Causation Issues
Cases
Philp v Ryan
Supreme Court, December 17, 2004 JUDGMENT delivered on the 16th day of December, 2004 by FENNELLY J.
The Court has already pronounced its decision on this appeal. It has increased the damages awarded to the Plaintiff/Respondent by Peart J in the High Court from the sum of €45,000 to €100,000.
The action was one for professional negligence against both defendants arising from the first-named defendant’s failure to diagnose that the plaintiff was suffering from prostate cancer and not prostatitis as he found.
Liability was in issue in the High Court, but the appeal by the defendants was limited to the question of damages. The plaintiff lodged a cross appeal claiming that the damages awarded were inadequate. Two points were made in the cross appeal:
· That no damages were awarded for possible loss of life expectancy;
· That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.
On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his general practitioner. He complained that he had been unable to pass urine since the previous day and of abdominal pain. Pathology reports in respect of urine samples indicated that there was “no bacterial growth” and a seriously elevated PSA level of 168. The first-named defendant diagnosed acute prostatitis. The expert evidence for the plaintiff at the trial was to the effect that, based on his clinical symptoms, the pathology reports, and other factors this could not have been a case of acute prostatitis. In fact, the test results suggested that the plaintiff almost certainly had cancer which had spread – metastased – outside the prostate into other parts of the body.
This view of the matter was not seriously disputed by the defendants’ experts. At this stage, of course, there is no issue but that the plaintiff’s condition was disastrously misdiagnosed due to the negligence of the defendants. However, it was also tragically clear that the plaintiff’s cancer was, in any event, already at an advanced stage when he first presented to the first-named defendant. The real issue on this aspect of the appeal, therefore, was the extent to which the plaintiff was entitled to be compensated in damages for misdiagnosis, where he was never going to recover fully. Was the plaintiff entitled to recover damages for being deprived, as a result of not being informed of it, of the opportunity to consider possible treatment for his cancer?
It is material, firstly, to set out the principal findings of the learned trial judge on the negligence issue. The learned trial judge held that the first-named defendant was negligent in diagnosing prostatitis to the exclusion of any other possibility. Consequently, he did not tell the plaintiff that he was suffering from cancer or arrange any other necessary tests. The negligence of the first-named defendant resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he should have. Specifically, he was deprived of an opportunity to have a discussion between July 2001 and March 2002 with the first-named defendant, or indeed any other medical person about his disease and the alternatives for treating him.
The arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but had been missed by the first-named defendant.
The learned trial judge found that the plaintiff had reasonable grounds for believing that his life expectancy was less than it would have been had the correct diagnosis been made in July 2001, and that this caused him great upset.
Turning to the question of damages, the learned trial judge said:
“I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for fearing that his life has been shortened.”
When he came to quantify damages, he said:
“As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as a result of the negligence of the first named defendant. The plaintiff’s evidence was that on receiving the letter on 10th March 2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been shortened is a matter perhaps we will never know” (Emphasis added).
The plaintiff did not, therefore, recover damages for loss of life expectancy. It was contended, on his behalf that, if his cancer had been correctly diagnosed in the summer of 2001, he would have been advised of the various treatment options that would have been open to him. The principal option would have been hormone treatment. While this treatment was by no means assured of success and could be accompanied by undesirable side effects such as impotence, there was a well-established professional view that life could be prolonged to a significant degree.
The learned trial judge conducted a meticulously detailed analysis of the expert evidence given before him and of the professional literature on this question. His conclusions were that:
• there are two well respected schools of thought within the medical profession as to the pros and cons in general of immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in accordance with either;
• however, it is more likely than not that in relation to this particular plaintiff’s disease as of July 2001 that had the correct diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the circumstances of this case he was deprived of that opportunity;
• if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under constant observation in order to see how the disease was progressing;
• it was not reasonable, on the evidence, to assume that the delay of eight months in the correct diagnosis had had no adverse impact on the plaintiff’s life expectancy and quality of life, and it is not reasonable for the first-named defendant to say that by not knowing that he had cancer, he was better off in the sense that he could go about his life during that eight months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be informed about a serious matter regarding his health, and his right to plan his future in the light of that knowledge.
On the balance of probabilities, the learned trial judge was of the view that, having been deprived of an opportunity of considering having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that was that the plaintiff had suffered distress by having a reasonable belief that his life had been shortened by anything from 8 months to two years, and that on the evidence there was a reasonable basis for that belief. Based on these considerations, he decided to award a single sum to take account of the anger and distress suffered by the plaintiff.
However, he did not award any damages for the fact that the plaintiff, not having been informed of his condition in June 2001, was deprived of the opportunity of beneficial treatment. In particular, he did not award any damages for the loss of opportunity to be advised of treatment which might have had the effect of prolonging his life, even by a short period.
This is not to say that the learned trial judge did not consider this aspect of the claim. On the contrary, he discussed it with elaborate care and set out the competing views very fully.
Firstly, he referred to the evidence of the plaintiff’s expert witness, Dr Shah, to the effect that there was “a definite benefit for early therapy in patients who present with prostate cancer.” He thought that the “critical issue related to diagnosis at earliest possible opportunity.” He was of the opinion that the “advantage of early therapy is somewhere between eight months and three years.” The treatment postulated was hormone therapy. Dr Shah relied on a study of 1997 by the Medical Research Council in the UK. There was, sadly, no question of the plaintiff being completely cured. It was a question of whether his life could have been prolonged. This view was supported by the other medical expert called for the plaintiff, Dr Hardman.
The evidence of Mr Denis Murphy, Consultant Urologist called on behalf of the Appellants was that it was better to defer hormone treatment. He said that there was a very broad spectrum of opinion as to whether hormone treatment should be initiated immediately on diagnosis. He did not think the plaintiff would have had any better prognosis if he had been diagnosed earlier.
Referring to this evidence and to the conflicting evidence in what he called the “academic debate” about the merits of earlier hormone treatment, the learned trial judge said:
“What is beyond any doubt is that there are two respectable schools of medical opinion in relation to a general question as to whether it is better to hormonally treat a patient as soon as a diagnosis of localized prostate cancer has been made, or whether it is more beneficial to the patient to wait until that disease has progressed to other parts of the body, or indeed whether it is better to wait beyond that until the patient has actually developed symptoms.”
He posed the following question:
“But what is important to deal with is whether, by reference to the studies and material and the evidence adduced in relation to this matter, it is on the balance of probabilities likely that this particular plaintiff, Mr. Philp, given his particular characteristics of disease in July 2001, has had his life shortened by his treatment being delayed until March 2002, resulting from the missed diagnosis in July 2001, or is Mr Ryan on the balance of probabilities correct when he submits that he would, according to the school of thought to which he adheres, have been correct or justified in any event to have deferred hormone treatment until March 2002 and without any adverse consequences for the plaintiff as far as life expectancy is concerned.” (emphasis added).
At one point, the learned trial judge appeared to lean in favour of the plaintiff’s evidence, when he said:
“I believe there is ample support for the plaintiff’s belief that in all probability he, given his specific condition, at least had a more than 50% possibility that immediate hormone treatment in July 2001 would have been beneficial. Such treatment would have to have been discussed with the plaintiff, and I believe that if Mr Ryan had failed to discuss these options with the plaintiff in July 2001, he would have been in breach of his duty of care. I am not going so far as to say that if Mr Ryan recommended deferred treatment to the plaintiff, and the plaintiff took that advice, that Mr Ryan would be negligent in so recommending. I am simply pointing to the need to have the options clearly placed before Mr Ryan so that an informed decision could be made by the plaintiff in relation to the options. It is always open to a patient to not take advice from his doctor once he has been fully informed as to all relevant considerations – especially in a situation such as the plaintiff’s where there is no unanimity in medical opinion as to the correct course of treatment.”
However, in the final analysis, he did not award damages for this aspect of the claim. His approach appears from the following:
“I cannot make a definitive conclusion in relation to whether his life has been shortened, or by how long, simply because the whole question is the subject of such debate, as I have shown, but I can conclude that on the balance of probabilities, the fear that his life has been shortened is a reasonable fear, and the distress caused to the plaintiff in that regard is reasonable, and for which he entitled to be compensated.”
It must be recorded, of course, that this issue comes before the court only by way of cross appeal. The appeal has been taken to this court not by the plaintiff but by the defendants. However, the court was quite satisfied that the appeal of the defendants on the ground that the damages were excessive was without merit. The award of €45,000 was amply justified by the findings of the learned trial judge regarding the real anguish and distress suffered by the plaintiff. Furthermore, I fully agree with the judgment of McCracken J that an award of aggravated damages should have been made. The failure of the defendants’ solicitors to inform the plaintiff’s solicitors that the first-named the defendant had falsified the clinical note upon which they had placed such heavy reliance in pre-trial procedures was reprehensible in the highest degree. This behaviour was calculated to deceive the plaintiff, his advisers and the court on a material matter. Regrettably the defendants made a deliberate decision not to correct the false impression they had earlier conveyed to the plaintiff that there would be evidence supported by a genuine contemporaneous note that the plaintiff had been advised to have a further test carried out.
It remains only to deal with the cross appeal relating to the failure of the learned trial judge to award damages for possible or probable loss of life expectancy. The cross appeal alleges that it was wrong not to make an award of damages under this heading once it had been found that it would not be reasonable to assume that the delay of some eight months in making the correct diagnosis had no adverse effect on the plaintiff’s life expectancy.
The learned trial judge appears to have posed a test of probability of success on the Appellant’s entitlement to damages for loss of the opportunity to have hormone treatment. Damages depended on proof that life would probably, not possibly, have been prolonged.
The plaintiff claims an entitlement to be compensated for the loss of an opportunity to elect for treatment of his cancer on the basis of correct diagnosis and appropriate medical advice. Assuming such correct diagnosis, he claims that there was a possibility that his life could have been prolonged to some extent. It is common case that the chances of successful treatment were, at best, problematical. There is no dispute as to the trial judge’s view that medical academic opinion was divided on the benefits of hormone therapy.
The defendants argued that this type of lost opportunity was not valuable in the sense that it should not attract compensation unless it could be proved that the postulated treatment would probably have been successful. Mr Patrick Keane, Senior Counsel for the defendants went so far as to submit that a forty nine percent chance of successful treatment would not confer an entitlement to damages, though a fifty one percent chance would. Asked how this was reconcilable with the universal practice of allowing for percentage risks below fifty of the future development of conditions such as arthritis or epilepsy, he sought to distinguish these examples as being on the debit side only. These were negative possibilities for an injured person, whereas, in the present case, the plaintiff seeks compensation for the loss of a beneficial opportunity.
Before considering the authorities cited by Dr John White, Senior Counsel for the plaintiff, I should say that it seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice. It is commonplace that allowance is made in awards and in settlements for the risk that an injured plaintiff may in the future develop arthritis in an injured joint. The risk may be high or low – a fifteen percent risk is often mentioned – but damages are paid. I cannot agree that this is any different from what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity to avail of treatment. It might, with equal logic, be described as an increased risk of shorter life expectancy. It seems to me as illogical to award damages for a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis that it will not happen at all.
This precise matter was dealt with by this Court in Dunlop v Kenny (Unreported, 29th July 1969). O’Dálaigh C.J. delivered the unanimous judgment. It was held that the jury had been misdirected to the effect that the plaintiff would suffer from epilepsy, when the evidence was that there was “a risk of major epilepsy.” O’Dálaigh C.J. held that the trial judge had overstated the risk. He did not, however, state that there should be no award under this heading. The following passage very clearly indicates the correct approach:
“In cases such as this, where there is an issue of possibility or probability of some disability or illness arising or developing in the future, the damages to be awarded should be commensurate with, and proportionate to, the degree of that possibility or probability as the case may be. If the degree of probability is so high as to satisfy a jury that it remains only barely possible that the condition will not occur, a jury would justified in acting upon the assumption that it will occur, and should measure the damages accordingly. On the other hand, if the probability that no such event will occur is so great that it is only barely possible that it would occur, damages should nevertheless be awarded, but should be proportionate the degree of risk, small though it might be.”
This statement applies, of course, only to the assessment of damages for future uncertain events. In respect of past events, whether related to liability or to the causation of damage or loss, the normal rule of proof on the balance of probability applies. These issues were considered by the House of Lords in Davies v Taylor [1974] A.C. 207. That was a claim for damages under the Fatal Accidents, 1846. The plaintiff brought the claim arising from the death of her husband. At the time or the death, she was estranged from him and he had instructed solicitors to commence proceedings for divorce. In support of her claim for loss of future dependency, she said that reconciliation would have taken place. The House of Lords were unanimously of the view that the trial judge had mistakenly held that no sum was recoverable.
Certain passages from the speeches of the Law Lords provide solid support for the approach I have outlined for this case. Lord Reid spoke at page 213 as follows:
“When the question is whether a certain thing is or is not true- whether a certain event did or did not happen – the court must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent ; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.
“Injury” in the Fatal Accident Acts does not and could not mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing.
If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent and a 40 per cent probability? The 40 per cent case will get nothing but what about the 60 per cent case.? Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.”
Lord Simon at page 220 of Glaisdale spoke to similar effect:
“…But this is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependant spouse of a stable union, according as the possibility became progressively more remote. But she would still e entitled to some down to the point where the possibility was so fanciful and remote as to be de minimis.”
The assessment of future losses is, on occasion, a matter of mathematical calculation. In certain cases, the courts are accustomed to resorting to the evidence of actuaries, who are expert in calculating the present capitalised value of a combination of future events of greater or lesser likelihood. They can build in allowance for the occurrence of a variety of possibilities including likely age of death or retirement. Nobody suggests that their calculations must be posited on the probable as distinct from the possible happening of each event. Their reports would be deeply flawed if they were.
In my view, the plaintiff should receive an award for the loss of the opportunity to be advised correctly and treated accordingly. Taking this element together with the element of aggravation of damage by the judgment of McCracken J, I believe the sum of €100,000 represents to correct level of the award. I would, therefore, dismiss the appeal and allow the cross appeal substituting the sum of €100, 000 for the sum of €45,000 awarded in the High Court, that increased sum to include both compensation for the loss of life expectancy and the aggravation of damage dealt with in the judgment of McCracken J.
7
THE SUPREME COURT
134/04
144/04
Murray CJ
Fennelly J
McCracken J
Between:
David Philp
Plaintiff
AND
Peter Ryan & Bons Secours Hospital
Bon Secours Health System
Defendants
Judgment of Mr Justice McCracken delivered the 17th day of December 2004
__________________________________________________________
In this judgment I propose to deal only with the question of whether the Plaintiff is entitled to aggravated damages by reason of the behaviour of the Defendants in the preparation and presentation of their case.
In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 the circumstances in which aggravated or exemplary damages could be awarded was considered by this Court. In the present case the Plaintiff does not claim exemplary damages such as were ultimately awarded in that case, but does claim aggravated damages. At page 317 Finlay CJ dealt with several types of damages which could be awarded and said:-
“2. Aggravated damages, being compensatory damages increased by reason of:-
(a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in anyway finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who is being wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.”
In the present case, the Plaintiff relies on the last of these factors as entitling him to aggravated damages. In Swaime v. Commissioners of Public Works [2003] 1 IR 521, where the question of aggravated damages was considered in the light of a claim for negligence against the defendants in exposing the plaintiff to the risk of contracting mesothelioma, Keane CJ said at page 525, after referring to the Conway case:-
“Although the then Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”
He then went on to comment that in a claim for negligence one would not expect the circumstances giving rise to aggravated damages to arise because:-
“Most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”
However, after referring to the English decision of Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v. O’Connell (unreported 5th June 1997) the Chief Justice continued at page 528:-
“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued. In the present case, however, I am satisfied that, while the defendants were unquestionably guilty of what the trial Judge described as ‘the grossest negligence’, that factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those referred to in the judgment of Finlay CJ in Conway v. Irish National Teachers Organisation [1991] 2 IR 305, or factors of a similar nature.”
It should be said that the authorities referred to by Keane CJ in that passage were not cited in this case either, and the applicability of aggravated damages to actions in negligence was not argued at any length in this Court. However, it must be emphasised that the claim for aggravated damages in the present case is not based in any way on the degree of negligence of the Defendants, but rather on their behaviour subsequent to the negligent acts.
The basis for the aggravated damages in the present case lies in the clinical notes of the first named Defendant in relation to the consultation with the Plaintiff on 12th July 2001. The relevant entry, dated 12/7/01, reads:-
“ROC at OPD today
for see DECO1
PSA 6/52”
It is quite clear from looking at the notes that they purport to be a contemporaneous account of what occurred on the various dates set out in those notes. The Plaintiff gave evidence that the first line was his shorthand for “removal of catheter at outpatients department today”, that the word “For” was his abbreviation for what he planned to do and that he was to see the Plaintiff in December 2001. In the course of his evidence he conceded that the words “PSA 6/52”, which was intended to convey that the Plaintiff was to have a PSA test in six weeks, was an addition which he made to the notes at a later date, namely in December 2002 when he received a letter from the Plaintiff’s solicitor threatening an action against him.
The Plaintiff’s advisors clearly had doubts as to the authenticity of these clinical records, and had refused to admit them in evidence unproved, although the Plaintiff did admit the hospital records without formal proof. The matter finally came to light on the sixth day of the hearing, during the evidence in chief of the first Defendant. He referred to his clinical notes in relation to a totally different matter and the learned trial Judge, who appears to have assumed that the clinical notes had been admitted, asked to see them. Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced. This was done, and at that stage the first Defendant disclosed that “PSA 6/52” was an addition which I made to the notes at a later date”. He explained this by saying that in December 2002, when he received a letter from the Plaintiff’s solicitor threatening an action against him, he reviewed his notes and he also reviewed his correspondence with the Plaintiff’s general practitioner. In the course of this correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six weeks time. He said that a letter to a general practitioner would normally be a more complete record, and he assumed that he had omitted this from his clinical notes. It should be noted that he did not say in his evidence in chief that he recollected having told the Plaintiff to have an additional test done in six weeks time.
Under cross-examination the first Defendant conceded that:-
“I do not say with certainty that I did that or that I gave that instruction to Mr Philp. I cannot remember the consultation. So if I understand your question to be asking me am I sure that I gave that direction to Mr Philp, can I say I asked him to have it done, the answer is no, I cannot say that.”
Subsequently in the course of cross-examination Counsel for the Plaintiff sought to ask him when was the first time that he had disclosed to anyone that he had altered the document. Through his Counsel, the first Defendant claimed privilege on the basis that he was being asked to disclose a communication between a client and his lawyer, and this objection was upheld. However, in cross-examination he did say that he had realised “recently” that there was a possibility that he did not advise the Plaintiff to have a test done as recorded in the notes and added:-
“And I then took the step of contacting my legal team and informing them of the situation in relation to the note.”
Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one week before the hearing and later said:-
“I at all times up to recently, by which I mean, you know, approximately, two weeks ago, was of the mind that I had asked for this PSA test to be done.”
He repeated on several other occasions in the course of the cross-examination that, before the action had commenced, he contacted his legal team and discussed the matter with them and sought advice.
The learned trial Judge, having heard all the evidence, stated at page 26 of his judgment:-
“Given Mr Ryan’s evidence in Court that he has no recollection of the consultation of the 12th July 2001, I cannot however accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor’s letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act, he inserted a note which he felt would assist him in his defence of what was obviously going to be a claim against him.”
This is an extremely serious finding against the first Defendant. It is a finding that the first Defendant deliberately and knowingly altered a document which he must have known would be used in court proceedings with the intention of, as the learned trial Judge said, assisting his case, which in fact means with the intention of deceiving the court, and of attempting to deprive the Plaintiff of damages to which he has subsequently been found to be lawfully entitled.
That matter is of itself extremely disturbing, because obviously the first Defendant had instructed his legal advisors that he had requested the Plaintiff to have a further PSA test in six weeks time. His legal advisors, quite properly at the time, in effect represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant. I will come to these matters later in the judgment.
In addition to misleading his legal advisors, the Plaintiff also sought to, and succeeded in, misleading his own expert witness. He prepared a case summary submitted to Mr Michael Murphy, a consultant urologist who gave evidence on his behalf, which was headed “Case Summary”. In the course of that case summary he made the following statements:-
“I asked him to have a serum PSA measurement carried out after six weeks in the Middle East and to contact me with the result.”
and
“Given that I felt that prostate cancer was only a remote possibility, would see it as good medical practice to try and avoid what appeared to be unnecessary worry and anxiety for a patient over a period of six weeks while his next investigative assessment (i.e. repeat serum PSA) was awaited. Had the follow-up PSA test been carried out as instructed and in the event that the follow-up PSA test was not showing signs of decreasing and indeed were it noted to be increasing, I would have expressed appropriate concern …..”
and
“What transpired was that Mr Philp did not contact me with a PSA result as requested.”
In my view this was a clear attempt to mislead a witness, who the first Defendant knew was going to give evidence as an expert, and therefore would be regarded by the Court in that light. Through misleading Mr Murphy, the first Defendant was again attempting to mislead the Court. Fortunately, the alteration was discovered before Mr Murphy gave his evidence, and was indeed roundly condemned by him.
The allegation that the Plaintiff had been asked to have a further test done in six weeks time was not just contained in the clinical notes and the report to Mr Murphy. It was also made in a number of ways to the Plaintiff’s legal advisors, albeit, as I have said, at a time when no doubt it was believed to be true by the Defendants’ legal advisors. On 1st July 2003 the Plaintiff was served with a notice to admit facts, and was asked to admit that he had been told by the first named Defendant to arrange to have a test carried out six weeks later. On 7th July 2003 interrogatories were administered to the Plaintiff requiring the Plaintiff to admit on oath that the first named Defendant told him on 12th July 2001 to arrange to have a PSA test carried out six weeks later and that it was important to have the test carried out. On 22nd May 2003 the first named Defendant swore an affidavit of discovery which disclosed his clinical notes, and when production of these were sought, it was the altered notes that were produced. In fact, despite its date, that affidavit of discovery was not furnished to the Plaintiff until the 24th June 2003. On 1st July 2003 the Plaintiff’s solicitors were asked admit the medical records held by the Defendants without formal proof. On 19th July 2003 the Defendants’ solicitors replied to a notice for particulars stating that “on the 12th July 2001 Dr Ryan instructed the plaintiff to have a serum PSA measurement carried out after six weeks in the Middle East and to contact him with the result”.
There is no doubt that faced with these documents, the defence against the Plaintiff’s case must have appeared to the Plaintiff’s advisors as being much stronger than it really was. The main plank of the Plaintiff’s case was that he was not told for some eight months after he became ill in July 2001 that he was suffering from prostate cancer. If in fact he himself had failed to comply with the first Defendant’s request to have a test carried out in six weeks time, then of course much if not all of the blame for the delay would have been attributable to the Plaintiff himself. He might well have been discouraged from proceeding with the action or have settled it at well below its value because of the apparent risk. Furthermore, had the alteration in the document not come to light somewhat fortuitously through the intervention of the learned trial Judge, the Defendants’ expert, Mr Murphy, would have given evidence on the basis that the alleged instruction had been given to the Plaintiff, and the first Defendant himself would not have been subjected to strenuous cross-examination in relation to this instruction. It is quite possible that the learned trial Judge in those circumstances would have found against the Plaintiff.
The truly appalling feature in this case is that it appears that the Defendants’ advisors were told of the alteration by the first Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those circumstances they did not inform the Plaintiff’s solicitors of the true facts. While a great deal of blame attaches to the first Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes in cross-examination of the Plaintiff or his advisors, although they did suggest in such cross-examination that he had been instructed to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished to the Plaintiff’s solicitors as being genuine, and that the facts stated in the alteration had formed part of the instructions to Mr Murphy.
In reviewing the law at the beginning of this judgment I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded. The Plaintiff has not given evidence of the effect of the misinformation which he received had on him. This is not something which the Defendants can complain about, because his failure to discover the true facts before he had closed his case was due entirely to what I can only describe as the misconduct of the Defendants’ advisors in not disclosing the alteration.
In the absence of direct evidence, in those circumstances in my view the Court is perfectly entitled to infer the probable effect that this false information had on the Plaintiff. It must be remembered that he is a man who had for the last two years known that he was suffering from prostate cancer and does not have long to live. He has undertaken proceedings based on the worry, anxiety and loss of opportunity which arose due to the negligence of the Defendants. One can only imagine the additional stress and anxiety which he must have suffered in the belief that there was, at least in documents shown to him, a strong defence to his action. The loss for which he has already been compensated due to the negligence of the Defendants has in my view been greatly increased due to the grossly improper behaviour of both the first Defendant and his legal advisors. This is clearly as case where already existing damages have been aggravated by such behaviour and I would award him a sum of €50,000.00 in addition to the compensatory damages awarded in relation to his basic claim, as set out in the judgment of Fennelly J, with which judgment I am in full agreement.
Quinn v Mid-Western Health Board
[2005] I.E.S.C. 19, April 8, 2005
JUDGMENT of Mr. Justice Kearns, delivered the 8th day ofApril, 2005.
The facts of this case and the evidence at trial are set out fully and
comprehensively in the judgment of the learned trial judge (O’Sullivan, J) in the High
Court and do not require detailed elaboration in this judgment.
The plaintiff was born on the 4th May, 1990 in Limerick Maternity Hospital at a gestational age of 39 weeks and 1 day. She brings these proceedings through her mother and next friend, Kathleen Quinn, with whom she resides at Fortanne, O’Callahans Mills, County Clare. The first named respondent has or had responsibility for the Limerick Maternity Hospital at the material time. The second named respondent is a consultant obstetrician and gynaecologist who had responsibility for the obstetric management of the plaintiff’s gestation and subsequent delivery. When Anne Marie was born she had severe brain damage attributable to a condition subsequently diagnosed as periventricular leukomalacia (PVL). The basis of her case against the defendants in the High Court was that she ought to have been delivered not later than week 35 of her gestation, in which case it was contended the plaintiff would have avoided all, or substantially all, of the brain damage which occurred.
The defendants ultimately did not dispute that there had been negligence in the management of the pregnancy and that the plaintiff should have been delivered earlier than she was. However, the defendants contended that the plaintiff’s brain damage was sustained as a result of an acute episode which occurred between 28-30 weeks of the pregnancy and that the outcome would not have been any different had she been delivered at any earlier time than she was.
The hearing before O’Sullivan J. was spread over a period of 17 days between the 13th May and 16th July, 2003, following which judgment was delivered on the 14th October, 2003. It had been agreed between parties that the trial should deal only with the issues of breach of duty, causation and life expectancy – the issue of damages (if any) being postponed until these issues were decided. In delivering judgment, O’Sullivan J. dismissed the plaintiff’s claim and on the 31st October, 2003, awarded costs in favour of the defendants.
The plaintiff’s mother is an insulin-dependant diabetic who was diagnosed as such in 1988 and her pregnancy is thus agreed to have been a ‘high risk’ pregnancy. She consulted her general practitioner regularly during the pregnancy and also attended at the first named defendant’s diabetic clinic in Limerick Regional Hospital. She was weighed regularly and her blood sugar levels noted. Some high blood sugar readings were recorded on the 7th September, 1989, along with some hypoglycaemic episodes. A change in insulin regime was put in place in September, and an incident of vaginal bleeding was noted on the 25th October. There was also a recorded weight loss of 2 kilos between 3rd October and 2nd November.
On the 7th November, 1989 (at 14 weeks gestation), the plaintiff’s mother attended the second named defendant for the first time. She had been referred by her general practitioner and saw the second named defendant on four subsequent occasions thereafter, those dates being the 2nd January, 1990 (22 weeks gestation), the 27th February, 1990 (29 ½ weeks gestation), the 10th April, 1990 (36 weeks gestation) and the 1st May, 1990 (39 weeks gestation).
On the 2nd March, 1999 (at 30 weeks gestation), her general practitioner noted a drop in weight and queried “IUGR” (Intra Uterine Growth Restriction). This possibility was not further explored. On the 27th April, 1990, the general practitioner noted that despite a gestation of 38 weeks and 1 day that the fundus equalled 34 weeks. This was the first time that a discrepancy was noted between gestation and fundal height.
