overall activity, that he envisaged doing business with consumers domiciled in other member states, including the member state of the consumers domicile and that he had the intention of concluding a contract with the consumer.
The Court found that the plaintiff in this case came within the Hotel Alpenhof test, because the defendant hospital clearly envisaged doing business with patients domiciled in Ireland.
The Court concluded it had no jurisdiction to hear the claim in negligence against Dr Van Der Sypt. Notwithstanding this finding, the plaintiff was nonetheless entitled to pursue the claim in contract against the defendant hospital on the basis that he was for all intents and purposes a consumer under Article 15(c) of the Brussels Regulations. The Court went on to say that the claim in question was a contractual claim, even though a claim of this nature is generally characterised by Irish law as a claim in tort.