The plaintiff’s mother made a further visit to the second named defendant on the 1st May, 1990 (at 39 weeks gestation), and he recorded a reduction in weight but did not note any discrepancy between the height of the fundus and gestation. No ultra-sound scans were at any time undertaken. On the 3rd May, 1990, the second named defendant suggested that the plaintiff’s mother be admitted to Limerick Maternity Hospital and she was admitted there on the 4th May, 1990, at a point when gestation was at 39 weeks and 1 day.
A foetal heart monitor (CTG) was attached the reading from which was flat, meaning there was no base line variability and no accelerations. Delivery by caesarean section was ordered and at delivery there was a finding of “grossly diminished liquor volume” (oligohydramnios), liquor being the fluid surrounding the foetus in the uterus. At birth, the plaintiff’s weight was 2.09 kilos with a head circumference of 30.5 cm. She was grossly and symmetrically growth retarded, her birth weight and head circumference being well below the third centile for the date of gestation.
She was a very ill child who had poor activity and a poor cry. At 1 minute the plaintiff’s Apgar score was 3 and was 6 at 5 minutes. She developed respiratory problems and had poor colour, with twitching and chronic activity. Within 12 hours of birth the plaintiff suffered epileptic-type seizures. It became evident that the plaintiff had suffered major brain damage and a diagnosis of PVL followed.
A CT scan of the plaintiff’s brain was performed on the 28th May, 1990, and a further CT scan was performed on the 7th June, 1990. Some 10 years later an MRI scan of the plaintiff’s brain was carried out on the 28th June, 2000.
While multiple grounds of appeal have been advanced on behalf of the plaintiff, her case can be fairly summarised in the following way. The plaintiff alleges that her difficulties evolved as part of a unitary pathological process, namely, placental insufficiency (most probably linked to maternal diabetes), which caused a chronic hypoxic ischaemia in utero. This led to a gradual deprivation of oxygen and vital nutrients from before the 28th week which continued up to birth at 39 weeks and 1 day. An important feature of the early stages of this process on the plaintiff’s case was the suggestion that a compensatory mechanism known as “brain sparing” would have operated. Under this process, the brain would have been preferentially favoured by shunting of the available blood and oxygen supply at the expense of other organs during the initial period of chronic placental insufficiency, but this process could not have continued beyond 35 weeks. Had there been proper scanning and other monitoring, the fact that there was IUGR. would have been detected at around 30 weeks and this in turn would, it was contended, have led to delivery between the 32nd and 35th week of gestation thereby avoiding the catastrophic and irreparable damage caused to the plaintiff’s brain thereafter and in the neo-natal period. The witnesses for the defendants, however, denied that the plaintiff’s PVL was caused by a lengthy process which was continuing up to the time of delivery and denied that it was the result of placental insufficiency. They contended that there was an acute, relatively brief insult at 28 weeks to 30 weeks which caused catastrophic brain damage, and that the growth retardation was either caused by the same insult or resulted from the brain damage which occurred at that time. The defendants ultimately accepted during the trial that there was a period of placental dysfunction during the 3 to 4 weeks prior to delivery, but denied that this was connected with the plaintiff’s brain damage. In making their case, the defendants relied in particular on the information subsequently yielded up by the MRI scan. The MRI scan was the subject of detailed investigation and evidence by Professor Olaf Flodmark, a distinguished consultant neuroradiologist from Stockholm who was retained on behalf of the defendants, whose evidence as to the timing of the injury at 28 to 30 weeks was to prove decisive in the decision ultimately arrived at by the trial judge.
Both Professor Flodmark and Dr. King, a consultant paediatric neurologist who was also called for the defendants, disputed that any significant injury occurred later on in the pregnancy, and more particularly in the last 4 weeks of gestation, or that significant injury was caused either on the day of delivery or in the neo-natal period. The plaintiff’s experts, who included two consultant obstetricians, namely, Dr. Peter Buchan and Mr. Roger Clements, consultant paediatric neurologist Professor Alan Hill, consultant neo-natal paediatrician Professor Peter Fleming and paediatrician Professor Alan Lucas were collectively of the view that there was an ongoing progressive process taking place as a result of placental insufficiency which, via the mechanism of hypoxic ischaemia, contributed to the plaintiff’s brain damage during the pregnancy and was combined with an acute hypoxic ischaemic event at the time of delivery with episodes of hypoglycaemia postnatally. The defendants admitted only during the closing submissions that they had been negligent in not delivering the plaintiff/appellant at an earlier time. In the course of the appeal before this Court, Mr. Murray McGrath, senior counsel for the defendants, accepted that this admission necessarily meant that the defendants had been negligent in the management of the pregnancy and had failed to carry out appropriate scanning or monitoring of the plaintiff’s gestation.
The critical issues therefore which the judgment of the learned trial judge addressed were:-
(a) The nature of the insult which caused the PVL
(b) The timing of that insult.
In resolving that conflict, it was clear that the trial judge had to deal with conflicting evidence from both sides with regard to a medical condition (i.e. PVL) which is multi-factorial, poorly understood and the subject-matter of widely diverging scientific and medical understanding, notably in term of its precipitating cause. Having taken considerable time for reflection, O’Sullivan J. held that the plaintiff had failed to establish, on the balance of probability, that she would have avoided her catastophic injuries had she been delivered by the 35th week of gestation and he accordingly dismissed the claim.
Arguments of the Parties on Appeal
Mr. McCullough, senior counsel for the plaintiff, contended that the trial judge in arriving at his decision had accepted the obstetric evidence led on behalf of the plaintiff, to which there was no countervailing evidence, which was to the effect that a unitary pathological process had taken place in the medical condition of the foetus, whereby placental insufficiency caused hypoxic ischaemia which went on progressively from 28 weeks to birth. Having so found and concluded, counsel argued that the trial judge logically should not have set that finding at naught by ultimately preferring, as he did, the radiological evidence adduced on behalf of the defendants to determine the nature and timing of the injury. Furthermore, counsel submitted, the weight of the evidence was such that preference ultimately had to be given to the obstetrical evidence for a number of reasons. Firstly, the child did not die in utero, as one would have expected if a major insult had taken place at 28 weeks. Secondly, the radiological evidence was accepted by the defendants’ experts to be consistent with the case made on behalf of the plaintiff, even though it may have been less likely.
Once that concession as to consistency had been made, Mr. McCullough argued, the radiological evidence was no longer a bar to a finding by the trial judge in favour of the plaintiff. Having found that there was placental insufficiency ab initio, the trial judge should have given more weight to the evidence of Professor Hill (who had had regard to the fact that there was placental insufficiency) than that given to the evidence of Professor Flodmark (who did not have particular regard to the evidence of placental insufficiency).
Mr. McCullough further argued that the defendants themselves had not accepted the case on placental insufficiency until the cross-examination of their last witness, Dr. King. Up to that point, the defendants had contended for a healthy placenta and had postulated the occurrence of a single acute episode taking place for no particular reason. This, Mr. McCullough argued, was inherently improbable and was a view which the court, acting reasonably, should not have arrived at.
Mr. McCullough further criticised the trial judge for attaching undue importance to the failure of the plaintiff’s advisers to call their own radiologist, Professor Anslow, but submitted to this Court that there was nothing in his report (which had been tendered to the court during the hearing) to justify any finding that the failure to call this witness was particularly significant.
Furthermore, while Professor Flodmark had relied heavily on the fact that the MRI scan showed no damage visible to the cortex or sub-cortical area of the brain ( a fact inconsistent with late onset damage), Mr. McCullough argued that the fact that the plaintiff had had epileptic seizures suggested otherwise, so that the MRI scan should not be necessarily regarded as capable of revealing all damage to the grey matter of the brain.
Mr. McCullough further submitted that the defendant’s case was inherently improbable, because it sought to account for the plaintiff’s medical history by contending that three separate and unrelated events had occurred being:-
(a) An initial insult at 28-30 weeks
(b) Placental insufficiently occurring some 3 or 4 weeks before birth, causing hypoxic ischaemia,
and
(c) A further hypoglaecemic episode occurring at time of birth.
Based on those contradictions and difficulties, Mr. McCullough suggested that the trial judge should have preferred the evidence of the plaintiff’s experts and invited this Court effectively to reverse the trial judge’s finding on causation and hold in favour of the plaintiff. Alternatively, Mr. McCullough submitted the case should be sent for retrial before another judge on the issue of causation. He urged the court not to remit the matter to the trial judge to resolve issues which, he suggested, the trial judge had failed to resolve in the course of his judgment.
Finally, he submitted that the failure on the part of the trial judge to resolve the difficult issues before him was not in accordance with the legal obligation to decide the case in favour of one party or the other and the trial was, for these various reasons, unsatisfactory and the outcome one which was not in accordance with the evidence and was a finding so unreasonable that this Court should intervene in the manner suggested.
On behalf of the respondents, Mr. McGrath contended that there was credible evidence before the trial judge such as to raise significant doubt about the correctness of the proposition advanced on behalf of the plaintiff as to causation in this case and, in particular, the timing of the injury. Furthermore, Mr. McGrath submitted that the trial judge had made a conscientious effort to resolve the issues in the case. Insofar as the trial judge may have failed to resolve those issues, Mr McGrath submitted that this Court, if disposed to intervene, should resolve the causation issue in favour of the defendants/appellants.
Notwithstanding the concession of negligence, Mr. McGrath argued that the onus of proof remained at all times on the plaintiff in respect of the issue of causation and there was no onus on the defendant to establish a particular version of causation. If the trial judge as a result of evidence adduced on behalf of the defendant was unable to decide the case on the balance of probabilities in the plaintiff’s favour he had then no option but to dismiss the claim. In any event, Mr. McGrath contended, it was clear from the judgment that the evidence called on behalf of the defendant went further and enabled the trial judge to effectively prefer the defendant’s case to that of the plaintiff.
Having regard to the expertise of Professor Flodmark, whose evidence was not contradicted by any neuroradiologist called on behalf of the plaintiff, the trial judge was entitled to attach great weight to that evidence and to act upon it. He had in addition further evidence available to him, notably evidence of the plaintiff’s reduced head size at birth. Evidence had been given at trial to suggest that growth of her head slowed markedly from about 28 weeks, meaning that brain damage had taken place at that time. Where brain damage occurs, the evidence had shown that the head ceases to grow, and it was noted in this case that at delivery the head size was appropriate to 31/32 weeks only.
The court in addition had the benefit of evidence which suggested that the condition of PVL typically occurs at 28 to 30 weeks and not after 35 weeks. There was further evidence that this condition tends not to be an ongoing or chronic process, but is more usually an acute episode. There was further evidence available from Professor Flodmark that this was a case of “Pure PVL” (where the condition exists without other complicating factors) thus rendering it very unlikely that there had been an ongoing injury beyond 35 weeks. Professor Flodmark did not accept that death of the foetus would have followed an acute injury at 28 – 30 weeks and further stated that he never saw imaging where PVL damage went on beyond 35 weeks.
Counsel argued that the evidence available from the MRI scan, described in evidence by Dr King as the “gold standard” from a diagnostic point of view, suggested clearly that the time of the plaintiff’s brain damage was at 28 weeks. Furthermore, the MRI scan of the cortical and sub-cortical areas of the brain did not show the kind of damage which would be apparent if a chronic ongoing process until birth had taken place.
In all these circumstances, Mr. McGrath argued, the trial judge had resolved an extremely difficult case in a careful and reasoned manner and had set out with great care the reasons why he favoured the evidence of the defendant’s witnesses over those called on behalf of the plaintiff. He submitted that there should be no interference with the findings and judgment arrived at by O’Sullivan J.
Legal Principles
It is important at the outset to identify some legal principles appropriate to the task of deciding the issue of causation in cases of this nature.
Firstly, it was conceded on behalf of the respondents, albeit only on the 17th day of the trial, that the defendants were negligent in not delivering Anne Marie early. In the course of submissions before this Court, Mr. McGrath has helpfully clarified that this concession may be taken as necessarily including an admission that the monitoring of this pregnancy was inadequate and that ultra-sound scans, which conceivably might have yielded information leading to an early delivery, were not in fact performed.
Nonetheless counsel on behalf of the respondents submitted that the onus of proof at all times remained on the plaintiff to establish that the admitted breach of duty actually caused the plaintiff’s injury. The respondent’s case quite simply was that all of the plaintiff’s brain damage was attributable to a severe insult to the brain which occurred, as a matter of probability, between 28 and 30 weeks of gestation and that no intervention by way of early delivery thereafter would have altered that situation. Counsel further contended that while the exact cause of the insult was not known, it resulted in the condition of periventricular leukomalacia (PVL) which Anne Marie was subsequently shown to have.
At the outset it may be said that this is not a case where any act of the respondents first triggered the particular medical condition from which the plaintiff suffers. The case is rather that they negligently failed to realise that there was a problem when indications that such was the case first became evident between 28-30 weeks and to thereafter intervene appropriately to ensure that Anne Marie was born at the earliest possible opportunity, and certainly not later than 35 weeks.
In the context of causation, however, I should immediately emphasise that it is not enough to show that the plaintiff’s condition got worse during the period from the start of the difficulties until delivery, it must further be shown that early intervention would have prevented the damage. There is no dispute in the present case that the only form of effective intervention lay in delivering the baby at the earliest possible opportunity.
Given that a difficulty for which the respondents were not responsible led to the start of the plaintiff’s difficulties, it is perhaps somewhat surprising that the case was presented to the trial judge on an “all-or-nothing” basis. No case was made along the lines that the delay in intervention meant that the plaintiff had “lost a chance” of a better outcome for which she was entitled to be compensated. Furthermore, any claim that the negligent delay “materially contributed” to the plaintiff’s condition, as distinct from bringing it about in its entirety, was expressly abandoned by the plaintiff’s advisers during the course of the trial.
On the face of it, therefore, the issue of causation fell to be dealt with on the basis that the claimant was required to discharge the burden of showing that the breach of duty of which she complains caused the damage and to do so by showing that but for the breach she would not have suffered the damage. This is known as the “but for” principle of causation which obtains in the generality of personal injury actions and is a principle long established in negligence actions at common law.
In the instant case, however, Mr. McCullough argued that the particular circumstances of this case called for a modified approach to proof of causation by reference to principle, authority, and policy. In particular he relied upon a recent decision of the House of Lords in Fairchild v. Glenhaven Funeral Services Ltd. and Others [2002] 3 All ER 305 to suggest that requirements of proof of causation could be relaxed in certain circumstances. He further relied on observations of Sopinka J. in Snell v Farrell, a decision of the Supreme Court in Canada [1990] 2 S.C.R. 311 to argue that causation could be ‘inferred’ in circumstances such as arose in the present case. These cases were, Mr. McCullough submitted, indicative of an evolving approach to issues of negligence and causation which may be said to have begun with the decision of the House of Lords in McGhee v. National Coal Board [1973] W.L.R. Vol.1(1). That case is undoubtedly a useful starting point in the consideration of this issue.
Mr. McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4 ½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The plaintiff contended that his dermatitis had been caused by his period of working in the brink kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. The trial court concluded the employers were at fault in failing to provide showers, but found against the plaintiff on the basis that the plaintiff had failed to show that the breach of duty caused or materially contributed to his injury. In allowing the appeal, the House of Lords adapted the orthodox test to meet the particular case, recognising that the plaintiff faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy. In the circumstances the House of Lords found that no distinction was to be drawn between materially increasing the risk of the plaintiff contracting the disease and making a material contribution to its occurrence.
Of the five speeches in the House of Lords, only Lord Wilberforce however advocated a reversal of the burden of proof, an issue touched upon in the course of the appeal before this Court also. Nonetheless, this decision was widely seen as ushering in a relaxation of the traditional “but for” requirement to establish causation. However, in Wilsher v. Essex Area Health Authority [1988] 2 W.L.R. 557, Lord Bridge interpreted McGhee as espousing no new principle. Instead, McGhee was explained as promoting “a robust and pragmatic” approach to the facts of a case to enable an inference of negligence to be drawn where medical or scientific expertise cannot arrive at a definitive conclusion. In giving his reasons, Lord Bridge stated at p.569:-
“The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders negligence had materially contributed to the pursuer’s injury. The decision, in my opinion is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
The underlying reasons for the decision in Wilsher emerge clearly from the dissenting judgment of Browne-Wilkinson V.-C. in the Court of Appeal [1987] Q.B. at p.779 which later found favour with Lord Bridge and in which the Vice-Chancellor stated:-
“To apply the principle in McGhee v National Coal Board [1973] W.L.R.1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust; the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz. brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents.
The position, to my mind is wholly different from that in McGhee where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. Failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
Wilsher suggests that it is less open to a court to relax the onus of proof in relation to causation where the condition brought about by negligence is multi-factorial or is capable of being trigged for a variety of reasons or by a variety of agents. Conversely, where only one reason or agency can be identified, a court may more readily make good any evidential shortfall to draw an appropriate conclusion, notably when scientific and medical science is incapable of providing the requisite information. Such an approach may also be more appropriate to cases where the negligence or breach of duty precedes the injurious event, particularly where the injury falls in shortly afterwards and is thus clearly proximate to it. A difficulty may obviously arise in cases where the injurious event occurs first and there is then negligence, whether by way of misdiagnosis or delay in providing appropriate treatment. In the latter situation, the injury or some of it will in many cases have already occurred to a greater or lesser degree, so that the negligence may perhaps better be characterised as giving rise to the “loss of a chance” or “loss of an opportunity” of avoiding most, or at least a significant part, of the ensuing damage. It must be said there is a dearth of Irish authority on the topic of “loss of a chance” which perhaps explains why the plaintiff’s advisers steered clear of it at trial.
Be that as it may, Mr. McCullough noted that many Canadian cases decided after McGhee (but before Wilsher) tended to follow McGhee by adopting either the reversal of onus or the inference interpretation. Which interpretation was adopted made no practical difference because even when the latter approach was applied, the creation of the risk by the defendant’s breach of duty was deemed to have established a prima facie case, thus shifting the onus to the defendant. (Powell v. Guttman [1978], 89 D.L.R. (3d) 180 (Man. C.A.) and Letnick v. Toronto (Municipality of Metropolitan), [1988] 2 F.C. 399 (C.A.), applied the reversal of proof theory.)
A useful analysis of different approaches to causation may be found in Snell v. Farrell [1990] Can L11 70 (S.C.C.) where Sopinka J. stated as follows (at p.10):-
“The question that this Court must decide is whether the traditional approach to causation is no longer satisfactory in that plaintiffs in malpractice cases are being deprived of compensation because they cannot prove causation where it in fact exists.
Causation is an expression of the relationship which must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation to the latter out of the pocket of the former. Is the requirement that the plaintiff prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury too onerous? Is some lesser relationship sufficient to justify compensation? I have examined the alternatives arising out of the McGhee case. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone.”
Sopinka J. went on to note that proposals in Britain to reverse the burden of proof in malpractice cases which gained momentum by virtue of the McGhee case were not adopted. In 1978, the Royal Commission on Civil Liability on Compensation for Personal Injury (Pearson Report, Vol.1) reported as follows at p.285:-
“Some witnesses suggested that, if the burden of proof were reversed, the patient’s difficulties in obtaining and presenting his evidence would be largely overcome. It was said that doctors were in a better position to prove absence of negligence than patients were to establish liability. At the Council of Europe colloquy, however, although it was agreed that the patient was at a disadvantage when he sought to establish a claim, serious doubts were expressed on the desirability of making a radical change in the burden of proof. We share these doubts. We think that there might well be a large increase in claims, and although many would be groundless, each one would have to be investigated and answered. The result would almost certainly be an increase in defensive medicine.”
Sopinka J. noted that the Wilsher decision in the House of Lords ensured that the common law did not undermine this recommendation. His view was that any dissatisfaction with the traditional approach to causation stemmed to a large extent from its too rigid application by the courts in many cases. He quoted with approval the observation made by Lord Salmon in Alphacell Ltd. v. Woodward [1972] 2 All E.R. 475 at p.490:-
“…it is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”
He ultimately concluded, and this is the passage upon which counsel relies, that where the relevant facts are peculiarly within the knowledge of one party (or, by inference in the present case, within their ability to procure knowledge of such facts) “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. This has been expressed in terms of shifting the burden of proof.”
Sopinka J. however disliked the idea of deciding that a transfer of the onus of proof was the approach to adopt and characterised as proper an approach which involves the weighing of evidence to draw an appropriate inference in circumstances where a defendant runs the risk of an adverse inference in the absence of evidence to the contrary. He continued (at p.12):-
“The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.”
Finally, Mr. McCullough relied upon the decision arrived at by the House of Lords in Fairchild v. Glenhaven Funeral Services [2002] 3 All ER 305.
In that case, an employee had been employed at different times and for differing periods by more than one employer. He developed a condition of mesothelioma as a result of the inhalation of asbestos dust at work. The question arose whether in the circumstances he was entitled to recover damages against either employer or both of them even though unable to prove on the balance of probabilities that his condition was the result of inhaling asbestos dust during his employment by one or other or both of his employers. The claims were dismissed in the Court of Appeal but were allowed by the House of Lords. The House decided that, in certain special circumstances, the court could depart from the usual “but for” test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendant’s breach of duty had materially contributed to causing the claimant’s disease by materially increasing the risk of the disease being contracted. In the circumstances of that case the House thought it would be just, and in accordance with common sense, to treat the conduct of both employers, in exposing the employee to a risk which he should not have been exposed, as making a material contribution to the employee contracting a condition against which it was the duty of both employers to protect. Any injustice that might be involved in imposing liability on a duty-breaking employer in such circumstances was heavily outweighed by the injustice of denying redress to the victim. Policy considerations therefore weighed in favour of allowing the employee to recover against both employers, and that conclusion followed even if one of them was not before the court.
In this course of his judgment (at p.357) Lord Hutton stated:-
“Therefore, whilst the decision taken by the house in McGhee’s case may have been based on an inference of fact, I consider that it is in the interest of justice that it should now be held as a matter of law that the approach taken by the house in McGhee’s case is one which should be followed by trial judges in cases such as the present one where the claimant can prove that the employer’s breach of duty materially increased the risk of him contracting a particular disease and the disease occurred but where in the state of existing medical knowledge he is unable to prove by medical evidence that the breach was a cause of the disease.”
However, I would be firmly of the view that this decision turns on its own unique facts and it was expressly confined by the House of Lords to a particular set of circumstances where it would be patently unjust not to allow the appeal in circumstances where the plaintiff’s condition must have been caused through the negligence of employer A or employer B, or both, but on application of the conventional “but for” test of causation it could not be held that the plaintiff had successfully made out a case against either. Those considerations do not arise in the present case. It is worth noting that in Ireland this difficulty of joint tortfeasors and uncertain causation has been addressed by s.11(3) of the Civil Liability Act, 1961, which provides that :-
“Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage”
Furthermore, the fact that the House of Lords took an exceptional course in Fairchild was expressly acknowledged to have been the case by Lord Hoffman in the course of his judgment in the recent case of Gregg (F.C.) v. Scott (House of Lords, unreported, 27 January, 2005) when he stated (at paras.84-85):-
“Academic writers have suggested that in cases of clinical negligence, the need to prove causation is too restrictive of liability. This argument has appealed to judges in some jurisdictions; in some, but not all, of the States of the United States and most recently in New South Wales and Ireland; Rufo v. Hosking (1 November 2004) (2004) NSWCA 391; Philip v. Ryan (17 December 2004) [2004] 1 I.E.S.C. 105. In the present case it is urged that Mr. Gregg has suffered a wrong and ought to have a remedy. Living for more than ten years is something of great value to him and he should be compensated for the possibility that the delay in diagnosis may have reduced his chances of doing so. In effect, the appellant submits that the exceptional rule in Fairchild should be generalised and damages awarded in all cases in which the defendant may have caused an injury and has increased the likelihood of the injury being suffered. In the present case, it is alleged that Dr. Scott may have caused a reduction in Mr. Gregg’s expectation of life and that he increased the likelihood that his life would be shortened by the disease.
It should first be noted that adopting such a rule would involve abandoning a good deal of authority. The rule which the House is asked to adopt is the very rule which it rejected in Wilsher’s case [1988] AC 1074. Yet Wilsher’s case was expressly approved by the House in Fairchild [2003] 1 AC 32. Hotson [1987] AC 750 too would have to be overruled. Furthermore, the House would be dismantling all the qualifications and restrictions with which it so recently hedged the Fairchild exception. There seem to me to be no new arguments or change of circumstances which could justify such a radical departure from precedent.”
It may be noted en passant that this decision of the House of Lords is also the most recent authority in support of the proposition that actionable claims for “loss of a chance” do not lie. A useful resumé of the relevant policy considerations suggesting why this is the preferred approach appear in the judgment of Baroness Hale of Richmond (at paras.212-226). Given that the decision of Peart J. in Philip v. Ryan was referred to in the judgment of Lord Hoffman, it is perhaps appropriate to comment that that judgment, containing as it does an excellent analysis of the facts on which that particular case turns, does not purport to address the underlying legal principles.
From the review of the cases undertaken herein, I am driven to conclude that Mr. McGrath’s submissions in relation to the onus of proof and causation generally are correct and that the “but for” approach to causation must be followed by this Court. Any approach which had the effect of reversing the onus of proof, or transferring the onus of proof to the defendant, would be one of such importance, even in the few exceptional cases where it might be appropriate, that it would require a full court – or perhaps even legislation – before a change of such magnitude to existing law could take place. Nor do special circumstances arise or exist in this case to bring it within the more relaxed requirements for establishing causation which were found to exist in McGhee v. National Coal Board and Fairchild v. Glenhaven Funeral Services.
This is not a case where there were multiple defendants or where a single agency was clearly established as the cause of the plaintiff’s condition. Indeed it was noted in the evidence at trial that PVL is a multi-factorial condition which is as yet not fully understood by scientific and medical experts. Indeed it appears in this case that a round-table discussion between experts from both sides took place in London some time before the trial, which proved of considerable assistance in sharpening the focus of the evidence given at the trial. Nor is this a case where there was any deliberate obfuscation by the defendants in meeting the case, or any concealment or destruction of documents or records which were of critical importance in determining the nature of the condition from which the plaintiff suffered and the point in time at which it occurred. Both sides to the case had to employ their best endeavours to try to ascertain what had happened in this complex and difficult case. Furthermore the defendants did call evidence from two experts, one of them, Professor Flodmark, being an expert of international stature on the topic of PVL and MRI imaging in relation thereto. That being so, the inferential consequences mentioned by Sopinka, J. in Snell v. Farrell which arise when a defendant fails to adduce evidence do not arise in this case.
Besides, as has already been noted, no argument was made in the course of the trial that the normal requirements of proof on the part of the plaintiff do not apply. That being so, it is quite clear that a new case to that effect can not now be made. In Ahmed v. The Medical Council and the Attorney General [2004] 1 ILRM 372 this Court, sitting as a court of five, unanimously upheld the principle, often referred to as “the rule” in Henderson v. Henderson [1843] 3 Hare 100, to the effect that parties to litigation must bring forward their whole case and each and every point which properly belongs to the subject of litigation in the course of trial and not seek to do so at a later time. Mr. Noonan, counsel for the respondents, usefully referred the court to a restatement of that principle to be found in an Australian decision, Gavalas v. Singh [2001] V.S.C.A. 23 (22 March 2001) where the court noted:-
“As a general rule it is unusual to allow an appellant or a respondent to raise on appeal points not taken at the trial. There are fundamental policy considerations that underlie that approach.”
In proceeding now to consider how the learned trial judge arrived at his decision, I think it is important to stress that this exercise will be conducted on the basis that, notwithstanding that the process of injury may have commenced between 28-30 weeks of gestation, the case is nonetheless one to be assessed having regard to the plaintiff’s contention that all, or nearly all, of the injury and damage which the plaintiff suffered occurred at a point in time later than the appropriate time for intervention, be that 35 weeks gestation, or even some earlier time.
Decision
The jurisdiction of the Supreme Court in an appeal of this nature is as outlined by McCarthy J. when delivering the judgment of this Court in Hay v. O’Grady [1992] 2 I.R. 210 where it was stated (at p.217):-
“(1) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(2) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.
(3) Inference is a factor drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in ‘Gairloch,’ The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R.1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p.339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.”
This may be characterised as a statement to the effect that primary facts are a matter for the trial court, which, once they are supported by evidence will not be interfered with on appeal and, secondly, the inferences to be drawn therefrom, sometimes referred to as secondary facts, are appropriately a matter which can be reviewed by this Court.
As to how a court of trial should approach the task of finding primary facts, Mr. McCullough pointed to the dicta of Finlay C.J. in Best v. Wellcome Foundation Ltd [1993] 3 I.R. 421 (at p.462):-
“The function which a court can and must perform in the trial of a case in order to achieve a just result is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and conflicting theories concerning a matter of this kind.”
At an earlier point of his judgment in Best, Finlay C.J. had stressed that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise. In the ordinary course, however, a trial judge will, and must, use his best endeavours to resolve conflicts of fact by deciding those issues in accordance with the legal requirement that he do so on the balance of probabilities. Exceptional cases however can and do arise, and this is clearly one such case, where it may not be possible to do so.
Having regard to the complete stand-off between the respective medical experts on both sides of this case, both as to causation and the timing of Anne Marie’s injury, I do not believe it was necessary for the trial judge ultimately to decide in favour of one proposition or the other. It was open to him to decide the case by holding, as he did, that the plaintiff had not discharged the burden of proof to establish, on the balance of probabilities, that the plaintiff’s injury had occurred in a manner or at a time contended for by the plaintiff’s experts. In short, while the obstetric evidence adduced on behalf of the plaintiff provided one credible explanation of events, the radiological evidence adduced on behalf of the defendants’ provided another, being one based upon scientific and objective criteria, and which the trial judge also found to be credible and which ultimately left him in a position where he was driven to the conclusion that the onus of proof had thus not been discharged.
Support for the proposition that the court of trial is not under an obligation in all cases to positively find in favour of one version over another is to be found in Rhesa Shipping Co. S.A. v. Edmunds and another [1985] 2 All ER 712.
The following passage from the speech of Lord Brandon in that case (at p.718) is particularly helpful in addressing the duty imposed by law to the process of fact finding which a judge of first instance has to perform at the conclusion of a case where alternative scenarios as to causation exist:-
“… The judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. …the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.”
A trial judge must not, of course abdicate his duty to endeavour to resolve issues, but even the most conscientious effort may still leave a judge in the position in which O’Sullivan J. found himself at the end of this case. If credible evidence existed which left him in such a quandary he effectively had no option but to decide the case as he did. In my view there was such evidence.
Firstly, there was ample evidence to support the learned trial judge’s finding that Professor Flodmark was better qualified than Professor Hill, the plaintiff’s obstetrician, to perform the specific task of identifying and interpreting the information contained on the MRI scan and thus to decide if a major, acute brain injury occurred at 28-30 weeks. Indeed Professor Hill in the course of his evidence acknowledged that he did not have the level of experience possessed by a neuroradiologist when interpreting MRI scans and would defer to the opinion of a paediatric neuroradiologist who had experience in reading paediatric images. Professor Hill further accepted that Professor Flodmark was a paediatric neuroradiologist of the highest standing. Of course, he argued that he, unlike Professor Flodmark, could bring his clinical experience of treating patients to bear on issues relating to diagnosis, a factor which counsel suggested might be seen as compensating for any supposed disadvantage on Professor Hill’s part. However, Professor Flodmark’s evidence was to the effect that a neuroradiologist is more objective in reviewing the images to be seen on an MRI scan, a diagnostic tool which was referred to by Dr. King as the “gold standard” for diagnosis, than a clinician and that he was therefore in the best position to furnish an independent opinion not only on what the images show but also on the interpretation of those findings.
In dealing with Professor Flodmark’s opinion, the learned trial judge not only set out the reasons given by Professor Flodmark for his opinion that the insult occurred early in the appropriate time frame for PVL, but also expressed a clear preference for Professor Flodmark as the best of the expert witnesses in stating (at p.37):- “Professor Flodmark was clearly the most qualified of all the witnesses in the case to give evidence as to what precisely the radiology depicted.”
He also gave very clear reason for preferring Professor Flodmark’s evidence to that of Professor Hill. At p.44 he stated:-
“Insofar as there is a difference of opinion between Professor Hill and Professor Flodmark I prefer the latter’s opinion for three reasons, namely, the latter is the better qualified to perform the specific task of identifying precisely what information is or is not contained in images; secondly, I cannot turn a blind eye to the fact that the plaintiff procured a report from a neuroradiologist, Dr. Anslow, which was unfavourable to the case being advanced and then decided not to call him; and, thirdly, it did seem to me that Professor Hills opinion moved quite radically – radically, that is, in the narrow context of the precise issue of timing which is crucial in this case – from a first position where his view was that the injury occurred prior to the 35th week of gestation to a third position where it occurred after it. Whilst these opinions were clearly genuinely held they are – in the very specific context just refereed to – less reliable in my view than the opinion of Dr. Flodmark. I therefore see the case as one in which there is a significant difficulty for the plaintiff arising out of the radiology. There are other less serious difficulties such as the internal tensions between the evidence of Professor Fleming and Professor Hill as to when the plaintiff’s head growth as a foetus began to fall away from the norm.”
Mr. McCullough has criticised this passage in the decision, particularly because of the importance given by O’Sullivan J. to the failure of the plaintiff to call Dr. Anslow, the plaintiff’s Neuroradiologist. These criticisms seem to me to have little merit. Strictly speaking, there may have been reasons other than his unhelpful report to explain why Dr. Anslow was not called, but the fact nonetheless remains that there was no countervailing evidence from a neuroradiologist to contradict Professor Flodmark’s opinion in any way, and it was thus open to the trial judge quite properly to attach particular weight to that expert’s views in those particular circumstances.
Support for that approach may be found in the following passage from the judgment of the House of Lords in R v. IRC, Ex parte T.C. Coombes & Co. (1991) 2 A.C. 283 at p.300:-
“In our legal system generally, the silence of one party in the face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances a prima facie case may become a strong or even an overwhelming case.”
There are other criticisms made about Dr. King’s evidence, largely to the effect that she changed her position and postulated a highly unlikely scenario of three unrelated insults as having caused the plaintiff’s injury. However, those criticisms all drop away if one accepts, as I do, that Dr. King was handicapped by the fact that the results of the MRI scan were not known to her at the time of her first report and also because the hospital records did not indicate any placental abnormality. Indeed it was very much a case where the experts on both sides had to revise and adapt their opinions in the run-up to the trial and during the course of the hearing itself.
The fact remains at the end of the day that the information from the MRI scan and the fact that the plaintiff had reduced head growth at birth were critical elements in the evidence which in my view justified the learned trial judge in holding that an acute early insult had occurred in this case.
In this regard, Professor Flodmark told the trial court that the MRI scan revealed a marked reduction in the amount of white matter in Anne Marie’s brain. That which remains is abnormal and shows signs of gliosis (scarring). In this particular case, there is significant loss of white matter in both the anterior, mid and posterior portion of the brain. Two small white dots are also visible in the central part of the brain called the thalamus. These are changes associated with PVL and, in particular, with more severe forms of PVL. The corpus callosum, which provides the connection between the right and left cerebral hemisphere of the brain is usually four or five times as big as it is in the plaintiff’s case. This is another feature of PVL. However, there is no evidence of any damage in the sub cortical structures, nor is there evidence of any injury to the cortex, both of which look quite normal. These findings indicate that the present case is an example of “pure PVL”. Professor Flodmark also stated that there was no evidence of any damage in the basal ganglia of the type caused by profound hypoxic ischaemia in a full term baby. In Professor Flodmark’s opinion there were no complicating features and no evidence of any additional injury except to the white matter. If any brain damage had been caused by hypoglycaemia, he would have expected to find cortical damage. There was no evidence of such damage either due to hypoxic ischemic injury or hypoglycaemia.
Professor Flodmark further gave evidence that the causes and mechanisms behind brain lesions called PVL are not fully understood. It usually arises where there is a drop of the blood supply to the brain of the foetus.
Professor Flodmark further gave evidence that PVL does not occur before 24/25 weeks and is extremely rare after 34 weeks, if indeed it ever occurs after that time. Cases of pure PVL start to occur and appear around 28 weeks. He had never seen a case where he had been convinced that PVL developed after 34/35 weeks. Even where the injury had occurred at 28/30 weeks, babies had survived in utero despite sometimes having quite extensive damage to the brain.
Asked to address the question of the timing of Anne Marie’s injury, Professor Flodmark stated that the evidence of significant damage to the anterior portion of the brain supported his opinion that the damage in this case most likely occurred between 28 and 30 gestational weeks. He also stated that this finding was supported by the CT scans, and more particularly the first scan which showed the ventricles in the plaintiff’s brain to be “generous” in size. One could also see evidence on the CT scan of some sparseness in the amount of white matter in the periventricular region. In his opinion, it would have made no difference if there had been a delivery at 35 weeks, rather than 39 weeks.
The trial judge accepted, as he was entitled to do, the evidence of Professor Flodmark on these critical matters including, in particular, the evidence in relation to the question of the timing of the injury and the extent of that injury when it first occurred. Thus the learned trial judge had ample evidence to support the view he expressed at p. 46 of his judgment:-
“In my view the better evidence on this aspect of the case shows that there was a growth retardation process probably due to placental insufficiency which commenced quite possibly some weeks before week 28 of the gestation. If that retardation process were the cause of Anne Marie’s injuries, however, and in particular if the irreversible damage to the function of her brain was caused towards the end of the growth retardation period and specifically after the 35th week of gestation one would have expected normally to find damage to the cortex and sub cortex on the M.R.I. scan but this damage does not appear. This is explained by Professors Hill and Lucas who say that the damage to the white matter is so widespread that it may be obliterating the appearance of the cortical and sub cortical damage which they acknowledge must exist in order to support their explanation of the injuries. This is a somewhat two-pronged aspect of the evidence, however, because the appearance of widespread damage in PVL cases tends to establish earlier onset (i.e. within the typical time window of 24/28 to 34/35 weeks) rather than later. It is especially so where the damage involves the anterior portion of the brain which is the case with the plaintiff’s M.R.I.”
This passage is, yet again, indicative of the thoroughness which the learned trial judge brought to his analysis of the evidence in this case. It was an approach he adopted in relation to each of the expert witnesses. He was perfectly entitled, in my view, to conclude, as he did, that the evidence led on behalf of the defendant was such as to bring about a situation where the plaintiff had not tilted the scales decisively in favour of the case on causation contended for by the plaintiff’s experts. The trial judge concluded:-
“I am left, therefore, with two mutually inconsistent bodies of evidence neither of which wholly and satisfactorily resolves the issues in the case. It is not for me, following Finlay C.J. in the authority cited above, to set myself up as a determining authority in regarding these specialist issues, nor do I attempt to do so. I am unable in this case, however, by the application of common sense and a careful understanding of the logic and likelihood of events, to reach a conclusion that the evidence adduced by the plaintiff establishes her case on the balance of probabilities. I am unable to conclude, that is, that on the balance of probabilities that had the plaintiff been delivered by the 35th week of gestation she would have been spared all or a significant part of her injuries. In that event I must dismiss her claim.”
This is a truly tragic case where this Court would wish, as did the trial judge, to acknowledge the profound pain and suffering which the plaintiff’s injuries have brought and will bring to the plaintiff herself and to her parents, and to acknowledge also the inspiring fortitude and love shown to Anne Marie by her parents on every single day since her birth.
However, for the reasons already indicated, I would dismiss this appeal.
Hayes v Minister for Finance
[2007] I.E.S.C. 8
JUDGMENT of Mr. Justice Kearns delivered the 23rd day of February, 2007
The plaintiff is a young woman who suffered multiple severe personal injuries in a road traffic accident which occurred on the 6th day of August, 1994 at or near Kilfeakle in the County of Tipperary. The accident occurred shortly before 9 p.m. when road and weather conditions were perfect. On that occasion the plaintiff was a pillion passenger on a 500 cc motorcycle driven by her then boyfriend Ian Lynch when at a bend in the road the motorcycle crossed a continuous white line on to its incorrect side. There was at that time a motor car driven by Mr. James Kearns which was coming in the opposite direction. Mr. Kearns observed that the motorcycle was approaching at speed and was out on the white line. He slowed and pulled into the left at the entrance to a farm house and was all but stopped when the motorcycle hit the front of his car. This was a forceful impact and both the motor cycle driver and pillion passenger were thrown some considerable distance beyond the car. It is quite clear that the driving of Mr. Kearns in no way caused or contributed to either the accident or injuries sustained by either the driver of the motorcycle or the plaintiff pillion passenger.
No claim of any sort was brought against Mr. Kearns, but the defendant/appellant was sued because it is alleged that the motorbike driven by Ian Lynch was at the time being chased at high speed by a garda vehicle “which caused the motorcyclist to go out of control and to panic as a result of being chased, being followed and being pursued” so that it is alleged that the accident complained of was caused or contributed to by the negligence and breach of statutory duty of the defendant, his servants or agents.
The matter came on for hearing in the High Court (Finlay Geoghegan, J.) sitting in Limerick, and at the conclusion of the hearing the learned trial judge in an ex tempore judgment concluded that the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle.
Before considering the judgment of the learned trial judge in more detail, it is necessary to set out the background circumstances which culminated in the accident at Kilfeakle.
On the evening in question, two members of the Thurles Garda Station, Garda Anne Meehan and Sergeant (then Garda) Michael Dempsey, had set up a radar speed check on the Urlingford-Cashel road. They were sitting in an Opel Vectra standard issue patrol car about a mile and a half outside Urlingford and facing towards Urlingford. The vehicle was in plain view of traffic coming from Urlingford once that traffic crested a hill. Garda Meehan was sitting behind the wheel of the patrol car and Sergeant Dempsey had the radar gun in his hand. They first heard and then saw a motorbike approaching at speed from Urlingford. Garda Dempsey noted the speed of the motorbike on the radar gun to be 80 miles per hour. The motorcycle did not stop at the speed check and in fact increased his speed. Garda Meehan turned the patrol car and followed the motorbike. While this was happening, Sergeant Dempsey radioed back to the communications control centre in Thurles seeking assistance and stating that the bike had failed to stop. They were informed that a garda presence would come to Horse and Jockey which was some six or seven miles down the road. Sergeant Dempsey also radioed ahead to Cashel for the purpose of setting up a road-block or check-point there. In evidence Garda Meehan stated it took them some time to get the bike back into view again because they had started from a stationary position. The motorcycle had anything up to half a mile of a start on the garda vehicle. The blue flashing light was operating on the garda vehicle, but the siren was inoperative at the time. While pursuing the bike, the garda vehicle at no stage caught up with it. In evidence, Garda Meehan stated she had no idea who was on the bike, beyond noting there were two people who had helmets and black leather clothing. They had received no information to suggest that those on the motorcycle had been involved in any criminal conduct, though Garda Meehan stated in evidence that her “gut instinct” was that some serious crime might have taken place and that it was highly unusual for a speeding vehicle not to stop at a speed trap.
No garda presence came to Horse and Jockey, but a garda road-block was set up on the Dublin side of Cashel. However, Garda Meehan stated that the motorcycle swerved to the right of the garda patrol car which constituted the road-block, driving completely on the incorrect side of the roadway for that purpose, then swerved back onto its correct side of the main roadway through Cashel. As it passed the road-block the pillion passenger was observed to throw both hands in the air, suggesting to the pursuing gardaí that the pillion passenger wanted at that point to get off the bike.
The garda vehicle followed in the same manner and pursued the motorcycle through the town of Cashel, though it never got close enough to permit the gardaí to identify the registration number of the bike. At the end of the town the motorcycle made a right turn and then a left turn onto the Tipperary/Limerick road. Mr Lynch and the plaintiff had earlier travelled on the bike from Limerick to Kilkenny and always intended to take this route when returning to Limerick. Once the bike went out on to the Tipperary road Garda Dempsey radioed ahead for a check-point to be set up at the next town which was Tipperary.
Shortly after leaving Cashel, the gardaí lost sight of the motorbike because their car came in behind an articulated truck and they were unable to overtake the truck for quite some distance. They eventually succeeded in overtaking it and, coming out of Golden and from an elevated position, they caught sight of the tail light of the bike going around a corner at a time when the bike was about one mile ahead of them. Not long after that, they came around a left hand bend and observed that the motorcycle had crashed into the front of a vehicle travelling from the opposite direction.
It seems clear from the evidence that the road deteriorated significantly once the vehicles left Cashel. The vehicles were no longer on a major road, but rather on a minor road. The only evidence as to the speed of the garda vehicle on the Tipperary side of Cashel was that given by Sergeant Dempsey, who stated that the maximum speed of the garda vehicle would have been 50 miles per hour. He stated that the road was twisty and windy and was not a road upon which one could travel safely at speed. The gardaí gave evidence that they were content to tail the vehicle at this stage as they knew a road block would await the motor cycle at Tipperary.
Having heard the various witnesses, the learned trial judge made the following findings of fact:-
1) “That the motorcycle passed the initial speed trap at 80 miles per hour
2) That both gardaí were then sitting inside the car and that no signal was given to the bike to stop
3) That the gardaí had not received any information on the radio of any crime committed in the area
4) That having turned to commence the pursuit of the motorcycle, the garda members realised very quickly that the bike was increasing speed and attempting to drive away from them.”
The learned trial judged also separately found the following facts:-
1) “The gardaí followed the bike for the purpose of apprehending the driver of the bike
2) That it very quickly became clear to the gardaí that the bike was not going to stop and was increasing speed
3) As the bike increased speed, the garda car increased speed and continued in pursuit of the bike and drove at speeds of at least 100 miles per hour on the Urlingford – Cashel stretch of the road
4) That the gardaí started approximately one mile behind the bike and got to within 50 and 200 yards of the bike when coming into Cashel
5) That the garda car pursued the bike through Cashel by driving as the bike had done on the hard shoulder on the far side of the oncoming lane, circling a garda patrol car which was stopped on the oncoming lane and returning to its correct side of the road as they went down the town of Cashel
6) That the garda car must have been within approximately 150 yards of the bike as the bike turned at the top of Cashel, first right and then immediately left onto the Tipperary road. The undisputed evidence of Garda McDonnell, the garda from Cashel, is that one needed to be within this distance to have visibility of a bike going on to the Tipperary road.
7) That the garda car pursued the bike in visible proximity for approximately one mile out of Cashel on the Tipperary road towards Golden.
8) That the garda car was continuing to pursue the bike after Cashel but was held up by traffic between Cashel and Golden.
9) That the garda car was sighted by Mr Lynch as he left Cashel, and he was aware that the garda car was pursuing him on the road out of Cashel.
10) That the garda car was visible to the Plaintiff as a pillion passenger at one further point on the road after Golden.
11) That throughout the chase or pursuit, the garda car had its blue light flashing and headlights on.
12) That the garda car arrived one to one-and-a-half minutes after the accident occurred.”
These primary findings of fact are not challenged by the appellant in this appeal. The appellant’s case is that there was no breach of any duty of care by the appellant towards the plaintiff and that incorrect inferences were drawn from the primary findings of fact by the learned trial judge.
Having heard the evidence in the case the trial judge decided that the issues she had to resolve were:-
“(1) Was the chase or pursuit being given by the Garda to Mr Lynch’s bike the cause of the speed at which he was travelling at the time of the accident?
(2) If so, were the Garda in breach of a duty of care which they owed to the Plaintiff in undertaking or pursuing this chase or pursuit?”
In relation to the first of these questions, the learned trial judge concluded that “a cause of the speed at which the bike was being driven at the time of the accident was the pursuit of the bike by the garda car.”
In relation to the second question, the learned trial judge concluded as follows:-
“On the facts of this case, the offence of which the gardaí were aware, even on their account of what happened as the bike passed them, was a traffic offence. There is no evidence of any more serious offence. On those facts I have concluded that the gardaí in commencing a pursuit of a bike which was already passing them on the main Dublin-Cork road already travelling at 80 miles an hour and continuing that pursuit which included the gardaí driving on the Dublin-Cork road at a speed of 100 miles an hour was in breach of duty of care which they owed, inter alia, to the plaintiff as the pillion passenger. I further conclude that the driving of the car in the manner which it is acknowledged as was done through the town of Cashel and the continued pursuit out the narrow Tipperary road was also in breach of the duty of care owed. For these reasons I find the defendant liable to the plaintiff in these proceedings.”
Relevant legal considerations
The State no longer enjoys immunity from tortious liability in this jurisdiction. That historic anomaly was removed in the case of the negligent driving of a mechanically propelled vehicle belonging to the State by Section 170 of the Road Traffic Act, 1933 which was replaced by Section 116 of the Road Traffic Act, 1961 and later by Section 59 of the Civil Liability Act, 1961 which provides:-
“ 1) Where a wrong is committed by the use of a mechanically propelled vehicle belonging to the State, the Minister for Finance shall be liable to an action for damages in respect of damage resulting from the wrong in like manner as if the Minister for Finance were the owner of the vehicle, and the person using the vehicle shall, for the purposes of such liability, be deemed to be the servant of the Minister for Finance in so far as such person was acting in the course of his duty or employment.”
There was no dispute between the parties at trial or on the hearing of this appeal as to the existence of a duty of care on the part of the driver of a police vehicle to other road users, including a driver who may have been guilty of some sort of criminal behaviour and in respect of whom a pursuit is undertaken. In this regard counsel for the plaintiff in opening the case at trial suggested that the relevant duty of care was that outlined in the decision of the Court of Appeal in Marshall v. Osmond and another [1983] 1 QB 1034 in which Sir John Donaldson M.R described the duty owed by a police officer in pursuit of a suspect in the following terms at p. 1038:-
“I think that the duty owed by a police officer to the suspect is, as Mr. Spokes, on behalf of the plaintiff, has contended, the same duty as that owed to anyone else, namely to exercise such care and skill as is reasonable in all the circumstances. The vital words in that proposition of law are ‘in all the circumstances’, and of course one of the circumstances was that the plaintiff bore all the appearance of having been somebody engaged in a criminal activity for which there was a power of arrest.”
Counsel also made references to various provisions of the Garda Síochána Code which, while not imposing any strict legal liability on the gardaí, were relied upon as being indicative of the nature of the duty of care. The provisions contained at par 35.39 (2) and (3) of the Code are particularly relevant to the facts of this case and provide:-
“Chasing escaping vehicles:
a) The responsibility for undertaking a chase rests with the driver of the garda vehicle, unless the order is given by a radio message. The driver is also responsible for deciding whether the pursued car is to be tailed or an attempt made to stop it. The whole responsibility is with the driver alone and he is not to be interfered with in any way or urged to higher speed by anyone. A chase at speed is only justified where it is really important to arrest the occupants of the pursued car. A minor crime, traffic offence, or even the sighting of a stolen car, does not justify a chase at speed.
Stopping escaping vehicles:
a) Stopping should only be adopted as a last resort. Usually it is better to tail the suspect in the hope that he will be held up by traffic, run out of petrol or make a mistake, which will enable an arrest to be made. It is preferable to let a criminal escape rather than risk death or injury to innocent people.
b) Stopping obviously involves risk to both vehicles and their occupants. If real need arises this risk must be accepted, but it is essential that the right place and moment should be chosen so that no one else is endangered. Here again, it is a question of the skill and discretion of the driver.
c) Where a member of the Garda Síochána is pursuing a vehicle and he suspects with reasonable cause that an offence under Section 8 of the Criminal Law Act, 1976 or any offence under the said Act has been, or is being or is about to be committed, he may require the driver to stop, and may use reasonable force in order to compel him to comply with such requirement, and such force may include the placing of a barrier or other device in the path of the vehicle.
This paragraph (c) does not affect the generality of the sub-section and is not to be construed as giving a blanket permission to deal similarly with all offences or crimes.”
In the course of the appeal before this Court, further reference was made in course of submissions to a number of Canadian decisions which dealt with police pursuits, notably Doern v. Phillips Estate (1994) 2 B.C.L.R. (3d) 349 and Noel v. Botkin and others (1995) 9 B.C.L.R. (3d) 21 British Columbia Supreme Court.
In the first of these cases, the Supreme Court of British Columbia reviewed a number of Canadian decisions before concluding (at p 17):-
“It is apparent from a review of these authorities that Canadian courts have been reluctant to find negligence on the part of police officers in the lawful discharge of their duties. Nevertheless, the authorities also demonstrate that each case must be examined according to the circumstances of the case”.
On the following page, the standard or duty of care was elaborated in the following manner:-
“Based on the authorities provided, there is little doubt that the standard of care to which a police officer will be held is that of a reasonable police officer, acting reasonably and within the statutory powers imposed upon him or her, according to the circumstances of the case. In this case, it is necessary to consider whether the pursuit policy, which constituted a self- imposed standard of care, was followed. The police pursuit policy was obviously carefully and thoughtfully crafted. It was designed to assist officers and in the conduct of the activity that put them at more risk of harm than any of their other duties. Although the policy does not, in itself, constitute the standard of care, compliance with the policy, in my view, is a very important factor to consider in determining whether the standard of care has been met.”
In Noel v. Botkin, the same court summarised the question to be asked in assessing the conduct of police officers during pursuit is to enquire:-
“[W]hether they, viewed objectively from the view point of a reasonable police officer, acted reasonably and within the statutory powers conferred upon them. In considering that question, the Court must take into account that officers will be expected to perform the duties imposed on them by statute and to comply with policies adopted by the force to which they belong. A failure to comply with policy will not necessarily constitute negligence, nor will an error in judgment. Officers are exempted from compliance with certain traffic rules, provided they meet the requirements of Section 118 of the Motor Vehicle Act. There must be a recognition that officers are required to exercise judgment in balancing the competing interests of arresting wrongdoers and protecting citizens.”
Reliance was also placed by counsel on behalf of the defendant during the course of the appeal on a decision of the Scottish Court of Session in Gilfillan v. Barbour (2004) SCLR 92, in which a careful distinction was drawn between the duty of care owed by a police officer and the standard of care which that duty imposes. As Lord Reed stated in his judgment (at p 12):-
“The police officer, like any other driver, owes a duty of care to other road users: that much is indisputable. The real question, however, is not as to the existence of a duty of care, but as to the standard of care which that duty imposes: something which one might expect to depend on the circumstances. McNair J. appears to have considered that the standard of care required of the police officer was the same as the standard required of any other driver”
In deeming such reasoning to be questionable, Lord Reed stated:-
“If the ordinary driver breaks the speed limit, that is in itself a material factor in determining whether he has been negligent. In the case of a police officer, on the other hand, in circumstances in which he is exempted from obeying the speed limit, no inference of negligence can be drawn from his driving at a speed in excess of the speed limit. The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be.”
He continued as follows at page 14:-
“It also appears to me to be important, in circumstances such as those of the present case, to bear in mind that the responsibilities of a police officer on mobile patrol can involve making difficult judgments: for example, as to the urgency of responding to a call and the appropriate speed for him to adopt in doing so, bearing in mind that he has been trained in driving skills to a higher level than the ordinary driver. Such judgments may have to be made in circumstances where the potential consequences of excessive delay, or of excessive haste, may be equally grave; and where there may be little time for reflection upon the choice to be made. It is therefore important, when such a driver is alleged to have been negligent, for the court to be satisfied that his conduct went beyond a mere error of judgment within the scope of the proper performance of his duties, and amounted to conduct which can be regarded as negligent. In determining that question, the court has to consider all the circumstances, including the nature and degree of any emergency involved, in order to decide whether, in driving as he did, the driver acted reasonably or not.”
In this context, counsel for the defendant drew the attention of the court to the Road Traffic (General and Ordinary Speed Limits) Regulations, 1994 (S.I. Number 194 of 1992) and the Road Traffic (Special Speed Limits) Regulations, 1994 (S.I. Number 223 of 1994) whereby vehicles used by the Garda Síochána in the performance of their duties were exempted from the application of the regulations.
As already indicated there was no real dispute between the parties but that the legal principles elaborated above set out in fair detail the relevant duty and standard of care. The essence of the dispute, however, was whether, in the particular circumstances of this case, there was a breach of such duty, and if so, was it causative of the plaintiff’s injuries.
Submissions
In the course of the appeal, Mr. Brian R. Murray S.C., counsel for the defendant, argued that the gardaí had a duty to uphold the law and to deal with infringements, be they speeding offences or other more serious transgressions. He submitted that in the instant case, the gardaí had at all times behaved appropriately. They were perfectly justified in commencing the pursuit of a motor cycle which had passed them at 80 miles per hour and which accelerated away from the speed trap at Urlingford. There were objectively reasonable grounds for suspecting, either then, and most certainly at a later stage when the motorcycle passed the garda road-block in Cashel, that some serious offence had been committed. The garda members had radioed ahead to set up appropriate road-blocks. They had not driven at or sufficiently close to the motorcycle to cause the accident complained of. They had never even come sufficiently close to the bike in the course of the pursuit to identify its registration number, even when closing to within 150 yards of the bike when going through Cashel. He further argued that the nature of the pursuit after Cashel was quite different from that which had preceded it. At no stage was there any evidence that the garda vehicle had then travelled in excess of 50 miles per hour. Furthermore, Mr. Lynch, while he believed the garda car was still in pursuit, never saw it again from the time he left Cashel until the accident occurred some 9.6 miles beyond Cashel. The garda vehicle was well behind at that stage and that was evident from the fact that it took one and a half minutes for the garda vehicle to arrive on the scene of the accident. He submitted that this section of the pursuit was quite different because the gardaí, having set up a road-block at Tipperary, were content to remain behind the motorcycle and had no intention of doing anything which would cause danger to either the driver or the pillion passenger, nor did they do so.
Alternatively, if the gardaí were to be found negligent in these circumstances, Mr Murray submitted that the driving of Mr. Lynch at the time of the accident constituted a novus actus interveniens of such a degree as to absolve the defendant from all blame. He cited Conole v. Redbank Oyster Company limited and another [1976] I.R. 191 as authority for the proposition that one must distinguish between negligence and causative negligence. The only causative negligence in this case was the driving of Mr Lynch: this was the proximate and sole reason for the accident in the particular circumstances of this case.
He further pointed out that Mr. McMahon S.C., counsel for the plaintiff, had agreed in the course of his submissions, that once the garda vehicle got caught up behind the juggernaut shortly after leaving Cashel, the distance which then built up between the motorcyclist and the garda vehicle provided an opportunity in which the motorcyclist, had he so wished, could have stopped and allowed the pillion passenger to dismount from the motorcycle.
Further and alternatively, Mr. Murray submitted that nothing the garda patrol car had done, or failed to do, had, as a matter of fact, been causative of the accident. There was nothing in the behaviour of the garda vehicle at any stage which could or should have caused the driver of the motorcycle to behave as he did behave at the time of the accident itself. The garda vehicle must have been at least a mile away and out of sight when the collision occurred between Mr. Lynch’s motorcycle and the vehicle driven by Mr. Kearns.
For the respondent Mr McMahon submitted that the gardaí, once they had set up the roadblocks, should have desisted from any attempt to maintain a pursuit which had as its goal the apprehension of the motor cyclist. They had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. It was foreseeable to the gardaí that the motor cyclist would continue to speed after he left Cashel because it was clear the garda vehicle was continuing to pursue him on the road to Tipperary.
Decision
The resolution of this matter has been somewhat simplified by the concession on behalf of the appellant that, in the particular circumstances of this case, the occupants of the garda vehicle did owe a duty of care both to the driver of the motorcycle and to the plaintiff.
That being so, it is not necessary to carry out the kind of detailed analysis in relation to the existence or otherwise of a duty of care which was conducted by Fennelly J in Breslin v. Corcoran and the Motor Insurers’ Bureau of Ireland [2003] 2 IR 203, though some consideration of the policy aspects of finding in favour of the existence of a duty have a relevance in this case when it comes to the question of causation.
In Breslin the first named defendant had left his vehicle unlocked with the keys in the ignition. An unknown person stole the car and, as a result of his negligent driving, collided with the plaintiff and caused him injury. This Court held in Breslin that, in determining whether the owner of the vehicle owed any duty to the person ultimately injured, that it was natural to have regard to considerations of fairness, justice and reasonableness, in addition to the elements of foreseeability and proximity and the judge of fact had to consider whether it was fair and just to impose liability and to have regard to all the relevant circumstances. The Court further held that while it was reasonably foreseeable that an unattended motor car would be stolen, it was not reasonably foreseeable that it would then be driven negligently. The Court thus followed its own decision in Glencar Explorations p.l.c. v Mayo Co. Co. (No.2) [2002] 1 IR 84 in which Keane CJ had stated at p.139:-
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff…”
In my opinion any view of the standard of care – as distinct from the duty of care – must turn on the circumstances of the individual case. In this case that demands a recognition that the gardaí have wide ranging powers under the Road Traffic Acts in relation to the preservation of law and order and, in particular, safety on the roads. Furthermore, public policy requires that the functions of the gardaí in this regard are discretionary powers rather than duties. Thus Part IX of the Road Traffic Act, 1961, as amended, includes the power of arrest without warrant, the right to demand information, the power to stop a vehicle, the power to dispose of a vehicle temporarily, the power to detain a vehicle, the power of entry and detention of persons. Furthermore, the gardaí also have common law powers which enable them to require a person to stop, even where there is no evidence or no reasonable suspicion of a crime having been committed.
In the course of his judgment in (Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265), Blayney J. examined the duties of the gardaí and referred to the dicta of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 at p 419:-
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
He further stated:-
“It is clear from these statements in regard to the duties of the police at common law that part of the duties of the gardaí are to detect and prevent crime. It follows in my opinion that if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so.”
In support of this argument, Blayney J. remarked that Section 109 (1) of the Road Traffic Act, 1961 requiring a motorist to stop does not actually give an express power to the gardaí; rather it obliges the motorist to stop when required to do so by a member of the gardaí but says nothing about the circumstances in which the gardaí have the power to stop a motorist. This is consistent with the existence of a common law power to stop motorists. Indeed, this power exists for practical reasons to allow gardaí to carry out their duties effectively and expeditiously without being concerned with the legality of their actions or that the performance of their functions may carry sanctions which in turn might deter them from their duties. Nonetheless the court stressed in Fagan’s case that these powers must be exercised bona fide and not in a capricious or arbitrary manner. I am satisfied that the silence in the legislation as regards the police power to pursue a motorist is confirmatory of a common law power to do so and that those powers must by implication include the power to operate random checks, erect road blocks and stop or pursue offending motorists.
Indeed in recent years the Oireachtas has seen fit to increase the penalties for dangerous driving and speeding. The gardaí have a clear obligation to ensure that these laws are upheld and to detect, prevent or stop any breaches thereof. In complying with these obligations it is obvious that the gardaí may owe different standards of care in a pursuit situation depending on the particular circumstances. For example, if there are good grounds for believing the perpetrator of a recent murder or bank robbery is attempting an escape, the standard of the duty owed to such a person may obviously be less than in the case of a trivial offender, particularly if the surrounding circumstances create particular risks in continuing the pursuit.
Turning to the facts of the instant case, Garda Meehan stated clearly that in all her eight years she had never seen anyone fail to stop at a speed check. Similar evidence was given by Sergeant Dempsey. The failure of the motorcyclist to stop outside Urlingford led those gardaí to form a suspicion that some sort of criminal activity had, or was, taking place so that the decision to pursue or tail the motorcyclist in the performance of their duty to detect and prevent crime can not, in my view, be seen as being in breach of any duty to those on the motor bike, notably in circumstances where the garda belief was both objectively reasonable and held bona fide. There is no allegation or evidence whatsoever of mala fides on their part in this case. I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed.
I also believe the learned trial judge was in error in her inference that the pursuit was one seamless unitary process from Urlingford to Kilfeakle. It seems to me the circumstances changed more than once during the pursuit, so that the 28 mile chase divides into separate sections. The first section was that between Urlingford and Cashel. During that stretch both vehicles achieved speeds in excess of 100 miles per hour. Nonetheless, the pursuing garda vehicle never got sufficiently close to identify the registration number of the motorcycle. Nor had the gardaí any reason at that stage to believe that the driver and pillion passenger were acting other than by way of joint venture.
In and through Cashel, however, rather different circumstances obtained. Firstly, on reaching the road block, the pillion passenger threw up her hands in a gesture which conveyed to the pursuing gardaí that she wanted to get off the bike. It seems to me that once the pursuing gardaí observed this behaviour the circumstances altered to some degree (with a corresponding elevation of the standard of care) because the gesture conveyed to the occupants of the pursuing vehicle that the pillion passenger might not be, or at any rate might no longer be, part of any joint venture. The gesture was also given at a time when the motorbike and pursuing gardaí were about to pass through the main street of Cashel, where it might reasonably be expected there might be large numbers of pedestrians, bicycles or other traffic. In such circumstances, it is not difficult to conclude that a different standard of care should prevail for as long as those two considerations remained relevant. However, the critical point is that the accident did not happen in Cashel but at a point ten miles from there.
It seems to me that a completely different set of circumstances came into being when the vehicles left Cashel. Firstly, the nature of the road was different and did not lend itself to excessive speed, at least in so far as the garda vehicle was concerned. Secondly, the occupants of the garda vehicle were aware that a road block had been set up ahead in Tipperary and were content to sit in behind the motorcycle, rather than to attempt to stop it in any particular way themselves. Thirdly, the garda vehicle became trapped behind an articulated vehicle for some time, so that when the garda vehicle came upon the scene of the accident some 9.6 miles outside Cashel, the accident had already occurred some one and a half minutes beforehand. Whatever about the speed of the motorcycle immediately before the accident, the evidence at trial was that the garda vehicle never exceeded 50 miles per hour along this stretch of roadway. Unless one took the view, which I do not take, that the gardaí in the following vehicle should have opted out of any further interest in these events by halting their car, I do not believe there was any breach of duty which the occupants of the garda vehicle owed, either to the driver of the motorcycle, or to the pillion passenger, over these last few miles, even if the plaintiff is deemed to be no more than an involuntary participant in events at that stage.
Even if it had been negligent on the part of the gardaí to follow the motor bike towards Tipperary, the question would still have to be addressed as to whether the driving of Mr Lynch at or near the scene of the accident constituted a novus actus interveniens such as would have exonerated the appellant’s agents in any event. The following passage in McMahon and Binchy, Irish Law of Torts, 3rd Ed., (Dublin, 2000) (at p 77) is useful in considering the kind of actions which may amount to a novus actus interveniens by a third party (who in this instance would be Mr Lynch):-
“From the case law we may state the following propositions with some degree of confidence:
1) If the third party’s act is wholly unforeseeable then the original defendant will not be liable
2) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act or is very likely, then the original defendant is still considered to be the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which will break the chain of causation between the plaintiff’s damage and the defendant’s conduct. This is even more obviously true where the intervening event is not a voluntary act at all: where A pushes B against C.
3) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervenor’s act in addressing this problem. If the intervenor’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly if the third party’s act is intentional. …if the intervenor’s act, however, is merely careless, negligent, or perhaps even grossly negligent, it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case. In Crowley v. AIB and O’Flynn and Others [1988] ILRM 225 we have seen that a negligent omission by the third party was deemed sufficient to break the chain and relieve the defendant.”
The authors go on to suggest that the courts in recent times are more likely to settle for a ‘multiple cause’ finding and apportion losses between concurrent wrongdoers. Thus at p. 78 the authors state:-
“All this means is that the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely between the defendant’s original conduct and the plaintiff’s damage.”
In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the garda vehicle as he left Cashel. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to Kilfeakle. He was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist. As Henchy J stated in the course of his judgment in Conole (at p 197):-
“However, as far as the negligence that resulted in the drownings is concerned, any such default by Fairway would have been merely a causa sine qua non and not a causa causans.
In terms of legal causation, there was only one act of negligence in this case: it was the defendants’ act of putting to sea in a boat which they knew to be unseaworthy and which was overloaded with unsupervised young people. Once the defendants
are shown to have been aware of the danger involved in that act, they are no more entitled to shed any part of their responsibility on to Fairway, on the ground that Fairway supplied an unseaworthy boat, than they would be entitled to saddle another person with part of the liability of the unseaworthiness of which they had knowledge had been caused by an earlier act done by that other person, e.g. a negligent collusion or a malicious injury caused by him.
The direct and proximate cause of this accident was the decision of the defendants, acting through Mr. Hugman, to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the causative negligence.”
The distinction between a causa sine qua non and a causa causans was further addressed by this court in Kenny v M.I.B. (Unreported, Supreme Court, 3 April, 1995) in circumstances where a negligent truck driver caused injury to a child who had been thrown from the open back of a truck which then rolled over him. In the course of his judgment Blayney J stated (at p. 3):-
“While there is undoubtedly a close connection, as the learned trial judge found, between the plaintiff’s being thrown from off the truck and his injury, in my view it was no more than the causa sine qua non. The plaintiff would not have received his injury had he not been thrown off the truck, but the causa causans was the back wheel of the truck going over him. And this was made very clear by the evidence of the plaintiff’s surgeon…”
Thus if there had been some want of care in the present case in continuing to follow the motor bike towards Tipperary, I am nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way. Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s injuries was Mr Lynch’s driving at the bend at Kilfeakle.
Nonetheless, given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable” considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council (No 2) [2003] 1I.R.84.
I find I must disagree with the inferences drawn by the learned trial judge in answering the questions posed for resolution at the end of the case. Indeed the form of the question is based on the assumption that the chase was one seamless and unchanging sequence from start to finish, an inference which in my view was mistaken having regard to the evidence. For the reasons already stated, I believe the standard of the duty of care varied at different points in this sequence and that there was no breach of that duty on the part of the appellant’s agents which was legally or factually causative of the accident at Kilfeakle. In this context it is important to note that Mr Lynch had always intended taking the Cashel/Tipperary road for the purpose of returning to Limerick from where he and his girlfriend had earlier travelled, so that there was no question of being forced to take the particular route by any garda action.
I am satisfied that the plaintiff’s injuries were caused entirely as a result of the reckless driving of Mr. Lynch. This recklessness was all the greater as he knew his girlfriend, who was a regular traveller on the bike with him, was pregnant at the time. He exposed his passenger to shocking danger and so admitted at the trial. It is not at all surprising that in the aftermath of the accident the plaintiff was heard to repeatedly state “I’ll kill him” in reference to Mr. Lynch. It emerged in evidence that Mr. Lynch had no insurance for his driving of the motorcycle, had been stopped on a previous occasion for having no insurance and also had a false number plate on the bike. It also was mentioned at the trial that he was subsequently convicted of various offences under the Road Traffic Act, 1961 arising from this incident. The significance of these matters lies only in demonstrating that Mr. Lynch had a motive of his own to accelerate away from the speed trap at Urlingford. It must be borne in mind also that Mr Lynch was already significantly in excess of the maximum speed limit and putting his pillion passenger at risk when first seen by the gardaí at Urlingford. In my opinion the only unbroken and seamless thread in this entire saga was the utter recklessness of Mr Lynch in his driving of the motor cycle on the evening in question. The proximate and immediate cause of the plaintiff’s injuries was the fact that at a bend marked by a continuous white line Mr. Lynch went totally onto his incorrect side of the road into a head-on collision with an approaching vehicle.
It is a tragic situation given that the plaintiff that the plaintiff, who at the time was only 20 years of age, was in the early stage of a pregnancy and suffered a miscarriage and other extremely serious injuries in this accident.
In my view however the appeal must succeed and it follows that the plaintiff’s claim must be dismissed.
Kelly v Director of the Equality Tribunal
[2008] I.E.H.C. 112
JUDGMENT of Mr. Justice Gilligan delivered on the 11th day of April, 2008
1. The plaintiff in these proceedings contends that the Equality Tribunal is in breach of the Convention for the Protection of Human Rights and Fundamental Freedom 1950, pursuant to s. 3 of the European Convention on Human Rights Act 2003 on the grounds of unreasonable delay in determining his discrimination claim under the Equal Status Act 2000, and that consequently his claim was not determined within a reasonable time, as required by Article 6.1 of the Convention. The plaintiff claims an award of damages to the amount of €100,000.
2. The background circumstances are that the plaintiff is an Irish citizen and a qualified teacher. He represents himself in these proceedings.
3. In 2002, the plaintiff applied for a place in University College Dublin (UCD) on the Masters and Social Science (Social Work) Degree course which is a two year post graduate course that in addition to the Masters degree leads to a professional qualification in social work in the Republic of Ireland. The plaintiff attended for interview at University College Dublin in February, 2002 and was aware that there were fifty places available on the course and that there were approximately one hundred applicants, almost all of whom were female.
4. By letter dated the 15th day of March, 2002, from the Department of Social Policy and Social Work at (UCD), the plaintiff was advised of the outcome to his interview in the following terms:-
“Dear Patrick
We are sorry to tell you that we are unable to offer you a place this year on the Master of Social Science (Social Work)/Higher Diploma in Applied Social Studies, for the session 2002 – 2004.
As you already know there was very keen competition for the limited number of places. However, we are pleased to inform you that your name has been placed on a waiting list and that you will be considered for any vacancy that may occur. Please let us have a telephone number where you can be contacted over the next six months.
We thank you for having come for interview.
Yours sincerely”
5. The plaintiff then became aware that Trinity College Dublin (TCD) were going to operate an equivalent course and the plaintiff applied for entry to this course towards the end of March, 2002, and was granted an interview, and in his own words “breezed through it”, and was offered a place on this course in April, 2002, which he accepted. The plaintiff says there is no distinction between the two courses and that therefore, they are identical. The plaintiff found it interesting that UCD had fifty places on offer on their course, whereas TCD had only seventeen, and yet he was admitted to the Trinity College course. He says the assessment was graded and he received an A plus in each section of the Trinity College assessment for their course. He was, he says, one of the top people selected for their course and rejected from being one of fifty from the UCD course. He says he felt quite aggrieved about that and it seemed to confirm that something was not quite right at UCD.
6. Having been admitted to the TCD course, the plaintiff then made a complaint to the Equality Tribunal on April 29th, 2002, that he had been discriminated against by UCD.
7. The plaintiff refers to s. 25(1) of the Equal Status Act 2000 to the effect that the Director of the Equality Tribunal shall investigate complaints referred to him or her under s. 21 of the Equal Status Act 2000, and that at the conclusion of an investigation pursuant to s. 25(1) and s. 25(4) of the Equal Status Act 2000, the Director shall make a decision on the complaint. Further the plaintiff refers to s. 75(2) and s. 75(3) of the Employment Equality Act 1998 to the effect that the Director may delegate any function conferred on the Director to an Equality Officer.
8. Subsequently, by way of a letter as dated the 19th day of August, 2002, from UCD, the plaintiff was advised to the effect that he was being offered a place on the Masters of Social Science (Social Work) – Higher Diploma in Applied Social Studies for the session which he had applied for, namely September 2002 – 2004. He was advised that the offer was provisional as his application had to be processed by the Faculty of Arts, and he was asked to confirm as soon as was possible but not later than the 28th of August, that he was accepting the place. The plaintiff did not accept the place as offered to him by UCD, embarked on the course in September, 2002 at TCD and continued with his complaint against UCD with the Equality Tribunal, against a background where he himself says there is no distinction between the courses, and that they are identical.
9. The handling of the plaintiff’s complaint proceeded along reasonable lines with correspondence passing back and forth between the plaintiff, the Equality Tribunal and UCD.
10. In December, 2002 the plaintiff took a view that he had been victimised by TCD as a result of making the complaint concerning UCD and he, accordingly, made the first of three complaints against Trinity College on the basis of victimisation. The plaintiff, in general terms, took a view that he was victimised by the authorities in TCD, because of the fact of having made a complaint against UCD. The plaintiff takes the view that his difficulties at TCD were due to the delay by the defendants in dealing with his complaint, and due to the actions of UCD. The plaintiff brought three complaints of victimisation to the Equality Tribunal against TCD, all of which were heard together in June, 2005, and none of the complaints were upheld. From this decision of the Equality Tribunal the plaintiff appealed to the Circuit Court and following a hearing in November, 2004 the appeal was dismissed.
11. The plaintiff left TCD in June 2003, and started a course in England in September, 2003 which was a one year course leading to qualification as a secondary school teacher in England. The plaintiff successfully completed this course in the summer of 2004. Between the summer of 2003 and the 20th of March, 2005, the plaintiff did not attempt to advance in any way his complaint against UCD before the defendant.
12. Subsequent to the 20th of March, 2005, it appears that there was a barrage of correspondence with the plaintiff raising the issue of delay, the defendants apologising for the delay and there was a legal issue as to the correct format for the proceedings and it was necessary to take senior counsels opinion.
13. There was a further difficulty in that in the Spring of 2005, the plaintiff complained about the solicitor, advising the Equality Tribunal, to the Law Society on a number of grounds as set out in letters from the plaintiff to the Equality Tribunals solicitor as dated respectively the 18th day of March, 2005, and the 20th day of March, 2005. None of these complaints in respect of the solicitor were upheld at the early prima facie stage of the disciplinary process within the Law Society, and from this decision the plaintiff did not appeal.
14. Further, an Officer appointed within the Equality Tribunal, Mr. Hurley, was objected to by the applicant because of his involvement with the solicitor to the Equality Tribunal who had been complained to the Law Society by the plaintiff. The plaintiff in October, 2005 requested Mr. Hurley to relinquish the functions delegated to him in respect of the plaintiff’s case, with the result that he took the view that he had no alternative but to stand aside. The Director of the Equality Tribunal then took the decision that an external Equality Officer should be appointed which resulted in the appointment of Mr. Hugh O’Neill who dealt with the case and handed down a written decision on the 2nd day of November, 2006.
15. I have read and considered the content of the affidavit as sworn by the plaintiff on the 24th day of September, 2007, upon which the plaintiff relied in giving his evidence.
16. The plaintiff refers to the consequences of the delay as being quite severe. He alleges that UCD had passed on information about his complaint to TCD and that he had experienced a lot of difficulty at TCD as a result. He takes the view that if the case had been dealt with at an earlier date this would never have arisen because the matter would have been finalised. The plaintiff complains of the uncertainty of the rumours, innuendo and the delay, with no clarity forthcoming from the Tribunal about when there would be a hearing or a decision handed down. These, the plaintiff says, were all the consequence of the delay. The plaintiff takes the view that he had to leave TCD because he felt under attack there. He made various complaints of victimisation against TCD pursuant to the Equal Status Act 2000, and these were not upheld. The plaintiff takes the view that he was victimised by the authorities at TCD and that this victimisation is directly related to the delay in the Equality Tribunal dealing with his complaint, as against UCD. The plaintiff accepts that he is not seeking any relief, or damages, from Trinity College in these proceedings. The plaintiff takes the view that the offer from UCD that was contained in the letter of the 19th August, 2002, of a place on the course, as applied for, was a provisional offer and was solely made to undermine the complaint he had made against UCD. He takes the view that in order to accept the offer he would have had to have said that he was reconciled to UCD and was taking the offer which would basically undercut his whole complaint. He takes the view that if he had accepted the offer that would have been the end of the complaint. The plaintiff says that he did not accept the place on the course because at that stage he had been offered and accepted a place on the TCD course.
17. The plaintiff complains about leaks, about alleged lies that were being spread about him and that he was bound by the provisions of the Equal Status Act 2000, and could not discuss the substance of his complaint. He complains of UCD leaking information about his complaint to other colleagues and that other social work students had been told details of his complaint. He alleges he was driven out of the TCD course, that he became a persona non grata and that a cloud of suspicion, resentment and outright hostility followed him everywhere he went in TCD. He complains of a lack of legal representation and that the Trinity College authorities and the UCD authorities were able to afford the best legal representation and he believes that if he had had legal representation he would have won his case against Trinity College.
18. Mr. Kelly complains that he had to leave the country to escape the rumours that were spread from 2000 to 2006 about him and that his good name has been affected. Further, that he had to give up his career in England to come home to pursue this case.
19. Mr. James Hurley, a civil servant and a member of the staff of the Equality Tribunal, gave evidence that since September, 2004 he was in charge of the Equal Status Unit of the Tribunal. He referred to the fact of the legal advisor raising an issue as to whether the plaintiff’s claim was properly brought under the Equal Status Act or whether the particular course in question would be regarded as vocational training which would have the effect that the claim should be brought under the Employment Equality Act. There were also a number of other cases which involved the same point and it was decided to get Senior Counsel’s opinion which became available in July, 2005. At, or about, that time the person who had been dealing with the plaintiff’s case relinquished responsibility and he took over the handling of the case. Subsequently, the plaintiff raised the issue of a possible bias arising from the fact that the internal legal advisor had advised Mr. Hurley in respect of the case and in November, 2005 he relinquished responsibility for the case. It was then that a decision was taken to retain an outside Equality officer to investigate the complaint.
20. Mr. Hurley referred to the letter of 30th, March, 2005, in reply to the plaintiff’s letter wherein he stated:-
“I am sorry that there has been a delay in proceeding with the investigation of your complaint”.
Mr. Hurley expressed the view that he was sorry for the delay which was brought about through pressure of work that existed in the Tribunal at that point in time. The issue as regards the two Statutory Instruments arose in March, 2003 and the papers went to Counsel in May, 2005 and were returned with an opinion in July, 2005.
21. Mr. Hurley referred to a system of informal prioritisation in that consideration would be given to prioritising a claim if a request was received to do so and a valid reason advanced. Mr. Hurley described the procedure on the basis that if a person requested that their case be dealt with expeditiously because they have some particular reason, then such a request would be considered. It was not, as such, a formal system.
22. Mr. Hurley referred to the fact that there were previous cases which took about five years and he accepted that the plaintiff’s case was approaching the upper limit of the longest ever delay that the Equality Tribunal had encountered.
23. Mr. Eugene O’Neill, the Equality Officer who dealt with the plaintiff’s complaint in a very careful and reasoned decision, referred to the core of the plaintiff’s case being that he was less favourably treated at interview by UCD than a woman in a similar position would have been, and this was because the University was inherently biased against men in its school of Social Sciences. As evidence for this proposition the plaintiff put forward an alleged failure on the part of UCD in not doing sufficient to ensure gender balance in those applying for their Undergraduate Social Science courses. Beyond giving uncontested evidence which Mr. O’Neill accepted that the interviewers were rude and aggressive towards him, he advanced no other evidence to show that the treatment of him at the time was based on his gender, and that a female candidate for interview would have been treated in a different manner.
24. Mr. O’Neill referred to the fact of the plaintiff asking the Tribunal to find that the superior marks he obtained at his TCD interview showed that the marks he received at UCD interview were somehow imbued by a spirit of discrimination. In Mr.O’Neill’s view they merely showed that he did an extremely good interview when applying for the course at TCD. He felt confirmed in this view by the fact that Trinity publicly advertised the course and after the interview the gender balance on that course was exactly the same as that in UCD.
25. Mr. O’Neill describes the plaintiff’s submissions as being wide ranging and thought provoking, and he presented his case at hearing in a most able manner.
26. Mr. O’Neill, however, took the view that the plaintiff had not established facts from which discrimination could be inferred. Mr. O’Neill clarified his situation, however, by indicating that even if he had accepted that the plaintiff had established sufficient facts from which discrimination could have been inferred, having heard the evidence in its totality, he would have come to the view that UCD would have discharged the onus of proof placed upon it.
27. Mr. O’Neill accepted the evidence given by the University that it did all in its power to ensure that its Social Science course attracted a better gender balance. The fact that it did not have such a balance did not in the view of Mr. O’Neill constitute evidence of discrimination on the part of UCD.
28. In relation to the plaintiff’s own case, the uncontroverted evidence before Mr. O’Neill was that eighty seven women and six men applied for the Masters Degree course. Of the fifty initially offered a place, three were male, and two of those were placed first and second. The fifteen people placed on the waiting list included the remaining three males. All of these fifteen were offered places on the course prior to the end of August, and every male applicant for the degree course was, prior to its commencement, offered a place on the course. Mr. Kelly, the plaintiff herein, had in the meantime been offered a similar course in TCD and, therefore, was in the happy position of being able to reject the offer of UCD.
29. Mr. O’Neill concluded that Mr. Kelly, the plaintiff herein, had failed to establish a prima facie case of discrimination on the gender ground, and, therefore, his claim failed.
30. The plaintiff is in the process of taking legal advice in advancing an appeal from this decision.
31. Mr. Kelly submits that the appropriate criteria to recover damages are those as set out in Pride Valley Food Ltd v. Hall and Partners in the High Court of Justice, Queens Bench Division, wherein Toulmin J. stated at para. 190 of his judgment:-
“In order to recover damages the claimant must show:
(a) That the kind of loss for which he claims damages (but not necessarily its extent) was reasonably foreseeable.
(b) That the loss which he suffered was in fact caused by the defendants breach of duty – it is enough if the breach was an effective cause of the loss – see Banque Brusselles SA v. Eagle Star [1999] 1 QB at p. 375 per Sir Thomas Bingham M.R.
(c) That the loss was not too remote.”
32. The plaintiff makes the case that if his complaint to the Director of the Equality Tribunal had been dealt with prior to him starting his chosen course at TCD, the problems as outlined by him would not have arisen. He takes the view that there was a six month period between March and September, and in his view the complaint could quite easily have been dealt with in this time. The plaintiff makes the submission that if the complaint had been dealt with while he was at Trinity College, he could then have gone to the authorities there and said to them that this particular complaint which they knew about, has been heard and upheld and that maybe in those circumstances they, to quote the plaintiff would have “gotten off my back”.
33. The plaintiff makes the case that a final decision has not been made as the complaint against UCD has been appealed to the Circuit Court. The plaintiff says this is an ongoing issue. He complains that he was not able to defend himself against what was being leaked about him, and the lies that were being spread about him and that he was bound by the confidentially provisions of the Equal Status Act and could not talk about the substance of his complaint. He makes the case that he was driven out of Trinity College and became a persona non grata and that a cloud of suspicion, resentment and outright hostility followed him everywhere he went in TCD, and that there was no one he could turn to.
34. The plaintiff submits that in February, 2005 he left a teaching job in England to come back to Dublin to fight this particular case, and that he has suffered three years’ loss of earnings and incurred travelling costs.
35. The plaintiff complains that he does not have the benefit of legal advice.
36. Further, the plaintiff relies on the United States Supreme Court decision in United States v. Alvarez Sanchez, (1994) 511 U.S. 350, wherein the Court stated, per Justice Thomas:-
“To delay is ‘to postpone until a later time’ or to ‘put off an action’, a delay is a ‘postponement’… The term presumes an obligation to act.”
37. The plaintiff submits that the Director of the Equality Tribunal had an obligation to act. She had an obligation under s. 25(1) of the Equal Status Act 2000, to investigate his complaint, and she had on obligation under s. 25(4) of the Equal Status Act 2000, to make a decision on the case. It is submitted by the plaintiff that the Director delayed until November 2nd, 2006, in making a decision on a case that was referred to her on April 29th, 2002. Mr. Kelly submits that the delay was not reasonable and he asks that the court find the Director in breach of her duty under s. 3 of the European Convention on Human Rights Act 2003 and he seeks an award of damages in an amount of €100,000.00.
38. Mr. Durcan on the defendant’s behalf accepts that as and from the 31st day of December, 2003, every organ of the State was obliged to perform its functions in a matter compatible with the State’s obligations under the Convention pursuant to s. 3 of the European Convention on Human Rights Act 2003.
39. Section 3 states:-
“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the States obligations under the Convention provisions.”
40. Article 6 of the European Convention on Human Rights states inter alia:-
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”
41. Mr. Durcan relies on the judgment of the Court of Human Rights in McMullen v. Ireland (Application No. 42297/98) as handed down on the 29th day of October, 2004, wherein the court stated at para. 33 of its judgment:-
“The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation.”
42. Taking Article 6 of the European Convention and the relevant passage from the judgment in McMullen, Mr. Durcan submits that while the Convention obligation is to have a hearing within a reasonable time, that time is to be determined having regard to the four matters as set out in McMullen being:-
“1. Circumstances of the case having regard to the criteria laid down in the courts case law.
2. The complexity of the case.
3. The conduct of the applicant and of the relevant authorities.
4. The importance of what is at stake for the applicant in the litigation.”
Further Mr. Durcan submits that the relevant period to be considered in this case is from the 31st day of December, 2003, being the date upon which s. 3 came into effect until the 2nd day of November, 2006, being the date upon which the Equality Tribunal issued its decision. The relevant principle in respect of the period prior to 2003 is distinctly outlined by Kearns J., in his judgment in Dublin City Council v. Fennell [2005] 1 IR 604 at p. 615:-
“The Government was obliged to accept the ruling of the European Court in judgments against it, but the Convention otherwise placed no direct obligations on public authorities.”
43. It is further submitted that the Equality Tribunal is a public authority and was under no obligation under the Act prior to it coming into force. It is submitted that the only conduct for which damages can be awarded against the Equality Tribunal is with regard to conduct, or actions, which took place after the statutory duty was imposed, and, by definition, the defendant could only fail to comply with the statutory duty from the moment when the statutory duty arose.
44. The defendant relies on the reasonableness aspect and accepts that the court is entitled to look at what happened prior to the 1st day of January, 2004, but that is entirely different from indicating that the court is entitled to give damages in respect of matters that occurred prior to the Act coming into force.
45. It is submitted that it is patently clear that the plaintiff, by the time he had even lodged his complaint, had accepted a place in TCD, having acknowledged that the two courses were in effect identical. It is also clear that he was offered a place in UCD prior to the course commencing, and also the case that at some time in the summer of 2002, the plaintiff was no longer interested in taking up a place in UCD on the course, as offered to him. Mr. Durcan submits that, in effect, the plaintiff, at an early stage, was no longer looking to get into UCD and, in effect, was looking for compensation for what UCD allegedly had done to him. The facts however, Mr. Durcan suggests, boil down to the plaintiff not being offered a place in March, but being offered a place in August in circumstances where, as it happens, he had already taken up a place in an equivalent course in TCD, Dublin, and that was the case which the Equality Tribunal was being asked to deal with.
46. Pursuant to the Equal Status Act, the maximum compensation which the plaintiff would be entitled to if successful in his complaint was the maximum amount that could be awarded by the District Court in civil cases in contract, being €6,395.00.
47. It is submitted that the Equality Tribunal was entitled to come to a conclusion that the case on the basis of its facts had in reality become a compensation case. There was provision for prioritisation, but that this was not a case, it is submitted, that merited such prioritisation because it was, in effect, a compensation claim. There was no correspondence from the applicant between the summer of 2003 and the 20th of March, 2005, which at least indicates that the plaintiff, if he did not agree to that course of action, acquiesced to it. In June, 2004 the three alleged victimisation complaints against TCD were heard and a decision was handed down in November, 2004. There was a barrage of correspondence in or around March, 2005 and then the legal issue was attended to in respect of which it was necessary to obtain counsels’ opinion which was received in July, 2005. Mr. Hurley, the Equality Officer appointed had to step aside as a result of a complaint from Mr. Kelly following a suggestion from him that it was inappropriate for Mr. Hurley to decide the complaint, given that he had been advised by the internal solicitor who Mr. Kelly had complained to the Law Society.
48. Mr. Durcan submits that it was reasonable for Mr. Hurley to step aside in the circumstances, and for the Director to bring in an independent Equality Officer to deal with the plaintiff’s complaint.
49. It is submitted that when the plaintiff complained of delay in March, 2005 a letter dated the 30th day of March, 2005 was forwarded to him from Mr. Hurley apologising for the delay in proceeding with the investigation of his complaint, advising him of the legal problem that had arisen, indicating that counsels opinion was being sought, that a copy of the opinion would be forwarded to him and he would have the opportunity to make submissions on it.
50. It is submitted that the court has to look at the overall context of the issue that was at stake and the level of its importance.
51. Mr. Durcan makes a reference to R (Greenfield) v. Home Secretary [2005] UKHL 14, where the House of Lords dealt with the issue of damages pursuant to Article 6 of the European Convention. Mr. Durcan accepts that the statutory regime in England is different to the statutory regime applicable in Ireland, but Lord Bingham, in his judgment, refers to the fact that Article 6 breaches are slightly different from other breaches because they are in effect procedural breaches, and that, almost by definition with regard to other breaches, damages flow but in respect of a procedural breach, being a breach of procedure, it is not necessary that any damages flow from it. Mr. Durcan submits that, as a matter of logic, this view must be correct.
52. Reference is also made to the issue in principle as regards whether damages, if they are to be awarded, should be on the same basis as the Court of Human Rights has awarded damages in respect of Article 6 claims, bearing in mind Irish law. Mr. Durcan concludes by indicating that it may not be necessary to get into a detailed discussion as regards the appropriate level of damages because whether you approach the issue in this case from the Strasbourg viewpoint, or from the Irish viewpoint, on damages, any damages, in the particular circumstances that pertain here, are either going to be nothing or something very small indeed.
53. Mr. Kelly in reply submits that s. 3 of the European Convention on Human Rights Act 2003 created a new tort in Irish Law and that damages flow from the breach of an Irish tort.
54. Mr. Kelly emphasises that the case, in reality, is about his good name. Mr. Kelly submits that the delay in the handling of the complaint affected his good name and that if the complaint had been dealt with speedily the value to him would have been a finding in his favour.
55. Mr. Kelly emphasises that the House of Lords decision in Greenfield is not a reliable precedent because of the preconditions that are laid down to an award of damages by a Court in the United Kingdom pursuant to s. 8 of the Human Rights Act 1998 and that none of these preconditions are in the Irish Act. Mr. Kelly submits that the English Act did not create a tort whereas the legislator has created an Irish tort and damages should be approached on that basis by the Court.
Conclusion.
56. There can be no difficulty in stating that the delay of four years and six months in dealing with the plaintiff’s complaint to the Equality Tribunal is undesirable. The issue, however, which this Court has to determine is as to whether or not the delay involved is unreasonable. Fortunately, explicit guidelines are set forth in the judgment as handed down by the European Court of Human Rights in Mullen as regards the criterion to be used in assessing whether in all of the circumstances the delay is unreasonable. The Court has emphasised that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Courts case law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities and the importance of what is at stake for the applicant in the litigation.
57. The factual circumstances of this case are, in my view, of particular significance. Despite the applicant’s vociferous and multiple complaints as regards the handling of the interview process in respect of his application for a place on the Master of Social Science (social work) Higher Diploma in Applied Social Studies 2002/2004 course in UCD, while not being admitted initially to a place, he was placed on the waiting list. Of the one hundred applicants for the fifty places only a very few were male and prior to the completion of the allocation of places all the male applicants including the plaintiff were offered a place on the course, the plaintiff being offered his place by way of a letter of the 19th August, 2002, with the course commencing in September, 2002. The plaintiff by the 19th August, 2002, had already applied for, and had been granted, a place on an identical course being run by TCD and had also initiated his complaint of gender discrimination to the Equality Tribunal. He may, initially, when he made the complaint have been contemplating any number of reliefs, one of which may have been that he would be offered a place. Clearly, however, events had overtaken any such reliefs which he may have contemplated because he had already, in August, 2005, been offered a place and thus the only relief that could have been achieved was that of damages in the event of proven gender discrimination. His complaint was dealt with by Mr. Hugh O’Neill, Equality Officer, and his decision given on the 2nd November, 2006, to the effect that the plaintiff failed to establish a prima facie case of discrimination on the gender ground and his claim failed. From this decision the plaintiff has appealed to the Circuit Court and is taking further legal advice.
58. Against this background the importance of what was at stake for the plaintiff would only rank at a very low level of any criteria and it is the view of this Court that the only issue at stake in the initial complaint could have been a finding of gender discrimination and the awarding of compensation and that, in itself, is probably very unclear because it has to be borne in mind that the letter of 15th March, 2002, in effect, advised the plaintiff that he wasn’t getting an initial place but he was suitable for the waiting list and his name had been placed on that list and by the 19th August, 2002, he had been offered the place. This Court takes the view that on any interpretation of the factual events nothing of any significant importance could have been or be deemed to have been, at stake for the plaintiff.
59. There is also the fact that it is clear that damages in this case can only be awarded from the first day of January, 2004 but clearly the Court can have regard to the events which occurred prior to this date. From the summer of 2003 through the entire of 2004, and up to and including the 20th March, 2005, the plaintiff never raised any issue with the defendant as regards the hearing and disposal of his complaint against UCD.
60. During 2004 there was a hearing of the three complaints of victimisation against TCD, in which the plaintiff failed and the appeal to the Circuit Court in which he also failed in November, 2004. It was only on the 20th March, 2005, that there was, in fact, a barrage of correspondence and complaints about delay. From the 20th March, 2005, onwards there was the difficulty with the legal point that had arisen and Counsel’s opinion had to be obtained and was duly available in July, 2005 and then had to be referred to all interested parties for their comments. There was the difficulty raised by the plaintiff with the internal solicitor who had been advising the Equality Tribunal and Mr. Hurley, the appointed officer and the unfounded complaints that were made by the applicant concerning the solicitor to the Law Society, the difficulty that arose with Mr. Hurley because of a complaint by the plaintiff as regards his suitability to deal with the matter because of his association with the in-house solicitor, the fact of his withdrawal, at the plaintiff’s request the fact of the decision by the Director of the Equality Tribunal to bring in Mr. O’Neill, an external Equality officer to deal with the matter, the hearing itself and the decision as then handed down on the 2nd November, 2006.
61. I take the view in all the circumstances of this particular case, and having regard to the level of the importance of what was at stake for the applicant, while as previously stated the delay involved was undesirable, I do not consider that the delay was unreasonable.
62. Given the conclusion I have reached on the delay aspect the issue as to any damages to which the plaintiff may have been entitled falls away. I shall do no more than express the conclusion I would have reached on this aspect had it arisen for decision. Having considered the various complaints as made by the plaintiff regarding the consequences of his complaint against UCD not having been dealt with for a period of four and half years from the date on which it was made to the Equality Tribunal, I am quite satisfied that s. 3 of the 2003 Act, as previously referred to herein, only brought the plaintiffs entitlement to damages into being as and from the 1st day of January, 2004. I take the view that I am entitled to have regard to the events that preceded this time but not to award damages in respect thereof. As of the 1st day January, 2004, the plaintiff was pursuing a post graduate course in England which he successfully concluded. The plaintiff’s complaints mostly relate to a period in time prior to the 1st day of January, 2004, other than an ongoing perceived insult to his character and good name which I reject as having no connection to any delay, and a claim for loss of earnings and expenses by reason of having come home from England to pursue this complaint, which claim I also reject as having no connection to any delay. I take the view that on the basis of the evidence adduced there is no causal connection established between the plaintiff’s alleged complaints arising from the delay and the delay itself in dealing with the complaint. In my view, the plaintiff has made out no claim for damages arising from the delay involving the Equality Tribunal dealing with his complaint.
63. Accordingly, I dismiss the plaintiff’s claim.
Anglo Irish Bank Corporation Ltd v Collins
[2011] IEHC 385
JUDGMENT of Ms. Justice Dunne delivered the 13th day of July 2011
This is a claim by the plaintiff (“Anglo”) in respect of a number of sums claimed to be due by the defendants to the plaintiff. The overall sum claimed is a sum of €6,882,970.06. These sums are said to be due on foot of loan facilities provided to the defendants and one Richard Fitzgerald and on foot of guarantees signed by each of the defendants in respect of loan facilities advanced to M.D.Z. Limited. A further sum is claimed on foot of a performance bond but that issue has been postponed for the time being. There is no dispute between the parties that the sums in respect of the partnership are due. Further, there is no dispute as to the amount due on foot of the guarantees. However, it is submitted that the plaintiff is precluded from recovering the sums due in respect of the partnership monies and in respect of the sums due on foot of the guarantees by reference to the principle ex turpi causa non oritur actio” in respect of an issue arising on foot of the guarantees.
The issue raised related to the admitted alteration by the solicitor for Anglo of the guarantees signed by the defendants and as such whether the alterations made to the guarantees amount to a forgery such that Anglo cannot rely on the documents to recover the sum claimed on foot thereof against the defendants. Further, it as claimed that by virtue of the principle of ex turpi causa non oritur actio, the Bank could not rely on previous guarantees signed by the defendants.
The issue raised in respect of the counterclaim was the question as to whether or not the receiver was negligent in his conduct of the receivership and as such it was contended that Anglo was vicariously liable for the negligence of the receiver.
I propose to deal with matters by first considering the arguments made by and on behalf of the defendants in relation to the principle ex turpi causa non oritur actio, which is focused on the circumstances surrounding a guarantee entered into by the defendants on the 20th August, 2008. It would be useful in the first instance to set out certain provisions of the Criminal Justice (Theft and Fraud Offences) Act 2001. Section 2(2)(c) provides:-
“For the purposes of this Act a person deceives if he or she –
. . .
(c) fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he or she stands in a fiduciary or confidential relationship,
and references to deception shall be construed accordingly.”
Section 30 contains the meaning of false and making and I will refer to s. 30.
Section 30 (1) provides:-
“An instrument is false for the purposes of this Part if it purports
(a) to have been made in the form in which it is made by a person who did not in fact make it in that form,
. . .
(e) to have been altered in any respect by a person who did not in fact alter it in that respect,
. . .
(2) A person shall be treated for the purposes of this Part as making a false instrument if he or she alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).”
Section 25 is also relevant in that it deals with the offence of forgery. It provides as follows:-
“(1) A person is guilty of forgery if he or she makes a false instrument with the intention that it shall be used to induce another person to accept it as genuine and, by reason of so accepting it, to do some act, or to make some omission, to the prejudice of that person or any other person.
(2) A person guilty of forgery is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”
Section 26 creates the offence of using a false instrument and s. 31 provides a definition of the meaning of the words “prejudice” and “induce”.
It was admitted that certain alterations were made to the guarantees by Mr. O’Leary, the solicitor for Anglo, post execution. Mr. Hussey S.C. on behalf of the defendants contended that under the headings contained in s. 30(1)(a) to (g) inclusive of the 2001 Act, each guarantee was a false document. He also referred to s. 30(2) and relied on same. He submitted that the alterations made the document false by altering the identity of the person who signed the guarantee or the capacity in which the guarantee was signed. In his submissions, the guarantees as altered became false instruments within the meaning of s. 30 and consequently he submitted that the Bank has in these proceedings taken a false instrument and used it with the intention that it would be accepted on its face by anyone who read it to conclude that it was genuine. In other words the acts of Mr. O’Leary, the Bank’s solicitor, come within the definition of forgery within the meaning of s. 25 of the Act. Reliance was also placed by Mr. Hussey on s. 26 of the Act in relation to the use of a false instrument.
It was the conduct described by Mr. Hussey above as the turpitude that lay at the heart of Anglo’s claim in these proceedings and as such, the maxim ex turpi causa non oritur actio applies. A number of authorities were referred by Mr. Hussey in support of his contentions in this regard including, inter alia, Holman v. Johnson, 1 COWP 342, Bowmakers Limited v. Barnet Instruments Limited [1945] 1 K.B. 65 and Stone and Rolls Limited (In Liquidation) v. Moore Stephens [2009] 1 AC 1391. I will refer to these and other decisions subsequently in the course of this judgment.
Mr. Hussey was also critical of the fact that during the course of summary judgment proceedings at an earlier stage in this case, Anglo did not inform the court of Mr. O’Leary’s alterations. It is the case that in June 2010, Mr. O’Leary informed Anglo of the making of the alterations but this fact was not referred to by Anglo in its application to amend the statement of claim herein to include a reference to a 2005 guarantee executed by the defendants. Mr. Hussey submitted that Anglo had a fiduciary relationship with the court by virtue of s. 2(2)(c) of the 2001 Act, which I have set out above. Accordingly, he submitted that there was a lack of uberrima fides on the part of Anglo towards the court. In essence, the defendants relied on three acts of turpitude alleged to have been committed by Anglo, namely, forgery contrary to s. 25, using a false instrument contrary to s. 26 and a lack of uberrima fide on the part of Anglo in failing to disclose to the court in the course of an application to amend the statement of claim that Mr. O’Leary had made alterations in the guarantee. Mr. Hussey’s submissions in relation to these points set out the background to the first issue that had to be determined by the court in these proceedings.
It would be helpful to refer to the background to this matter. Mr. Kiernan and Mr. Collins together with one Richard Fitzgerald agreed to purchase and develop lands at Kenmare in Co Kerry ( hereinafter referred to as the Glanerought development). The lands were purchased in the joint names of Mr. Fitzgerald, Mr. Collins and Mr. Kiernan. A development company was to be incorporated to seek planning permission and to develop the land. That company was incorporated as MDZ Ltd. Mr. Kiernan and Mr. Collins described themselves in evidence as silent partners in the transactions that took place in this case. Mr. Fitzgerald was the main instigator of the scheme. The development was a mixed development of 92 housing units consisting of three bedroomed semi-detached bungalows, three bedroomed detached houses, three bedroomed semi-detached houses, two bedroomed apartments, three bedroomed townhouses and four bedroomed semi-detached townhouses.
The defendants together with Mr. Fitzgerald obtained a mortgage from the plaintiff which was entered into on the 1st April, 2005 for the purchase of the land. Over the years, Mr. Fitzgerald, Mr. Collins and Mr. Kiernan signed a series of facility letters in respect of the liabilities of M.D.Z. Limited and a guarantee in 2005 in respect of the facilities provided to M.D.Z. Ltd.
I now want to refer to the evidence of Mr. Kiernan and Mr. Collins as to the execution of the guarantees, to consider interrogatories furnished by Ms Crowley, of Barry M.O’Meara, Solicitors who acted for the defendants, Mr. Fitzgerald and MDZ Ltd. in the dealings with Anglo and the evidence of Mr. O’Leary. I will also consider relevant correspondence.
I propose to take matters somewhat out of sequence and to start with the evidence of Mr. O’Leary, a solicitor in the firm of Fitzgerald, Solicitors, in Cork. He confirmed that his précis of evidence in these proceedings was true and accurate. He was instructed by Anglo on the 21st August, 2008, to prepare guarantees in accordance with a facility letter of the 20th August, 2008. He sent three guarantee documents to Loraine Crowley, solicitor, of Barry M. O’Meara and Son, solicitors, that evening. One was for Mr. Fitzgerald and the others were for the defendants herein. Mr. O’Leary explained that he had a suite of documents which had been provided by the Bank for such a purpose. One of the suite of documents was a guarantee form which included a non recourse provision at clause 2.4. The facility letter in this case provided for an unlimited joint and several liabilities on foot of the guarantees. Through inadvertence, the guarantees sent by Mr. O’Leary, included the non recourse provision at clause 2.4. Mr. O’Leary described this as an administrative error. He discovered this error on the 26th August, 2008, and that same day he sent unlimited versions of the guarantees to Ms. Crowley by Email.
He noted a curious feature of the guarantee in that it contained a page for completion by the borrower, saying, that there was absolutely no reason for it. As he said, if there was no execution by the borrower in respect of the guarantee, he would have had no concern as to its enforceability.
There was an exchange of correspondence between Ms. Crowley and Mr. O’Leary after he furnished the correct version of the guarantees. She asked, in a letter of the 26th August, 2008, “if you would approach your client to see whether they could have these guarantees re-drafted to exclude our clients’ principal place of residence”. She also asked if her clients had previously signed guarantees and asked for a copy of same, if so. She described her clients in that letter as “Richard Fitzgerald and others”. Mr. O’Leary sought instructions from Anglo and no concession was made by the Bank. He confirmed this to be the case to Ms. Crowley by Email of the 4th September, 2008. An issue was raised in the course of the hearing about a letter of the 5th September, 2008, from Ms. Crowley to Mr. O’Leary, which he apparently did not see at the time but nothing turns on this.
Subsequently, the guarantees were returned, not to Mr. O’Leary as one might have expected, but direct to the Bank. Subsequently, they were sent to Mr. O’Leary by the Bank for what is described as a security report.
I now want to refer to the form of guarantee at issue in this case. The guarantees as returned to the bank are unlimited guarantees. It is stated therein that they are in addition to all other securities held by the Bank. (See clause 13). This is a provision which has some relevance given that there was an earlier guarantee which is relied on by Anglo in these proceedings.
I now want to look in some detail at the final pages of the guarantees. The first page I want to refer to is one headed, “First Schedule”. Under this heading, certain information was recited, namely, the name and address of the guarantor. Below that was a section headed “Second Schedule” and it contained the name of the borrower, M.D.Z. Limited and its address.
The next page was a page intended to be signed by the guarantor. It contained a number of paragraphs including a warning as to the affect of the guarantee to the effect “as a guarantor of this loan, you will have to pay off the loan, the interest and all associated charges if the borrower does not. Before you sign this guarantee you should get independent legal advice.” Unfortunately, it is the case that for whatever reason and there has been no evidence on this point, this page was not signed by either of the defendants in respect of the guarantee prepared for their respective signature.
The next page was headed “For Completion by the Borrower”. It provided a space for execution by the borrower and also for execution by the Bank. For some strange reason and it appears to be an error that emanated from Mr. O’Leary’s office, there was a second page in identical terms headed “For Completion by the Borrower” included in the guarantee. It was this page that was signed by each of the defendants on the respective guarantees in their own name. It is a matter of some curiosity that this should be so, but again one which is not explained, that both defendants separately signed their own guarantees on the page headed “For Completion by the Borrower.” Each signature was witnessed by Ms. Crowley. For completeness, I should mention that the guarantees were dated the 30th September, 2008, but the letter sent by Ms. Crowley to Anglo enclosing the guarantees was dated the 29th September, 2008. Again this is curious, but in the overall context of this case is not of any practical significance.
Returning to the evidence of Mr. O’Leary, he received a letter dated the 2nd October 2008, on the 6th October, from Anglo enclosing the guarantees as executed. Although the letter referred to two guarantees, in fact all three guarantees were enclosed, namely that of Mr. Fitzgerald, Mr. Kiernan and Mr. Collins. Mr. O’Leary examined the guarantees. He wrote on the outside of the guarantees on the cover sheet the date which appeared in the body of the document as the date of execution. He said he did this for identification purposes – in other words, one could tell at a glance what the document was. He then noticed that each of the guarantors had signed on the wrong page. He then did something, which in the light of these proceedings, I am sure has caused him many sleepless nights. He put a line through the word “Borrower” on the page headed “For Completion by the Borrower” and wrote in the word “Guarantor”. He crossed out the reference to “M.D.Z. Limited” on the same page and wrote in the named of the relevant guarantor in its place on each document so that the documents now read “Signed by Declan Collins” and “Signed by Michael Kiernan” respectively. He went on to say that he was embarrassed by what he had done. He had not done it to prejudice anyone and he had no dishonest intention in so doing. He added that he did not inform the Bank of his actions in this regard. He assumed it was “Ok” to this and of no significance.
Subsequently, he sent a draft security report back to the Bank on the 7th October, 2008. He never gave any further thought to the alterations. It was not until May 2010, that he realised that there was a problem in relation to the guarantees.
In the course of cross examination, Mr. O’Leary explained that he received a communication from P.J. O’Driscoll, solicitors for Anglo as to an issue with alterations or in delineations in the guarantees. At this point, he asked to see the guarantees again. He was furnished with copies of the guarantees on the 18th June, 2010 and by letter of the 21st June 2010, he informed P.J. O’Driscoll as to the alterations he had made in the guarantees.
Mr. O’Leary said that the alterations made by him were to reflect the true position between the parties – they did not alter what agreed. He accepted that there was nothing on the guarantees to show that they had been altered by him on the 6th October, 2008.
Mr. O’Leary then dealt with a number of other issues in relation to one of the allegations made by the defendants to the effect that the guarantee they signed contained a clause in the form of clause 2.4, that is, a non recourse clause. Such a clause was included in the original draft guarantees sent by Mr. O’Leary to Ms. Crowley. That is a separate issue which I am not dealing with at this point, but I will return to it later. Suffice it to say that it is accepted on behalf of the defendants that the guarantees received by the Bank were unlimited guarantees. Mr. O’Leary’s evidence overall was to the effect that what he did had been done by him in good faith to reflect the correspondence that had passed between the parties. It had been his understanding that the defendants had signed as guarantors and not in any capacity on behalf of M.D.Z. Limited. He added that if he had any doubt about what he was doing, he would not have done it. He accepted that what he had done was not the optimum practice, but as he understood the position, there was no advantage to him or Anglo in making the alterations.
It was put to him that the document as altered was a “false instrument”, a falsification and a forgery. He resented that characterisation and said that he had simply altered the descriptions of the parties. He accepted that he should have sent the documents back for re-execution. Differences in the page intended for signature by the guarantor and the page for signature by the borrower were acknowledged by Mr. O’Leary and he pointed out that the defendants had obtained ample independent legal advice before signing. Finally he noted that there had never been any communication from anyone to the effect that the guarantors had executed in any capacity other than as guarantors. Accordingly, the documents constituted a sufficient note or memorandum for the purpose of the Statute of Frauds.
I now want to consider the evidence of Mr. Kiernan and Mr. Collins in relation to the execution of the guarantees. Mr. Kiernan described signing various documents from time to time in connection to Glanerought. By and large, this was done in either Mr. Fitzgerald’s office or in the offices of Barry M. O’Meara. He signed facility letters, guarantees and conveyancing documentation. Mr. Kiernan was advised to get independent legal advice on the guarantee and did so. He had an issue as to whether or not he understood it to be a non recourse guarantee but other than that he said that he had brought the document to Barry M. O’Meara’s offices and signed it there. He accepted also that he had signed the facility letter of the 20th August, 2008 prior to this. He was not sure of the date when he signed the guarantee. He could not say that he read the guarantee before signing it. When he signed he did so at the point he was directed to sign it by Ms. Crowley. He had no recollection of the fact that there were two pages for completion by the borrower. He said he signed it on the basis that it was a non recourse guarantee. He told Ms. Crowley he was prepared to sign on that basis. He confirmed that he had not authorised anyone to alter the document.
In cross examination, he confirmed that he was a business man and he described the nature of his business. He fully understood what a guarantee was. He was asked about documents that he signed in the course of his business from time to time. He said that he did not always read everything. He was familiar with the format of the facility letters and knew that there was a requirement in relation to security that there should be an unlimited guarantee. He could not say that he actually read the 20th August, 2008, facility letter. He was aware, however, that the Bank required a further guarantee – he was informed of this by Mr. Fitzgerald or Ms. Crowley. Mr. Kiernan was cross examined in detail about the signing of the guarantee. He had very little recollection of the details as to the date, who was present, and whether he examined the documents or not. He signed the document but could not recollect doing so. On examining the page he signed headed “For Completion by the Borrower” he said he must have known he was signing that page as guarantor. He could not recall signing the previous guarantee in 2005. He was not aware of the fact that he had an unlimited liability as a guarantor.
There was some difference of recollection between the affidavit sworn by Mr. Kiernan in the summary judgment application and his evidence in court. However, it is clear that he knew sometime after the 20th August, and before the 25th August that he was going to have to furnish a guarantee. He was then advised to get independent legal advice by Ms. Crowley on the guarantee and a copy was sent to Mr. Brian O’Shea, his personal solicitor. He met Mr. O’Shea. After getting advices from him, he said he left with the original guarantee. He then brought it to Ms. Crowley’s office within a few days and then he signed it. I should say at this point that it seems to me having regard to the evidence of Mr. Kiernan that he is almost certainly mistaken in his evidence to the effect that he signed the guarantee a few days after meeting Mr. O’Shea. Nevertheless, I do not think that this is an issue of major importance.
Mr. Kiernan then described the guarantee. It was on yellow paper with a border of red lines. He said he vividly remembered this. All of the pages of the guarantee document were lined in this way. Much cross examination explored this issue. In essence the effect of Mr. Kiernan’s evidence is to the effect that the guarantee he signed is not the guarantee before the court. What comes across from the lengthy cross examination of Mr. Kiernan in relation to the signing of the guarantee is that he denies signing an unlimited guarantee; he maintains that he signed a non recourse guarantee; he did not read the guarantee before signing it and if, in fact, the guarantee before the court was unlimited, he said that the Bank must have taken the page he signed and put it into a different document that is an unlimited guarantee. He stated this in evidence, despite the very clear statement at an early stage of the hearing by counsel on his behalf to the effect that the document being sued on by the Bank was in the form in which it had been received by the Bank. One thing from the evidence that is abundantly clear, notwithstanding the general lack of recollection on the part of Mr Kiernan as to the circumstances surrounding the signing of the guarantee, is that he was clearly signing a guarantee qua guarantor and not in any other capacity. He certainly was not signing the guarantee in some capacity on behalf of M.D.Z. Limited.
I now want to turn to the evidence of Mr. Collins on this issue. Mr. Collins described signing the facility letter of the 20th August, 2008, in Mr. Fitzgerald’s office. He was unhappy about doing so as the project was finished. He was told by Mr. Fitzgerald that there was a guarantee to be signed and he went to Ms. Crowley’s office. She told him to get independent legal advice. He took the guarantee away for that purpose. He went to his own solicitor who explained that it was a non recourse guarantee but in any event, his solicitor advised him that he should not sign the guarantee. He had already signed a guarantee in 2005.
Subsequently, Mr. Collins had a meeting with Mr. McCabe from the Bank. He discussed the issue of the guarantee with him. He was advised by Mr. McCabe that the guarantee had to be signed in order to have monies drawn down as provided for in the facility letter. In the meantime, Mr. Kiernan told him he had signed the guarantee. Mr. Collins said that when he signed, Ms. Crowley produced the guarantee for him to sign. He had very little conversation with her and understood he was signing the same guarantee as the one he took to his own solicitors. He also said that he did not authorise anyone to alter the document. He confirmed that the meeting with the bank took place on the 21st September, and he signed a few days later.
In the course of cross examination, Mr. Collins accepted that he was a business man and that he understood the nature of bank facilities, security and guarantees. When he spoke to Mr. McCabe from Anglo and Mr. Whelan, his solicitor, he questioned the need for the additional guarantee given the earlier guarantee. He described signing the facility letter and said that he understood the gist of it. Having spoke to Ms. Crowley, his understanding was that the 2008 guarantee replaced the 2005 guarantee, although he accepted that that was not, in fact, the case. His evidence was similar to Mr. Kiernan in relation to his description of the type of paper on which the guarantee was prepared.
Mr. Collins then described his meeting with Mr. Whelan and ultimately he signed the guarantee some three weeks after having taken advices from his own solicitor. He accepted that the guarantee he signed was unlimited and was consistent with what he had signed up for in the facility letter. He was asked about Ms. Crowley’s responses to interrogatories which were delivered to her in the course of these proceedings. He said that at the time of signing, there was not much discussion. He could not recall exactly what Ms. Crowley had said – she could have advised that he had to execute an unlimited guarantee, but he could not recall that. He was not advised that there was a change to the document, that is, from non recourse to unlimited, but he knew he was meant to sign an unlimited guarantee. He understood that he was signing as guarantor.
In relation to the alterations made by Mr. O’Leary, Mr. Collins said that his concern was not so much the amendments made by Mr. O’Leary, so much as the fact that it was an unlimited as opposed to a non recourse guarantee. This contradicted what he had said earlier on affidavit in the course of these proceedings.
There are a number of observations to be made on the evidence of Mr. O’Leary, Mr. Kiernan and Mr. Collins. I also take note of the interrogatories addressed to Ms. Crowley and her responses to those interrogatories. There is no doubt that the guarantees originally sent out by Mr. O’Leary were non recourse guarantees. Mr. O’Leary on realising his error sent out unlimited guarantees to Ms. Crowley. I am satisfied that both Mr. Collins and Mr. Kiernan got independent legal advice in respect of the guarantees. I am also satisfied that they were at all times aware from the date of signing the facility letter that an unlimited guarantee was required. If not, there would have been little point in the Bank looking for a fresh guarantee and equally little point in Ms. Crowley sending them away to get independent legal advice. I have no doubt that when they each went to Ms. Crowley, they understood they were signing the guarantees as guarantors and not in any other capacity. I will return later to their understanding of the nature of the guarantee. It is interesting in this regard to contrast what was said in evidence by Mr. Collins and what he swore on affidavit as to the capacity in which he signed the guarantee. In his affidavit evidence he said that he signed the guarantee on behalf of the company. Mr. Kiernan said the same on affidavit. I am completely satisfied that Mr. Collins and Mr. Kiernan signed the guarantees in their capacity as guarantors and not in any capacity on behalf of M.D.Z. Limited. I am driven to that conclusion having regard to all of the evidence including the sworn interrogatories of Ms Crowley
I now want to turn to the submissions in relation to the alterations on the guarantees made by Mr. O’Leary. I also think I can conveniently deal with the issue of the evidence of Mr. Kiernan and Mr. Collins to the effect that they signed a non recourse guarantee as opposed to an unlimited guarantee at this point. There is no issue but that Mr. O’Leary sent out non recourse guarantees to Ms. Crowley on the 21st August, 2008. He realised his error within a few days and then sent out the correct versions. In the meantime, Mr. Kiernan and Mr. Collins had both taken independent legal advice on the non recourse guarantees. I think it would be unlikely that such advices given without the solicitors concerned having had regard to the earlier guarantee and the facility letter. Precisely what advice was given by Mr. O’Shea and Mr. Whelan respectively, to their clients is not possible to say as neither of these gentlemen was called to give evidence by the defendants. It seems to me that it is likely and I find as a fact that the guarantees were signed on or about the 29th/30th September, 2008. I have come to this conclusion for a number of reasons:
1. The guarantees were dated the 30th September, 2008.
2. They were sent to the Bank by Ms. Crowley under cover of letter of the 29th September, 2008.
3. Mr. Collins in cross examination put the date of signing after his meeting with Mr. McCabe in Anglo Irish Bank. That meeting took place on the 22nd September, 2008. Clearly the guarantees could not have been signed prior to that meeting.
Following the receipt of the proposed guarantees from Mr. O’Leary, Ms. Crowley sought in correspondence to exclude from the guarantees, the possibility of recourse to the defendants private residences. The position of Ms. Crowley is somewhat ambiguous in that she clearly was the solicitor for Mr. Fitzgerald and she acted for M.D.Z. Limited. There appears to be no doubt that she also acted as the solicitors for Mr. Kiernan and Mr. Collins. The only time that she did not do so was when she sent the defendants to their own solicitors for the purpose of getting independent legal advice in relation to the 2008 guarantee. Other than that, I am satisfied that she was acting for and on behalf of the defendants in relation to matters concerning the Glanerought development. Although it was denied in evidence that Mr. Collins or indeed Mr. Kiernan authorised her to make a request to Mr. O’Leary to exclude the defendants private residence from the scope of the guarantee, I am satisfied that she did so on the basis of her instructions from the defendants. It is clear from the evidence that Mr. Collins in particular was very concerned at the request to give a fresh guarantee. He not only spoke to his own solicitor about this, but went so far as to arrange a meeting with the bank, something he had never done before. The meeting was about his reluctance to enter into an unlimited guarantee.
Those are the background circumstances in relation to the allegation made by the defendants that they executed a non recourse guarantee and this was subsequently changed to an unlimited guarantee in the form in which it was presented to the court. I should mention that the pleadings delivered herein by the defendants could not have been more explicit. They accused the Bank of having taken the signature page of the non recourse guarantee and inserted it into an unlimited guarantee. Mr. Kiernan maintained this approach in his evidence to a significant extent, Mr. Collins less so. Surprisingly, this point was never made in the summary judgment affidavit sworn by Mr. Collins. The same is true of Mr. Kiernan’s affidavit.
How then does one come to a conclusion on this issue? The first point is that Mr. Hussey on behalf of the defendants expressly and unequivocally at an early part of the hearing, long before his clients gave evidence, withdrew any suggestion that the Bank had done any such thing. To that extent it is somewhat surprising that in their evidence, Mr. Collins and Mr. Kiernan made this point. It is clear from the evidence that both defendants signed the guarantees in Ms. Crowley’s presence. She then forwarded them directly to the Bank. If the guarantees were not altered by the Bank in this way, when received by the Bank, one as to ask how could that have occurred? Was it done by Ms. Crowley, someone in her office, the postman or courier who delivered the executed guarantees? These questions have to be considered in the light of the evidence of Mr. Kiernan and Mr. Collins. Mr. Kiernan was a witness who prevaricated, was hesitant and had poor recollection about almost every detail relating the signing of the guarantee, yet he “vividly” recollected the physical appearance of the guarantee. Mr. Collins was not so dogmatic on this issue.
Aside from the evidence of Mr. Kiernan and Mr. Collins, I also had the benefit of the replies to interrogatories sworn by Ms. Crowley. She made it clear that on the day of execution of the guarantees, the defendants knew that they were signing unlimited guarantees and did so sign. It is surprising that given that the defendants have contradicted those sworn replies, they chose not to call Ms. Crowley in these proceedings. Finally, one has to bear in mind the fact that Mr. Collins arranged a meeting with the Bank prior to execution in regard to his concerns about signing the guarantee. He could not have had and would not have had those concerns if the guarantee being signed was a non recourse guarantee. Accordingly, taking all of the circumstances and evidence on this issue into account, I find as a fact that each of the defendants well knew when they signed the guarantees that they were signing unlimited guarantees.
In fairness to Mr. Collins towards the end of his cross examination by Mr. McCann S.C. on behalf of Anglo, he conceded that the allegation that had been made about the substitution or insertion of the signature page from a non-recourse guarantee into an unlimited guarantee, arose because he and Mr. Kiernan believed or assumed that that had happened and ultimately, he accepted that there was no foundation in fact for making that suggestion. Nevertheless, this was an issue that was persisted in doggedly and took up a considerable period of time in the course of the hearing before me when, in truth, there were no grounds to support it.
I want to turn to the submissions which are central to the issue as to the effect of Mr. O’Leary’s admitted alterations on the guarantees. The essential point made in the written submissions on this issue is succinct. There is an argument that the signature of the defendants as “Borrower” is not sufficient to fulfil the requirements of the statute of frauds. That issue need not trouble the court any further given that Mr. Hussey during the course of the oral submissions conceded that there was a series of documents which constituted a sufficient note or memorandum. He submitted that it can be concluded that the alterations and the substitution of altered pages amount to a forgery and the Bank may not rely on the documents to recover against the defendants.
Further by reason of the principle of ex turpi causa non oritur actio “the Bank may not proceed with the claim based on previous letters of offer on foot of earlier guarantees signed by the parties”.
Given the fact that the question of the substitution of pages is now out of the equation, one is left with the argument that the alterations by Mr. O’Leary amount to a forgery and that therefore the Bank cannot rely on the 2008 documents to recover against the defendants either on foot of the 2008 or 2005 guarantees.
The Bank’s contention is that the alterations of Mr. O’Leary did not alter the business effect of the guarantees. They were no more than was intended by the parties. It was submitted that all that was changed was the description of the party signing and that this was not a material alteration. In order to avoid the contract, an alteration had to be material. In making the submission, reliance was placed on the decision in Raiffeinsen Zentralbank v. Crossseas Shipping Limited [20001] W.l.R. 1135, a decision of the Court of Appeal. There was misdescription by a signatory and this was put right by Mr. O’Leary. Reference was also made to Norton on Deeds 2nd Ed. pp. 46 to 47 where it was stated:-
“After a Deed had been executed, one of the parties drew his pen through his own and another party’s signatures; it was admitted that the orator was made wilfully, and under the impression that it might influence claims to be dehors the Deed, but no fraud was intended; the Deed contained no ground or covenant by the parties whose signatures were thus erased, and imposed no liability on them; they were simply covenantees. It was held that the erasure was immaterial, and did not avoid the Deed: Cauldwell v. Parker [1869] I.R. 3 Eq. 519; disapproved in Suffell v. Bank of England, 9 Q.B. D. 555, at pp. 565, 571 and 572; . . .
After execution of a mortgage, the name of a mortgagee was altered from “William” to “Edward Thomas”, those being the real Christian names of the person intended, “William” having been inserted in the Deed by inadvertence. Held, an immaterial alteration: Re. Howgate and Osborn’s Contract, [1902] 1 Ch. 451; 71 L.J. Ch. 279.”
Reliance was placed on Chitty on Contracts to support the argument that there was nothing to suggest that there was anything illegal or immoral behind the alterations. In essence, Mr. O’Leary made an alteration which the defendants in their evidence accepted reflected the true nature of the transactions. Accordingly it was contended on behalf of the Bank that the maxim ex turpi causa non oritur actio did not apply.
Mr. Hussey made the point that the alterations made by Mr. O’Leary were on the page that gave life to the document, that is, the execution page. In the absence of execution there was no document that could be enforced. He pointed out that the page actually competed was entirely superfluous. There was no need for M.D.Z. Limited to complete any part of the guarantee. He submitted that in altering that page Mr. O’Leary was purporting to bring the document to life. When he did that he intended that this was it enable the document to be used to enforce rights under the guarantee. Mr. Hussey also referred to Norton on Deeds and made the point that alterations are presumed to have been made prior to execution. He added that there was no consent to the alterations; there was no request to have the guarantees re-executed and there was no indication that alterations were made post execution.
Mr. Hussey then proceeded to examine the provisions of the Criminal Justice (Theft and Fraud) Act 2001. I have already set out the relevant provisions above. Mr. Hussey contended that the guarantees as executed were false instruments and that that was the way in which the guarantee was intended to used in these proceedings, namely, to induce any person reading the guarantee to conclude that it is genuine. He referred to s. 26 of the Act to argue that the Bank knowing the guarantee to be a false instrument was inducing the court to accept it as genuine. This was being done to prejudice the defendants. He contended that these acts of turpitude precluded the Bank from succeeding in its claim.
I now want to look at some of the authorities referred to by the parties in the course of their submissions. I have already referred to a passage from Norton on Deeds relied on by Anglo. Mr. Hussey on behalf of the defendants also referred to a number of passages from Norton on Deeds and in particular to the principle set out at p. 32 to the effect that:
“Alterations and interlineations in a Deed are presumed, in the absence of evidence to the contrary, to have been made prior to execution.”
He also relied on a passage at p. 38 which stated:
“If a material alteration by rasure, interlineations or otherwise, be made, after execution, in a Deed by, or with the consent of, any party thereto, he cannot as plaintiff enforce any obligation contained in it against any party who did not consent to such alteration.”
A further passage from Norton on Deeds to which I was referred states:-
“An alteration which, if made before execution, would have effected the position, rights or obligations of any person claiming under the Deed, is material; possibly other alterations may be material.”
It was Mr. McCann’s contention in relation to this paragraph of Norton on Deeds that the alteration did not affect the position, rights or obligations of any person claiming under the Deed. I mentioned earlier the decision in the case of Raiffeisen. In that case part of the guarantee had been left blank at the time of execution, namely the name, address, telex and fax number of the first named defendant who was the agent for service of a Mr. Shah, but was inserted later by an employee of the Bank without the knowledge or consent of Mr. Shah. Creswell J. in the course of his judgment considered the issue of materiality and on appeal Potter L.J. quoted from the judgment of Creswell J. at p. 1139:
“Turning to the question to the question of materiality, he referred also to the passage where Jessell M.R. stated, 9 Q.B.D. 555, 563:
Before one considers the question as to whether the alteration is an alteration affecting the contract, one must know what the instrument is, what the alteration is and what the general effect is . . .”
6. The judge then pointed out and emphasised the fact that the instant contract was a contract of guarantee, the central obligations of which were contained in clause 2 (the Guarantee Clause) and clause 3 (the Indemnity Clause). The remainder, save for clause 37, went to the nature, extent and validity of those central obligations. He then referred to s. 64 of the Bills of Exchange Act 1882, relating to avoidance of a bill by reason of material alteration and in particular:
“any alteration of the date, the sum payable, the time of payment, the place of payment and, where a bill has been accepted generally, the addition of a place of payment without the acceptors consent.”
After observing that the court was here concerned not with a negotiable instrument, but a guarantee, the judge then referred to three particular authorities upon the touchstone of materiality.”
Potter L.J. then referred to those three authorities, namely, Gardiner v. Walsh [1855] 5 E. & B. 83, 89 as adopted by Scrutiny L.J. in Koch v. Dicks [1933] 1 .B. 307 at 320 and thirdly to Suffell v. Bank of England 9 Q.B.D. 555, 568. Potter L.J. went on to say at p. 114 as follows:-
“Thus, the court in Suffell v. Bank of England appears to have had little doubt, that in the ordinary way, the appropriate test of materiality in the case of a contract or ordinary commercial instrument is whether or not the alteration complained of altered the contractual obligations of the parties in some particular.”
I was also referred to a further passage at p. 1146 in which it was stated:
“In the course of argument, we have been cited a large number of cases in which the role in Piggott’s case has been invoked. In general, it seems clear that the touchstone of materiality has been whether or not there has been some alteration in the legal effect of the contract or instrument concerned simply in the sense of some alteration in the rights and obligations of the parties. Those cases in which an alteration or obliteration have been held to be immaterial have been cases of two kinds. First, those where it either was or could have been said that the alterations either rendered express, or had no effect upon, in the sense of adding nothing to, what the law would otherwise provide or imply . . . Second, there is the class of cases, with which we are not here concerned, where the alteration corrects a “mere misdescription” which can be cured by parole evidence that a person or entity referred to has in fact been misdescribed and that the alteration merely corrects the error in description in accordance with the original intention . . .”
I was also referred to Chitty on Contracts, 29th Ed. 16-160 in respect of the maxim ex turpi causa non oritur actio. On the topic of tainting it is stated:
“The maxim ex turpi causa non oritur actio, is also applied to the case of an apparently innocent contract which is nevertheless vitiated by the illegality by another contract to which it is merely collateral – the illegality of the latter tainting the former. Thus, in Spector v. Ageda the plaintiff loaned money to the defendant to repay a loan which had been made by a third party to the defendant and which was an illegal money lending transaction. The plaintiff knew that her loan was to be used to pay of the illegal loan and the issue which squarely faced the court was, Megarry J. stated, “whether a loan knowingly made in order to discharge an existing loan, it was wholly or partially illegal was itself tainted with illegality”. He answered the question in the affirmative; the second transaction was tainted by the illegality of the first and was accordingly unenforceable.”
That passage was referred to by reason of the contention on the part of the defendant that the illegality contended for in relation to the 2008 guarantee tainted the enforceability of the 2005.
There are limits to the maxim as was pointed out in para. 16.162 of Chitty on Contracts where is it stated “it is not sufficient, in order to bring the claimant within the maxim, that he should merely be obliged to give evidence to a an illegal contract as part of his case, as for instance where the illegal purpose has not been carried out; for the rule normally applies only where the action is found upon the illegal contract, and is brought to enforce it”.
It is part of the defendants’ case that the Bank cannot recover on foot of the 2005 guarantee if the 2008 guarantee is found to be void by reason of the alterations and further that the 2005 guarantee is tainted by the illegality, that is, the alleged forgery/use of a false instrument. On the other hand, the Bank argued that it was not necessary to rely on the alterations made as there was in any event a sufficient note of memo of the guarantee. In any event, the Bank maintained that the alterations were minor in nature and the defendants have accepted that they reflect the nature of the transaction.
It was pointed out on behalf of the Bank that the passage from Raiffeinsen at p. 1146 makes clear that the test of materiality is whether or not there has been an alteration in the legal effect of the document in relation to the rights and obligations of the parties. Thus, it is clear that an alteration of a guarantee which had the effect of altering the amount of the guarantors’ obligation, for example, by changing a figure of €50,000 to €90,000 would be a material alteration.
I was also referred to the decision in Holman v. Johnson (1775) 1 COWP 342, which could be described as the fons et origo of the maxim. Lord Mansfield in the case stated at p. 1121,
“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sound at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa non oritur actio, or the transgression of a positive law of his country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides the defendant was to bring his action against the plaintiff, the matter would then have the advantage of it; for where both are equally in fault potior est conditio defendentis.”
I was also referred to Bowmakers Limited v. Barnet Instruments Limited [1945] 1 K.B. 65. That case concerned a contract unlawful by virtue of the Defence (General) Regulations 1939. Du Parcq L.J. having referred to the facts and arguments noted that there was an infringement of the order, that neither party knew of the order and that accordingly, “their error was involuntary”. The issue in the case turned on whether the defendants were entitled to retain goods which they had acquired on foot of the illegal contract. They had contended that the plaintiffs could not recover the goods because they could not sue on the illegal contract. Du Parcq L.J. reiterated the general principle in the course of his judgment in a passage relied on by Mr. Hussey at p. 70 where it was stated:
“Prima facie, a man is entitled to his own property and it is not a general principle of our law (as was suggested) that when one mans goods have got into another’s possession in consequence of some unlawful dealing between them, the true owner can never be allowed to recover those goods by an action. The necessity of such a principle to the interest and advancement of public policy is certainly not obvious. The suggestion that it exists is not in our opinion supported by authority. It would, indeed, be astonishing if (to take one instance) a person in the position of the defendant in Pierse v. Brooks supposing that she had converted the plaintiff’s brougham to her own use, were to be permitted, in the supposed interests of public policy, to keep it or the proceeds of its sale for her own benefit. The principle, which is, in truth, followed by the court is that stated by Lord Mansfield, that no claim founded on an illegal will be enforced, and for this purpose the words “illegal contract” must now be understood in the wide sense which we have already indicated and no technical meaning must be ascribed to the words “founded on an illegal contract”. The form of the pleadings is by no means conclusive . . .”
Accordingly in that case the plaintiff was entitled to recover the goods concerned.
I was then referred to the decision in the case of Stone and Rolls Limited (In Liquidation) v. Moore Stephens [2009] 1 AC 1391.
Mr. Hussey placed particular reliance on para. 16 of the judgment of Rimer L.J. at paras. 12 to 16. Rimer L.J. had quoted from the decision of Lord Browne-Wilkinson in his judgment in Tinsley v. Milligan [1994] 1 AC 340 at p. 376 where it was stated:-
“In my judgment the time has come to decide clearly that the rule is the same whether a plaintiff founds himself on a legal or equitable title: he is entitled to recover if he is not forced to plead or rely on the illegality, even if it emerges that the title on which he relied was acquired in the course of carrying through an illegal transaction.”
Rimer L. J. then continued as follows:-
“That statement of principle was expressed in the context of the facts of Tinsley v. Milligan, a property dispute. But it is one I regard as applying generally and which Langley J. conveniently described as a “reliance” test. The relevant question it identifies is whether, to advance the claim, it is necessary for the claimant to plead or rely on the illegality. If it is, the Tinsley case decided that the axe fall indiscriminately and the claim is barred, however good it might otherwise be. There is no discretion to permit it to succeed. The absence of any such discretion emerges from all their Lordship’s speeches. Lord Goff of Chieveley, who was in the minority with Lord Keith of Kinkel, gave the leading speech for the rejection of the “public conscience” test, with which the majority agreed. The essential difference between the minority and the majority views was whether the touchstone for the application of the ex turpi causa maxim was the reliance test favoured by the majority or the wider test favoured by the minority and regarded as applicable to the particular facts before the court. But once the maxim is engaged, it applies indiscriminately. After referring to Holman v. Johnson 1 COWP 341 and the subsequent application of Lord Mansfield, C.J.’s principle, Lord Goff said [1994] 1 AC 340, 355:-
‘It is important to observe that as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover the principle allows no room for the exercise of any discretion by the court in favour of one party or the other.’”
Reference was made by contrast by Mr. McCann to a passage from the judgment of Lord Phillips of Worth Matravers, where he stated at p. 1451 as follows:-
“In order to assist in following this lengthy opinion I propose at this stage to summarise my conclusions. (1) Under the principal of ex turpi causa the court will not assist a claimant to recover compensation for the consequences of his own illegal conduct. (2) This appeal raises the question of whether, and if so how, that principle applies to a claim by a company against those whose breach of duty has caused or permitted the company to commit fraud that has resulted in detriment to the company. (3) The answer to this question is not be found by the application of Hampshire Land or any similar principle of attribution. The essential issue is whether, in applying ex turpi causa in such circumstances, one should look behind the company at those whose interests the relevant duty is intended to protect. (4) While in principle it would be attractive to adopt such a course there are difficulties in the way of doing so to which no clear resolution has been demonstrated. (5) On the extreme facts of this case it is not necessary to attempt to resolve those difficulties. Those for whose benefit the claim is brought fall outside the scope of any duty owed by Moore Stephens. The sole person for whose benefit such duty was owed, being the sole person for whose benefit such duty was owed, being Mr Stojevic who owned and ran the company, was responsible for the fraud. (6) In these circumstances ex turpi causa provides a defence to the claim.”
Mr. McCann relying on that passage submitted that the Bank was not suing to recover a benefit arising from Mr. O’Leary’s wrongdoing. There was an underlying obligation to the Bank on foot of the original guarantee and the completion of the facility letter by the defendants. Accordingly he submitted that the “wrongdoing” did not taint the earlier guarantee or the entitlement of the Bank on foot of the defendants’ obligations.
Conclusions on the Arguments
The first question I have to consider in this case is whether the alterations made by the Bank’s solicitor, Mr. O’Leary, amounted to a material alteration. There are several points to note.
(1) The defendants were required by the facility letter of the 20th August, 2008, to enter into fresh guarantees. That facility letter referred expressly to the security held (including the 2005 guarantee) and the security required. Thus, it was always clear that the Bank intended to rely on the 2005 guarantee in addition to the 2008, guarantee. This was subsequently confirmed in writing by Mr. O’Leary.
(2) The defendants signed the facility letters.
(3) Mr. Collins had a meeting with Mr. McCabe who told him that it was a requirement of the Bank that a further unlimited guarantee be furnished for the purpose of obtaining further advances.
(4) The defendants obtained independent legal advice, albeit that was in respect of the non recourse form of the guarantee. The Bank declined a request from Ms. Crowley to exclude the private residences of the defendants from the scope of the guarantees.
(5) The defendants at the time they each executed the guarantees were aware of the fact that the guarantees were unlimited in form.
(6) The executed guarantees were returned to the Bank by Ms. Crowley under cover of letter dated the 29th September, 2008, which stated:-
“Re. Our Clients: Richard Fitzgerald and Others
Guarantee – Anglo Irish Bank to M.D.Z. Limited
Dear Sirs
Please find enclosed herewith guarantees duly signed by Denis Collins and Michael Kiernan for your attention. . . .”
(7) The defendants intended to and did in fact execute the guarantees in their capacity as guarantors and not in any other capacity. There is no evidence at all to suggest that they in fact executed the guarantees in any capacity on behalf of M.D.Z. limited.
(8) That being so, I am satisfied that the alterations made by Mr. O’Leary reflected the intention of the parties, were minor in nature and could not be described as material. The alterations did not affect the nature of the rights and obligations of the defendants. The position would be otherwise if there was evidence to the effect that the alterations changed the nature of the rights and obligations of the defendants.
There has been no explanation at all as to why the defendants signed the page headed “For Completion by the Borrower” and not the page to be completed by the guarantor but as I accept that they intended to and did execute the document as guarantors, I have come to the conclusion that the alterations were not material. The defendants executed what they knew to be guarantees in their capacity as guarantors and in no other capacity. That was their understanding and intention.
I now have to consider the effect of the provisions of the Criminal Justice (Theft and Fraud) Act 2001. Mr. O’Leary has been accused in no uncertain terms of forgery and the Bank has been accused of using false instruments. These are serious offences carrying a maximum sentence of imprisonment for a term not exceeding ten years or a fine, which is unlimited. I am prepared to accept that the alterations made by Mr. O’Leary come within the terms of s. 30 of the Act for the purpose of considering this issue. I would hesitate to say that what occurred comes within all of the headings contended for by Mr. Hussey in respect of s. 30(1) of the Act and my hesitation is coloured by the fact that the alterations were obvious – the word “Borrower” was crossed out and “Guarantor” was written in and the name M.D.Z. Limited was crossed out and the name of each defendant was written in, in the appropriate guarantee. My view is also coloured by the fact, as I have found, that the defendants intended to execute the document in their capacity as guarantors. Nevertheless the guarantees were altered post execution and no consent was obtained by Mr. O’Leary for the alterations and the guarantees were not re-executed.
I am satisfied however that to constitute the offences created by s. 25 and by s. 26 it is necessary that the person making the alteration should do so with the intention specified in those sections, namely inducing “another person to accept it as genuine . . . and by reason of so accepting it, to do some act, or to make some omission to the prejudice of that person or any other person”. Section 26 is in similar terms.
Section 31 of the Act defines the words “prejudice” and “induce”.
I think it would be useful to look at something that was said in relation to the equivalent provisions of the UK statute, the Forgery and Counterfeiting Act 1981, which are in identical terms to the relevant provisions in the 2001 Act. In Archbold, Criminal Pleading Evidence and Practice 2005, the concept and rationale behind the English legislation was described as follows:-
“The concept of forgery and the rationale of the offence were summarised in paras. 41 to 43 of the Law Commission Report:
‘By the middle of the 19th century it was established that for the purpose of the law of forgery that fact that determined whether a document was false was not that it contained lies, but that it told a lie about itself. It was in R. v. Windsor (1865) 10 Cox 118, 123 that Blackburn J. said: ‘forgery is the false making of an instrument purporting to be that which it is not, it is not the making of an instrument which purports to be what it really is, but which contains false statements. Telling a lie does not become a forgery because it is reduced into writing’. This test was applied in the court of appeal in R. v. Dodge and Harris [1972] 1 Q.B 416. . . . as we have said . . . the primary reason for retaining a law of forgery is to penalise the making of documents which because of the spurious air of authenticity given to them likely to lead to their acceptance as true statements of the facts related in them. We do not think that there is any need for the extension of forgery to cover falsehoods that are reduced to writing. . . . the essential feature of a false instrument in relation to forgery is that it is an instrument which ‘tells a lie about itself’ in the sense that it purports to be made by a person who did not make it (or alter it by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was not made or altered.”
Having considered the provisions of the 2001 Act, I am satisfied that there is no evidence of the requisite intention on the part of Mr. O’Leary or the Bank. If one considers the meaning of prejudice as provided for in the Act, neither of the defendants could be said to have lost anything by the alterations, equally it could not be said that the Bank gained an advantage as a result of the alterations. The documents already in existence prior to the execution of the guarantee, included the guarantee of 2005, the facility letter signed by the defendants on the 20th August, 2008, and the letter of their solicitor returning the guarantees, all bear testimony to the existing obligation of the defendants and the Bank’s entitlement to enforce that obligation. The defendants had an obligation to pay the sums due in any event. The alterations made in this case are such that it can safely be said that the guarantees are not instruments which tell a lie about themselves. On the contrary, it could be said that the alterations made by Mr. O’Leary were designed to ensure that the guarantees were altered to tell the truth about themselves. The defendants have failed to establish that Mr. O’Leary acted in breach of the criminal law in making the alterations he did.
It cannot be gainsaid that Mr. O’Leary was unwise, to say the least, to have made the alterations to the guarantees. I presume that the Bank would not have advanced further facilities to M.D.Z. Limited until the draft security report was furnished by Mr. O’Leary to the Bank. In those circumstances, it was open to Mr. O’Leary to have the guarantees re-executed. No doubt there were time pressures on all concerned, but it would have been relatively straightforward to do this. Having said that, to characterise the conduct of Mr. O’Leary as amounting to the commission of a serious criminal offence is, to my mind, unfair. His conduct is far removed from constituting the commission of such a serious criminal offence.
It is in those circumstances that I am also satisfied that there was no wrongdoing on the part of Anglo.
Accordingly, given that I am satisfied that there was no wrongdoing by Mr. O’Leary or on the part of the Bank in relying in the guarantees as altered, the maxim does not apply and does not give rise to a defence to these proceedings.
The Bank and the Receiver’s Duty to the Defendants
The final element of this case concerns of role of the receiver, the allegation that he was negligent in the exercise of his functions and the submission that Anglo was vicariously liable for the alleged negligence of the receiver. The receiver, Michael Cotter, was appointed pursuant to the provisions of the mortgage deed of the 1st April, 2005, in respect of the lands at Glanerought. Clause 8.3 of the mortgage deed provided inter alia that:-
“Such receiver shall be agent of the borrower insofar as is allowed by law and the borrower shall be solely responsible for his acts and defaults and/or his remuneration.”
The case made by the defendant’s against the receiver and against Anglo in this respect was, inter alia, that they owed a duty of the defendants not to hastily sell the units at a knockdown price, not to conduct themselves in such a way as to unfairly prejudice or damage the viability of the development or the credibility of the property on the marketplace and not to do anything which would render the property unmarketable and unmortgagable. It was contended that the receiver and by implication Anglo were in breach of this duty in a number of ways.
I think some of these can be disposed of very briefly. Complaint was made in the course of the proceedings as to the removal of the existing selling agent and solicitor having carriage of sale. Criticism was made of the appointment of a selling agent who was “less familiar with the Kenmare market”. Evidence had been given by Mr. Daly, Sherry Fitzgerald Daly, on behalf of the defendants, to the effect that a Kenmare based auctioneer should have been appointed. The evidence of Mr. Tyrell of that firm indicated that the firm deals with property in the Munster region namely covering the Counties of Cork and Kerry. Mr. Tyrell replaced Mr. Daly of Sherry Fitzgerald Daly, a firm of auctioneers based in Kenmare. Mr. Daly had been involved in the sale of the properties on the Glanerought development between January 2006 and 2009.I have to say that there is nothing in the evidence before me to support the contention that the appointment by the receiver of the firm of Cohalan Downing, a Cork city based firm was in any way inappropriate.
It was also pleaded that the replacement of the existing solicitor was unsatisfactory and that the title which was furnished was unmarketable and unmortgageable. In respect of these issues I have to say that there was little or no appropriate evidence to support these contentions. The only witnesses who gave evidence in this regard were the defendants themselves and Mr. Daly. No witness capable of giving appropriate expert witness was called on behalf of the defendants to establish that the receiver furnished a title which was unmarketable and unmortgagable. Mr. Daly purported to give evidence to the effect that the title offered was unmarketable and ummortgageable, but he is clearly not someone capable of giving expert evidence on the issue of title. Mr. Daly did raise a number of practical issues which would be required to be dealt with before the sale could be completed, for example, issues in relation to compliance with planning permission, the necessity for home bond cover or similar insurance to name but two matters. These are all matters that can be dealt with in the run up to the closing of a sale and are not, strictly speaking, title matters. In any event, there is simply no evidence before me to the effect that the receiver furnished a title which was unmarketable and/or unmortgageable. Finally, I know of no basis upon which it could be suggested that the receiver was not entitled to appoint his own solicitor for the sale of the properties comprised in the Glanerought development.
Other Issues Relating to the Role of the Receiver
Following his appointment, the receiver, Michael Cotter, arranged a meeting which took place on the 31st August, 2009, with Mr. Fitzgerald, Mr. Kiernan and Mr. Collins. The receiver outlined his strategy for the receivership. A memorandum of the meeting noted that the receiver did not intend to engage in a fire sale of the assets. The difficulty in valuing the properties involved was also noted. It was pointed out that a long term view would be required in assessing the value of the properties. As set out above, the receiver appointed Mr. Tyrell of Cohalan and Downing as selling agents. They were to provide an opinion on values and to advise on marketing and the sale of the properties concerned. By letter of the 30th September, 2009, Cohalan Downing furnished its advices to the receiver. No issue has been taken with the general strategy set out in that letter from Mr. Tyrell
Mr. Daly was the principal witness on behalf to the defendants in relation to the actions of the receiver and those of Mr. Tyrell. A significant contention on the part of Mr. Daly was that the value placed on the various properties by Mr. Tyrell in his letter of the 30th September, 2009, was too low. Mr. Tyrell had furnished a suggested price range in respect of each of the property types on the estate. Mr. Daly was strongly of the view that those values were simply too low. Mr. Daly accepted that the prices at which the properties were being sold prior to the appointment of the receiver were too high. He said he had tried to obtain instructions to offer the properties at reduced prices when he was still acting as auctioneer in respect of the properties, but he was unable to get such instructions. He recognised the need to reduce prices, but his view was that any reduction should have been less than that proposed by Mr. Tyrell. As an example Mr. Tyrell valued a property, a three bed roomed detached house at €165,000, but Mr. Daly placed a value of €190,000 on the same property.
I heard lengthy evidence from Mr. Daly, Mr. Tyrell and from Ms. Margaret Kelleher, an auctioneer of some twenty years experience, a partner in Lisneys, based in Cork. She gave evidence on behalf of Anglo and the receiver. The tenor of her evidence was that the prices at which the properties were valued by Mr. Tyrell were fair and reasonable. Having regard to the evidence that I have heard on this issue, I have come to the conclusion on the evidence before me that the prices at which Mr. Tyrell proposed to sell the various properties were fair and reasonable.
Another significant issue surrounded the marketing of the properties. As I said, Mr. Tyrell had outlined his strategy in general terms in the letter of the 30th September, 2009. Essentially, there was to be an open day following a marketing strategy. As part of his strategy Mr. Tyrell spoke to a journalist with the Irish Examiner, Tommy Barker. An article appeared in the Irish Examiner on the 7th November, 2009, under the headline “Kenmare Firesale Begins”. This was the day before the first open day planned by Mr. Tyrell. It is an understatement to say that this article was viewed as unhelpful by Mr. Daly and Mr. Tyrell alike. However, Mr. Daly was very critical of the appearance of the article in the newspaper and Mr. Tyrell’s role in relation to its publication. Mr. Daly became aware of the publication of the article in advance and was concerned at the effect of the article on other properties in Kenmare and the general area. He was so concerned that his son Senator Mark Daly contacted Mr. Aynsley, chief executive of Anglo Irish Bank, in advance of the open day. Mr. Daly said that having become aware of the article, if he had been dealing with the matter he would have tried to have the article pulled. He accepted in general terms the value of getting an article written about the forthcoming sale, but his concern was focused on the adverse effects of the headline.
I accept that no one involved in this case wanted to see the property marketed as a “firesale” but in my view this was something which cannot be laid at the door of the receiver, and in fairness, I cannot see on the evidence, how any blame can attach to Mr. Tyrell for the headline which appeared in the Irish Examiner. It must also be observed that the article did not stop potential purchasers from coming to the open day on the 8th November, 2009. The evidence established that a significant number of people turned up for the open day. To that extent it seems to me that there is no evidence to support any contention that the appearance of this article impacted adversely on the sale of the properties.
The next issued raised by Mr. Daly concerns the events that occurred on the open day and thereafter. He had a number of complaints in relation to the conduct of the open day by Mr. Tyrell and in respect of matters leading up to that day. I have already indicated that I am satisfied that there is no issue on the question of whether or not there was a marketable and or mortgageable title to various properties. However, Mr. Daly raised a number of issues that had to be resolved in relation to the properties before any sale could be completed. There was, as mentioned, an issue with Home Bond or similar insurance cover. This was a problem inherited by the receiver and one that had to be resolved by the receiver. Apparently M.D.Z. Limited had not registered a number of properties appropriately with insurers. An issue in relation to compliance with planning permission had to be resolved. The issue of BER certificates had to be dealt with and there was an issue with the management company which had been struck off and had to be reinstated. It was reinstated on the 31st October 2009, well before the open day but nonetheless, people in attendance at the open day had raised queries about the management company. The point made by Mr. Daly was that these issues should have been dealt with prior to the open day. Mr. Tyrell and Mr. Cotter in their evidence explained that the purpose of the open day was to gauge public interest in the properties. They indicated that it was never the intention that any properties would actually be sold on the open day as such. Deposits would not be taken, but details of expression of interest from potential buyers were taken on the day.
The issue in relation to Home Bond or similar insurance cover was finally resolved by March 2010. BER certificates were available for all but four of the properties by mid January and three of the properties could not be sold because they were not built in accordance with planning permission.
In an ideal world I would have thought that the matters referred to above would have been dealt with before a marketing campaign took place. This was not an ideal world. This is not a launch of a new development but an attempt to kick-start a sale of properties in a development that had been on the market since 2006. All of the matters that had to be dealt with should long since have been sorted out by those previously involved in the development. The only outstanding matter that could not have been dealt with in advance of the open day was any issue or query raised about the status, management and role of the management company. It would have been difficult to anticipate the nature of any concerns or queries in advance of the open day.
There was no evidence from the defendants as to why these various matters had not been dealt with previously. In fairness to the defendants, they described themselves as silent partners in the development and it has been clear throughout the evidence that the main moving party in relation to the development was Mr. Fitzgerald.
I accept that it was never the intention or expectation that anyone would enter into contracts to purchase any of the properties on the open day. Indeed, not all of the properties were being actively marketed on the open day. The purpose of the exercise was to gauge the level of interest. The intention originally was to market the apartments in the development first.
At the open day it appears that there were a significant number of people in attendance. Mr. Tyrell explained that if there had been a good level of interest, it might have been possible to get an increase in prices as things moved along. On the open day itself, whilst there were many people interested, there were a lot of enquiries about the status of the management company. Mr. Tyrell made inquiries with the solicitors acting on behalf of the receiver PJ. O’Driscoll, Cork, in relation to this issue. One of the other issues mentioned by Mr Daly in the course of evidence was a problem with planning in respect of the sale of holiday homes. Mr. Tyrell’s evidence was that there was no particular query raised by potential purchasers on this issue on the open day.
Subsequently by the 12th January, 2010, Mr Tyrell was satisfied that he was in a position to commence sales and by the 26th January, 2010, he had sent out a number of contracts in relation to the properties to people who had expressed an interest at the open day. By this time a letter had been received from Brian O’Kennedy and Associates Limited, Consulting Engineers, dated the 18th January, 2010, dealing with a large number of issues including the question of planning permission, BER certificates and so on.
Mr. Tyrell also explained that at the open day, he informed those who were interested in the properties that he would clarify any legal issues and get back to them subsequently. He said that he worked his way through the enquiry list in the aftermath of the open day but was unable to generate any sales by Christmas.
I mentioned earlier that Ms. Kelleher of Lisneys gave evidence on behalf of the receiver. In the course of her cross examination on behalf of the defendants she was asked as to whether outstanding issues should have been resolved before the holding of an open day. She agreed in her evidence that in an ideal world, issues of title would be sorted out before a property goes on the market. She expressed the view that what may happen in an ideal world may not always be practical. There were wider issues involved in this case. She referred to the collapse in the property market and the setting up of NAMA. She noted the legal issues that were queried related to matters raised on the open day. These had to be clarified and it was her evidence that it was reasonable for Mr. Tyrell to clarify any queries. It has to be said that although Mr. Daly was strongly critical of Mr. Tyrell in relation to what he described as “legal issues” that required to be resolved before the opening day, there was no evidence from anyone who came to the open day and had queries about matters such as planning compliance, BER certificates. As Mr. Tyrell indicated in his evidence, the main questions focused on the position of the management company.
I think it is clear from the evidence that following the open day, Mr. Tyrell contacted those who had been present and had expressed an interest in the properties and advised them that he would clarify legal issues. I have to accept his evidence, which has not been contradicted, that the legal issues centred on the status of the management company. It is quite clear that other issues had to be resolved, even if not to the forefront of potential purchasers minds on the open day, but these are the sort of issues that typically have to be resolved in the time between the signing of the contract and the closing of a sale. In other words, a number of matters would have to be dealt with before a sale was completed but it was not essential to have these matters concluded before a marketing exercise took place. As I have said previously and as was stated by Ms. Kelleher, in an ideal world one would expect these matters to be dealt with prior to the marketing of the properties.
It is interesting to note the responses made to Mr. Tyrell by some of those who attended the open day in a document headed Schedule of deposits taken. Two had concerns about the price and whether it was still too high. One had a problem obtaining finance and a few had issues about the fact that there was a management company for the estate and the fact that this could involve costs in the future.
There was one other issue raised in the course of the evidence which I have not previously dealt with and that related to the state and appearance of the Glanerought development at the time of the open day. Mr. Daly had given evidence as to what he considered to be the unsatisfactory nature of the appearance of the development. I have heard the evidence of Mr. Cotter and Mr. Tyrell in regard to this issue. I have to say that I was less than impressed by Mr. Daly’s evidence in this regard. Mr. Daly produced a photograph depicting a Christmas tree left on part of the development. Clearly that had been there for a considerable period of time and indeed must have been present during the time when Mr. Daly was the auctioneer dealing with the sale of the property. I note that Mr. Cotter was obliged, following his appointment as receiver, to let go the existing caretaker on the estate and further, that steps were taken to maintain the appearance of the estate. For these reason I reject the evidence of Mr. Daly on this point.
Submissions
Having outlined the evidence that was given in relation to these matters, I now want to consider the legal submissions made on foot of the evidence herein. I propose to consider in the first instance, the submissions made by Mr. Hussey. He referred to the duties of a receiver and placed reliance on the case of Standard Chartered Bank v. Walker [1982] 1 W.L.R. 1410 and to a passage from the judgment of Denning M.R. at p. 1415 where he stated:-
“We have had much discussion on the law. So far as mortgages are concerned the law is set out in Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] Ch 949. If a mortgagee enters into possession and realises a mortgaged property, it is his duty to use reasonable care to obtain the best possible price which the circumstances of the case permit. He owes this duty not only to himself to clear off as much of the debt as he can, but also to the mortgagor so as to reduce the balance owing as much as possible, and also to the guarantor so that he is made liable for as little as possible on the guarantee. This duty is only a particular application of the general duty of care to your neighbour which was stated by Lord Atkin in Donoghue v Stevenson [1932] AC 562, and applied in many cases since . . . The mortgagor and the guarantor are clearly in very close ‘proximity’ to those who conduct the sale. The duty of care is owing to them – if not to the general body of creditors of the mortgagor. There are several dicta to the effect that the mortgagee can choose his own time for the sale, but I do not think this means that he can sell at the worst possible time. It is at least arguable that, in choosing the time, he must exercise a reasonable degree of care.
So far as the receiver is concerned, the law is well stated by Rigby L.J. in Gosling v Gaskell [1896] 1 QB 669, a dissenting judgment which was approved by the House of Lords [1897] AC 575. The receiver is the agent of the company, not of the debenture holder, the bank. He owes a duty to use reasonable care to obtain the best possible price which the circumstances of the case permit. He owes this duty not only to the company (of which he is the agent) to clear off as much of its indebtedness to the bank as possible, but he also owes a duty to the guarantor, because the guarantor is liable only to the same extent as the company. The more the overdraft is reduced, the better for the guarantor. It may be that the receiver can choose the time of sale within a considerable margin, but he should, I think, exercise a reasonable degree of care about it. The debenture holder, the bank, is not responsible for what the receiver does except in so far as it gives him directions or interferes with his conduct of the realisation. If it does so, then it too is under a duty to use reasonable care towards the company and the guarantor.
If it should appear that the mortgagee or the receiver have not used reasonable care to realise the assets to the best advantage, then the mortgagor, the company, and the guarantor are entitled in equity to an allowance. They should be given credit for the amount which the sale should have realised if reasonable care had been used. Their indebtedness is to be reduced accordingly.”
I am satisfied that that passage encapsulates the principles of law applicable. Mr. Hussey in his submissions stated that in this case the Bank approved the appointment of the estate agent, that the Bank approved the prices recommended by the estate agent and decided that they were going to sell as mortgagees in possession. The receiver negotiated on behalf of the Bank with the purchasers. On that basis, Mr. Hussey contended that the receiver was the agent of the Bank and that therefore the Bank was responsible for his actions and insofar as he have acted negligently the Bank are responsible for that. He noted the passage in which it was said that if the mortgagee or the receiver has not used reasonable care to realise the assets to the best advantage then the mortgagor is entitled to an allowance and he contended that that is what should happen in this case. He submitted that on the basis of the evidence there were sufficient inquires made at the open day to allow for the entire sale of the estate and that as a result of being told that there were legal issues, the confidence of the public was seriously dented and that there was a lost opportunity.
A second point made by Mr. Hussey was that because the form of sale taking place was a sale by the Bank as mortgagee in possession that the receiver could only be acting as an agent of the Bank. It was further contended that if the open day turned out to be a totally lost opportunity that the loss incurred is what the receiver hoped to sell at, i.e., a total figure of €5.015 million. If one took the prices set by Mr. Daly a further €1.5 million should be added to the figures.
Mr. McCarthy S.C. on behalf of the receiver also referred to the nature of the duty owed by a receiver. He referred to a number of passages from Halsbury’s Laws of England, Vol. 77, 2010 at para. 479. I will just refer to one brief part of what was cited because it is of assistance. It is stated:-
“A receiver and manager owes the same duty in equity to the mortgagor and all subsequent encumbrancers and guarantors as the mortgagee to exercise his powers in good faith and for the purpose of obtaining repayment of the debt owing to the mortgagee. . . . A receiver exercising his power of sale also owes the same specific duties as the mortgagee. The receiver is entitled (like the mortgagee) to sell the property in the condition in which it is without awaiting or effecting any increase in value or improvement of the property. The receiver is not obliged before sale to spend money on repairs to make the property more attractive before marketing it, or to “work” an estate be refurbishing it or to apply for planning permission . . .
The duties owed by a receiver and manager do not compel him to adopt any particular course of action, such as selling the whole or part of the mortgaged property, carrying on the business of the company or exercising any other powers and discretions vested in him. The primary duty of the receiver is to be debenture holders and not to the company. The primary objective of the receivership is to enforce the security by recouping the monies which it secures from the income or assets of the company subject to the security, and when recoupment is complete to hand the remaining property back to the control of the company.”
Reference was also made to the decision in Mooreview Developments Limited and Others v. First Active Plc and Others [2009] IEHC 214 in which Clarke J. stated at para. 12.1:-
“There is no doubt but that a receiver who sells the assets of a company may be liable, both at common law and under statute (s. 316A, Companies Act 1963, as inserted by s. 172 Companies Act 1990) for failing to realise the true value of the asset concerned.”
I was also referred to the decision in Irish Oil and Cake Mills Limited and Another v. Donnelly (Unreported, High Court, Costello J. 27th March, 1983), in which he noted:-
“The receiver derives his appointment and his authority from the contract entered into between the parties. In this case, as is usual the parties agree that he is to be treated as the agent for the mortgagors, the plaintiffs herein. This provision protects the debenture holders from liability as mortgagees in possession and establishes the relationship between the receiver and the company.”
He also referred in the course of his submissions to the decision in the case of Ruby Property Company Limited and Others v. Raymond Kilty and Superquinn, (Unreported, High Court, McKechnie J. 21st January, 2003). In the course of his judgment in that case McKechnie J. helpfully summarised the law in relation to the duty and obligations of a receiver. In the course of that judgment it was also pointed out that the onus of proof is on the party asserting negligence on the part of the receiver.
Having referred to the general principles of law applicable Mr. McCarthy then referred to the facts of this case. It was pointed out that although serious allegations were made against the receiver in the course of these proceedings, not one complaint was made to Mr. Cotter until such time as there was a replying affidavit furnished in the course of the summary judgment proceedings in May 2010. Mr. Kiernan and Mr. Collins never made any contact prior to this with the receiver to say that there was anything wrong with the conduct of the receivership. Nothing was done by the defendant until they were themselves served with these proceedings.
The second point made by Mr. McCarthy was that there was no independent expert testimony furnished to the court as to the conduct of the receivership. The main evidence given on behalf of the defendants was that of Mr. Daly. Mr. Daly was not an independent witness and there was simply no expert evidence as to the alleged negligence of the receiver. The only point of substance that could be raised was that which arose in the course of the cross examination of Ms. Kelleher to the effect that the open day may have been a missed opportunity. Mr. McCarthy went through the amended defence and counterclaim and examined the various allegations made against the receiver. He pointed out that under a significant number of the headings raised in the defence and counterclaim no evidence of any kind was led to demonstrate any negligence on the part of the receiver. The high point of the evidence from the point of view of the defendants was the view expressed by Ms. Kelleher that the fact that Mr. Tyrell contacted a number of people after the open day to say that there were legal issues (in relation to the management company) amounted to a missed opportunity. It was submitted by Mr. McCarthy that it was a reasonable thing to obtain clarification for those parties who had raised issues about the management company, a point accepted by Ms. Kelleher. The fact that this had to be done did not render the entire site toxic. It had always been the expectation that contracts would begin to go out to interested parties subsequent to the open day and in fact they started going out from mid to the end of January. It was submitted that there was nothing negligent in adopting the course of action taken by Mr. Tyrell and Mr. Cotter. Accordingly, he submitted that there was no basis of a claim in negligence against the receiver.
I should refer briefly to the submissions of Mr. McCann on this issue. Mr. McCann emphasised the fact that the receiver was the agent of the borrower in accordance with the terms of the mortgage deed. He pointed out that if there was default by the receiver it did not attach to the Bank. In order for a claim in tort to be maintained, it was not enough to show wrongdoing, there had to be wrongdoing and a loss caused by the wrongdoing. He submitted that there was no evidence of any negligence on part of the Bank in relation to the sales process. Equally, there was no evidence of any higher sales price being achievable because of something the Bank or did not do. Further, there was no evidence of an actual loss. He also reiterated the fact that there was no expert testimony from any expert in insolvency or from an independent auctioneer. Finally, he emphasised that there was no evidence form anyone to indicate why people did not purchase.
Decision
In general terms I should say that there seems to me to be little or no dispute between the parties as to the extent and nature of the duty owed by a receiver to a borrower and indeed to a mortgagee. The question is whether anything occurred in the course of the receivership in this case that amounted to negligence. The issue centres on the role of Mr. Tyrell. In general terms, I have already indicated my view as to the fixing of prices in respect of the various properties at Glanerought. There was no real conflict between the parties as to the approach and strategy adopted by Mr. Tyrell. I have already indicated that I do not accept that Mr. Tyrell was in any way responsible for the unfortunate headline that appeared in the Irish Examiner. It was appropriate for Mr. Tyrell to have attempted to obtain editorial material in the newspapers as part of the marketing strategy. One thing that can be fairly said is that the strategy did in fact work as large numbers turned up at the open day and Mr. Tyrell was in a position to take details from a considerable number of interested people.
This case comes down to a very net issue. Was there any wrongdoing on the part of the receiver through his agent, the auctioneer appointed by him to handle the sale of the properties comprised in the Glanerought development and if so was the alleged negligence such that it caused loss to the defendants. Following the open day, Mr. Tyrell got back to a number of parties who had expressed interest and he did confirm that he would seek clarification on the legal issues. The legal issues described by Mr. Tyrell in his evidence related to the management company. As indicated previously the management company had been struck off and had subsequently been re-instated prior to the open day. Mr. Daly referred to other matters as being “legal issues” which required to be complied with. There were a number of such other issues, but it is clear from the evidence of Mr. Tyrell, and it is the only evidence I have on this point, that these issues were not matters of concern for interested parties.
Other than the evidence that there was an issue on the open day in relation to the management company and that this resulted in Mr. Tyrell contacting parties who had expressed interest to advise them that that issue would be clarified, there is nothing else in the evidence before me that could in any shape or form amount to negligence on the part of the receiver in the conduct of the receivership.
Accordingly, I need to consider the evidence of Ms. Kelleher. As I have pointed out, her evidence is the high point of the case that can be made on behalf of the defendants. In the course of her cross examination, Mr. Hussey had said to Ms. Kelleher that the fact that, having generated interest at the open day Mr. Tyrell then went back to the interested parties and informed them that there were “legal issues” to be clarified and that he would get back to them, was an opportunity wasted and Ms. Kelleher agreed with that comment. In the course of this part of the cross examination, Mr. Hussey accepted that his complaint in this regard did not centre on whether or not there were, in fact, legal issues but rather centred on the marketing approach taken by Mr. Tyrell in this regard.
Ms. Kelleher was then re-examined by counsel on behalf of the receiver and in the course of re-examination, she said that as matters were raised by interested parties on the opening day, that it was absolutely appropriate for the auctioneer, Mr. Tyrell, to clarify those issues. She confirmed that after an open day, she would expect contracts to go out some four to six or eight weeks afterwards.
Therefore it can be seen that although Ms. Kelleher accepted that the open day was something of an opportunity wasted, she accepted in re-examination that it was perfectly reasonable for Mr. Tyrell to clarify the issues raised by interested parties.
Unfortunately, the facts of the matter are that although there were parties who were interested in the properties at Glanerought following the open day it transpired that turning that interest into completed contracts for sale was something that proved to be very difficult. Although there had been some 200 inquiries arising from the open day, very few contracts in fact went out. There were in fact four completed sales and only a couple of other potential sales.
It is in that context that I have to consider whether or not the events immediately following the open day were such as to amount to negligence on the part of Mr. Tyrell the servant or agent of Mr. Cotter the receiver. On the open day there were a number of inquiries from interested parties about the properties on offer. It is also clear that there were a number of queries in relation to the management company. Mr. Tyrell had an obligation to resolve those queries. It is clear from Ms. Kelleher’s evidence that this was a reasonable approach to take. What he did, apparently, was to indicate to those who had raised queries that there were legal issues to be resolved and when they were resolved he would contact the parties concerned again. I think it is clear from the evidence that Mr. Tyrell was in contact with those who had expressed an interest on a number of occasions subsequent to the open day.
The only evidence that supports the contention as to negligence is one sentence in the evidence of Ms. Kelleher. If one examines all of her evidence, particularly her view that it was reasonable for Mr. Tyrell to clarify the issues, together with the rest of the evidence in this case, it is impossible to reach a conclusion to the effect that there was negligence on the part of the receiver. The defendants have failed to establish a breach of the duty undoubtedly owed by the receiver to them.
Even if I was wrong in coming to that conclusion, there is another problem from the point of view of the defendants. There is not a scintilla of evidence to show that any loss has flowed to the defendants as a result of the handing of the open day and its aftermath. On the contrary, the evidence shows that the property market at the end of November 2009, was in a very bad state. To say that it was in freefall may not be an exaggeration. Mr. Daly in the course of his evidence had explained that he had difficulties in the sale of properties in Glanerought and he attributed that to the fact that he could not get a reduction in prices from Mr. Fitzgerald. I have had the benefit of the expert evidence of Ms. Kelleher, including her report. I have also had regard to the evidence of Mr. Tyrell. It is clear from all of these witnesses that there were great difficulties in the market at the time. I simply cannot see how it could be said that the failure to sell more than a handful of the properties by the receiver is for any reason other than the extremely depressed state of the property market. Certainly, there is no evidence before the court to satisfy me that, were it not for the actions of the receiver and/or Mr.Tyrell, the properties would have sold. After all it has to be borne in mind that according to Mr. Daly, these properties were being sold at a considerable undervalue. Mr. Tyrell had a list of interested parties and he worked through that list with a view to trying to get those interested parties to enter into contracts for the purchase of the properties at Glanerought. Despite his best efforts, this simply did not happen save for a small number of sales. Glanerought was a development that had been on the market since 2006. Sales had stagnated to a large extent by the time of the appointment of the receiver. Unfortunately, the problems manifest at Glanerought happened in many other parts of the country and are reflected in the collapse of the property market throughout the country.
To conclude, I can only say that the defendants have fallen far short of providing to this Court the necessary evidence to show that they have suffered any loss by reason of the actions of Mr. Cotter or Mr. Tyrell. In those circumstances I do not have to consider the question as to whether or not Anglo Irish Bank Limited could be liable in respect of any wrongdoing on the part of the receiver.
In conclusion, it seems to me that the plaintiff is entitled to judgment for the sums claimed herein. There is an issue which was postponed in relation to performance bonds and I will hear the parties as to that aspect of the case at a later stage.
McCaughey v Irish Bank Resolution Corporation
[2013] IESC 17
JUDGMENT of Mr. Justice Hardiman delivered the
13th day of March, 2013,
This is the appeal of the plaintiff from the judgment of the High Court (Mr. Justice Birmingham) delivered the 27th day of July 2011 and from the associated order dated the 9th day of December, 2011 whereby the plaintiff’s claims against the defendant were dismissed.
The parties.
The plaintiff, Mr. McCaughey, is a successful Irish businessman and formerly the moving spirit behind Century Homes, which he sold in 2005. The first-defendant is the statutory successor to Anglo-Irish Bank Corporation Limited, a bank which has become notorious. The second-named defendant is a Delaware Corporation with limited liability which was incorporated by the Bank as a vehicle for participation in a property fund known as the Anglo-Irish New York Hotel Fund.
The plaintiff, in or about September 2006, accepted an invitation to participate in the Fund when this was proposed to him by the Bank. He agreed to invest the sum of US$1m and, apparently also at the suggestion of the Bank, agreed to borrow US$620,000 of this from the Bank.
The plaintiff had been a customer of the Bank and of its “Private Banking” arm. He was not alone in being solicited to invest in the Fund mentioned above: about forty-nine other people, customers of the Bank and of its Private Banking arm, also invested in response to such solicitations. The plaintiff’s action has been described as a “pathfinder” for twenty-two other sets of proceedings.
Background to the investment.
Although the investment was made via a complicated corporate and partnership structure, devised by the Bank, the underlying proposition was quite simple. At the time the investors were solicited (September, 2006) the Bank, had itself agreed to purchase two long established hotels in the City of New York, being the Beekman Tower Hotel and the Eastgate Tower Hotel. Well before it solicited any investment from other parties the Bank, in or about May 2006, had agreed to purchase these hotels for over US$150m and was contractually bound to do so. If it failed to do so it was liable to forfeit a deposit in an amount exceeding US$11m and would presumably have been subject to proceedings in the nature of specific performance at the option of the vendors. The background to how the Bank became involved in this transaction is set out in the very detailed judgment of the learned trial judge, but is not immediately relevant to the issues raised on this appeal. The purchase of the two hotels on foot of the Bank’s contract was closed in or about the month of October 2006. The plaintiffs and the other investors were solicited by the Bank to invest in the course of the preceding month, September 2006. It appears from the evidence that the Bank had decided to solicit investors from amongst its “best customers” – persons known to it to have a net worth of at least €5m and/or incomes exceeding €500,000. It may be inferred that such persons were not likely to be innocents abroad, or persons under any kind of disadvantage: certainly the plaintiff was not in either of those categories.
For reasons not fully explained, the fact that at the time of solicitation the Bank was itself contractually bound to buy the hotels, and would have to do so out of its own resources if it could not find third party funds, was not explained to the plaintiff or, it appears, to any of the investors. Many would consider this a relevant factor in assessing what the Bank had to say about the project.
There were elaborate plans for the two hotels, which were well established but aging structures. These plans involved not merely the purchase of the hotels but the refurbishment of them at a price calculated on the basis of so much per “key”, a term used in the American hotel industry to mean room. The plans have not proceeded as was intended and the investors have lost their entire investment, though the Bank retains a substantial asset. The learned trial judge found, and it appears to be the case, that “the project has not proceeded as intended, principally because the cost of the planned renovation was far greater than had been contemplated originally”. The learned trial judge also found, what is undoubtedly true, that “the plaintiff is deeply aggrieved by what has transpired as are a number of other investors, and is firmly of the belief that he has been seriously ill served by the Bank”. This sense of bitter grievance arises from what he and others had thought their relationship with the Bank to be.
Motion to admit additional evidence.
On the hearing of this appeal the Court had before it a Notice of Motion dated the 17th October, 2012 supported by three affidavits sworn between the 16th October, 2012 and 19th January, 2013. This motion was to admit additional evidence regarding a memorandum dated the 17th August, 2012 from a New York City Assistant Commissioner to the Borough Commissioner of Manhattan to a letter from the same person dated on the same day. These documents relate to matters coming into being some years after the principal document whose rescission is sought in these proceedings. The views of the author of the 2012 document, insofar as admissible, could have been adduced before the High Court. The proposed additional evidence does not appear to bear on any issue properly before the Court on this appeal.
Private Banking.
It may be desirable at this stage to discuss the term “Private Banking”. At the trial in the High Court it was the subject of considerable cross-examination by Mr. Martin Hayden S.C., counsel for the plaintiff/appellant, of Mr. Paul Brophy who was a director and executive (Vice-President/Head of New York lending) at Anglo in New York.
Mr. Brophy agreed that the hotel Fund was being sold “to forty or fifty of Anglo’s best customers”. Asked what the concept behind Private Banking was, he answered that it was:
“To find opportunities for them to invest their resources and bring products to them… one of the things they did was to look at real estate investments where the bank would, sought out an investment property or an opportunity and then would bring that opportunity to a select number of clients where the equity would subsequently be syndicated and the bank would remain in as the senior lender on the transaction, would provide the senior debt.”
He agreed that:
“… the bank would source a project, prepare the project and then introduce it… to their best customers.”
He agreed that, in relation to the investment in question in this case:
“… Anglo would go about getting all the relevant information regarding the investment… then set a structure in place in relation to this project that involved a durable power of attorney being executed on behalf of, or by the investor…”.
He agreed that:
“… that particular structure effectively in this instance meant that the investor fundamentally had no independent power of action relative to the investment.”
And that:
“… Anglo picked the project, presented the project and was going to run the project”.
Mr. Hayden S.C. then put to Mr. Brophy:
“And that was the way it was designed from the outset. It was a question whereby the best customers, who had their other businesses to be getting on with, didn’t have to worry, because Anglo would mind them?”
Mr. Brophy agreed that this was so. That phrase, “Anglo would mind them”, is said by the plaintiff to be at the heart of the Private Banking relationship as he understood it to be and as he said it was presented to him by Anglo. If this is so, it must be said that the terms of the Investors’ Commitment Agreement, which appear to exempt Anglo from liability for anything short of fraud or fraudulent misrepresentation, are gravely at variance with it. “You’re on your own” would be a more apt colloquial summary of certain provisions of this document, set out below, than “Anglo would mind them”.
It was next put to Mr. Brophy that Anglo had sold the investment to its customers on the basis that “we will look after your interests”.
Mr. Brophy replied to this:
“I don’t know how it was specifically sold by the relationship managers but the general thesis of what you are saying seems accurate, yes.”
Mr. Hayden then further pushed his point asking:
“So: ‘Trust me. We are the professionals, we know what we are doing. You don’t have to be troubling yourself about it, we will look after you.’’ Isn’t that it?”
Mr. Brophy replied:
“I can’t say that all those words were used but I think the general premise is that, you know, people were brought an investment opportunity by the bank, it was explained to them fairly diligently and clearly what they were getting themselves involved in, they would have been made aware of the risks and pitfalls and the opportunities and ultimately it was up to those individuals themselves to make a decision, you know: ‘This is a high risk investment. Is this an investment I want to make?’.”
In response to this Mr. Hayden pointed out that it was not an answer to the question he had asked and pressed Mr. Brophy as follows:
“Can you tell us was it Anglo’s business model effectively to present these projects to people who they know, their best customers, who are very busy in other spheres of life and that Anglo would look after the difficulties and problems for them in the context of that investment?”
Mr. Brophy replied:
“Yes, I think that is fair”.
Mr. Hayden next inquired:
“So therefore, is it fair – would you have understood people, their best customers, to trust Anglo when it comes to bringing the information to them?”
Mr. Brophy answered:
“I think that people would have trust that whatever information Anglo had brought them, that they had brought them that information on the basis that that information was to the best of their knowledge, yes.”
The phrases emphasised: “Anglo would mind them”; “we will look after your interests”; “we are the professionals, we know what we are doing. You don’t have to be troubling yourself about it, we will look after you”; “… Anglo would look after the difficulties and problems for them in the context of that investment” – are said by the plaintiff to sum up the nature of the Private Banking relationship which they claim to be one which placed a fiduciary duty on the Bank. The Bank said the relationship was not fiduciary and was wholly governed by the terms of the commitment agreement. This, as we shall see, excluded liability for anything but fraud or fraudulent concealment, and sought to exclude even a duty to take care in the making of any representations.
The proceedings.
The plaintiff issued proceedings on the 7th October, 2009 and delivered a Statement of Claim on the 4th November, 2009 which has subsequently gone through a number of amended forms. The principal relief claimed is a rescission of what was referred to as “the Commitment Agreement”. This is a document entered into between the plaintiff and the Bank on 27th September 2006 whereby the plaintiff irrevocably committed to pay the sum of US$1m and was thus admitted into the partnership as a Class B limited partner to the extent of his investment. He was also required to execute a Limited Durable Power of Attorney appointing the partnership, the manager of the partnership and a number of persons designated by the partnership to act alone as his attorney-in-fact in his name.
In addition to the rescission of this agreement the plaintiff claims, amongst other things, the return of his investment, the rescission, separately, of the loan agreement whereby he borrowed over US$600,000 for the purpose of the investment; damages for fraudulent and/reckless concealment; damages for fraudulent misrepresentations; damages for negligence misstatement and/or misrepresentation; damages for negligence and breach of duty including breach of fiduciary or statutory duty; damages for conspiracy; damages for intentional interference with the plaintiff’s economic interests; damages for unjust enrichment; damages for intentional interference with the plaintiff’s economic interests; aggravated or special damage.
The defendants by their defence delivered the 11th January, 2010 take two preliminary objections: that the plaintiff should not be permitted to rely on a document which is extensively pleaded in his proceedings, described by him as the “black brochure” and by the defendants as the “Fund brochure” because they see it as a promotional document which does not give rise to any legal representation. There was also pleaded at that time that the proceedings were premature since the investment had been one which it was clear no funds could be recovered (assuming there were funds to recover) for a period of at least five years which had not then elapsed.
The defendant denied that it provided “tailored property funds”, as the plaintiffs had alleged; it specifically denied that the Bank owed any fiduciary duty to the plaintiff; indeed it denied that the Bank owed any duty of care to the plaintiff at all.
The defendant stoutly denied any misrepresentation or concealment which, as will be seen, was a substantial part of the detail of the plaintiff’s claim. It denied that any representations were made on which the plaintiff was entitled to rely; it specifically pleaded that it was not liable for its passing on of figures contained in “external reports or the information contained therein”. It was also specifically pleaded by the defendants that they did not know that the plaintiff would rely on their acts, conduct or misrepresentation (which were themselves denied) or that he would be induced thereby to enter into the commitment agreement and pay the monies mentioned. The Bank expressly denied that they were under a duty to take care in the making of any representations. The Bank then specifically denied (and this transpired to be an important pleading) that the plaintiff acted on the foot of any such representations. In other words, the Bank says, apart from anything else, that the plaintiff did not rely on any representations or other material communicated to him.
Apart from a general denial of liability, the Bank in fact counterclaimed against the plaintiff on the basis that his proceedings represent a breach of the commitment agreement and of the obligations which he undertook thereunder. The Bank seeks against the plaintiff damages for breach of agreement, warranty representation or acknowledgement.
Outline of issues.
The plaintiff complained that he was misled, actively or by concealment, in relation to four particular issues. These are:
“(1) The zoning issue, also sometimes referred to as the Certificate of Occupancy issue.
(2) The cost of renovation issue.
(3) The presence of sitting tenants issue.
(4) The interest rates strategy issue.
The learned trial judge remarked that, on the trial at the High Court (which included extensive cross-examination) most attention had focussed on the first and second of these issues and indeed the arguments on the last issue was not pushed to a conclusion. At the hearing of this appeal the argument focussed exclusively on the first issue.
The reason for this exclusive focus requires to be stated because it may not be apparent to those who have not had the transcript of the High Court hearing. It appears to me that the issue relating to the cost of renovations was in the foreground in the appellant’s case there, and that the case they put forward substantially depended on the evidence of Mr. Haskin, who is a long time prominent player in the New York hotel business. Mr. Haskin had originally been a promoter of the Fund with Anglo but subsequently fell out with them. It appears from my understanding of the High Court proceedings that Mr. Haskin’s evidence fell considerably short of what the plaintiff required to prove his case on the renovations cost issue. Accordingly, emphasis shifted before the end of the High Court case and on this appeal to the zoning issue.
It was alleged by the plaintiff that the zoning issue, or even the fact that there was a zoning issue, was never disclosed or explained to him; that it was thereby concealed from him either fraudulently or negligently. In order to understand this issue certain terms must be explained.
It appears that in New York, and in particular in Manhattan where these hotels are situated, certain terms are used in the hotel industry which have no immediate corresponding term in the Irish hotel business. Most relevant are the concepts of a “transient hotel” which seems to resemble a hotel as it is conceived of in Ireland that is a building in which is carried on the business of offering accommodation food and drink to all comers for agreed periods which are usually short and may be as short as a single night. The term “residential hotel” is used in New York in contradistinction to “transient hotel” and appears to mean a hotel which offers accommodation to “residential” customers for periods of at least one month. Sometimes, indeed, occupation by such customers goes on for years. The units so rented include kitchen facilities and the tenants may cook for themselves, or use the restaurant facilities in the hotel, or simply eat out. A resident may acquire rights against his Landlord and become a sitting tenant.
The distinction between these two types of hotel business is rigidly observed in New York usage. A further complicating factor, and one that applies in the case of each of the hotels in question here, is that the actual user of an individual hotel building may be partly transient and partly resident or wholly one or the other. This will be specified on the hotels “Certificate of Occupancy”, a document issued by the local authority and which is, it was said, required to be produced before any building permit can issue. A “residential hotel” is sometimes referred to as “an apartment hotel”, and in that sense means an apartment in a block or group of apartments which is in, or connected to, a building which also has bar, restaurant, meeting rooms and fitness centre services.
In the present case, the Eastgate Tower Hotels Certificate of Occupancy was for a transient hotel up to Floor 7 and for a residential hotel from Floors 8 to 25. The “Certificate of Occupancy” for the Beekman Tower was for a residential hotel throughout. Notwithstanding this, it was said, each hotel operated as a transient hotel throughout, and had done so for many years. Obviously, an ability to use premises as a transient hotel is more financially attractive to its owner.
This, then, is the “Certificate of Occupancy” issue which arose in March and April 2006. Both premises were owned by the Denihan family, a family long established in the hotel business in New York. At a certain stage, apparently on or about the 3rd April 2006, after the Bank had made a non-binding “best and final offer”, a sort of pre-contractual indicative bid. The vendors, who had done a good deal of “due diligence” made it clear that no further due diligence in relation to the condition of the properties would be permitted and they declined, by imposing an appropriate condition to permit any contact by the would-be purchasers with the New York City Building Department, inquiring about zoning compliance issues.
The purchase agreements were signed on the 19th May, 2006, one for each hotel, by Paul Brophy on behalf of the Bank and also on behalf of the second-named defendant, the Bank’s newly formed and wholly owned subsidiary for the purpose of this transaction.
These purchase agreements or contracts provided for a closing date on either the 28th September, 2006 or the 3rd October, 2006 depending on the date of the completion of the financial due diligence. But the effect of the contracts was that, subject only to the financial diligence the contracts were “hard”, which means that the deposits which totalled US$11.15m were now non-refundable
Eight days before these agreements were signed the final issues between the parties were resolved at a face to face meeting between Mr. Lawrence Denihan of the vendors and Mr. Brophy of the Bank. According to the evidence of one of the witnesses, a Mr. Haskin, eminent in New York hotel circles and a promoter of the Fund, it was hoped to secure a reduction of US$4m per property in respect of the zoning/Certificate of Occupancy issues and of the Bank effectively buying the zoning risk. But in the end the Bank agreed a reduction of only US$1m in total, less than 1% of the purchase price, which was US$151.75m for the two properties.
As happened in the High Court, the plaintiff/appellant put considerable emphasis on the signature of the purchase agreements and the consequent rendering of the deposits of over US$11m non-refundable. He said that that meant there was enormous pressure on the Bank to proceed with the transaction and an incentive to cut corners and to distract attention from any difficulties that might arise in an effort to get other investors on board before the closing date. If the other investors could not be provided before the closing date then the Bank would have to complete the transaction in its own and therefore incur an unnecessary second set of transaction costs if third parties investors were subsequently introduced since such investors would certainly require a proprietary interest, direct or indirect, in return for their money.
Documents.
Two documents played a central role in the arguments in this case. The first of these was referred to as the “black brochure” and it featured largest in the plaintiff/appellant’s submission. It is a high gloss brochure with many illustrations and is designed to be an eye catching and attractive document. From the plaintiff’s point of view it is the most important document in the case and the evidence showed that, although it was finalised in circumstances of considerable pressure, its contents were the subject of many and detailed exchanges between the Bank at a senior level, its employees in New York and its legal and other advisers there. By the time this document was produced the zoning/Certificate of Occupancy issue had clearly emerged and the Bank had taken the view that it was “manageable”. A good deal of discussion had taken place about whether it was necessary to include any reference to this issue in the brochure and it was established in evidence that an eminent zoning lawyer advising the Bank and Mr. Haskin, a Mr. Sillerman, had advised that such a reference should be made and had drafted a form of words for this purpose. This will be considered below. The Bank did not take Mr. Sillerman’s advice. But on the hearing of this Appeal, the plaintiff agreed that his proposed wording would have discharged the Bank’s obligation to disclose the zoning issue.
From the plaintiff’s point of view, the salient feature of the black brochure was what it did not say. It did not make any reference at all to the zoning/Certificate of Occupancy issue. This is agreed by the Bank, one of whose witnesses, Mr. Byrne, stated that he feared that such a reference would be misunderstood. He recalled that Autumn, 2006, was the time when the Tribunal of Inquiry into Certain Planning Matters and Payments was ongoing in Ireland and said that mention of the zoning issue might have suggested that it was something “which, in fact, it was not” and might have an off putting effect. Besides, the Bank was genuinely of the view that the issue was manageable. A similar issue had in fact been “managed” in the case of another New York hotel whose purchase the Bank had funded (though without taking any beneficial interest itself), the Mark.
The Bank’s fundamental position in relation to this brochure was that it was not a document intended to have any legal effect at all. As we have already seen, the pleadings by the Bank commenced with an objection to any reliance being placed on this document. Apart from this preliminary issue, the Bank relied on the multiple notes of caution and exclusion contained in the document and the manifest urging that a customer would take his own legal, financial, and taxation advice.
The black brochure.
The brochure consists of thirty-seven pages of text and/or illustration. It is impressively got up with a full colour title page on a black background, featuring photographs of various famous official and commercial buildings in Manhattan. The Bank’s name and logo is at the top with the words “Private Banking” underneath. The document is entitled “The Anglo Irish New York Hotel Fund”. There are further photographs of attractive street scenes in New York before the Table of Contents. After this is a glossy street map locating both hotels about ten blocks apart, not far from the UN building near the East river in Manhattan. This page features a box containing the words:
“The hotel market in New York is currently strong due to the increased demand for hotel rooms and a shrinkage of room supply owing to the recent trend of converting hotel rooms to condominiums.”
The first portion of the brochure requiring close attention is the executive summary on p.5. The project is introduced as follows:
“Anglo Irish Bank Private Bankers (“Anglo”) are seeking a limited number of investors who wish to avail of an opportunity to participate in the Anglo Irish New York Hotel Fund (the “Fund”).”
The basic business plan was outlined as follows:
“The Fund will acquire the freehold interest in two hotels in prime locations in Midtown Manhattan New York, the Beekman Tower Hotel and the Eastgate Tower Hotel.”
The brochure then announced that “the hotels have been sourced, negotiated and secured by Peninsula Real Estate Fund (the promoter).” This form of words of course avoids or downplays the direct beneficial interest of Anglo itself in the hotels.
The structure of the investment is described as follows:
“The hotels are being purchased for US$151.2m. Acquisition costs amount to US$10.5m. In addition a further c. US$24.8m is being provided to facilitate the planned renovations of the hotels and US$7.9m is being provided for management fees and interest costs for years one and two.”
The investment is described as follows:
“This fund provides investors with an opportunity to invest in prime hotel assets significantly below replacement costs in the financial capital of the world.
Non-recourse bank borrowings of US$145.8m are being provided by Anglo to the Fund.
The minimum investment is US$1,000,000, although Anglo reserves the right to allow an investment of a lower amount.”
High Risk.
Most importantly, from the defendant’s point of view there is the following statement:
“This investment is high risk – please refer to the section entitled “Risk Factors”. Prospective investors should review this brochure carefully and in its entirety and consult with their legal, tax and financial advisers in relation to the legal tax financial and other consequences of investing in the Partnership.” (Emphasis added)
The partnership itself had already been described as follows:
“The Fund is a US Limited Partnership named ‘The Peninsula Real Estate Fund’… and investors will hold 98.5% of the capital of the Partnership as Limited Partners. The remaining capital will be held by the Promoter.”
At the end of this executive summary, in italics, are the following words:
“N.B.: All figures and statistics in this brochure are reproduced from external reports addressed to Anglo. Reasonable efforts have been taken to ensure that all such information has been accurately been reproduced. However, Anglo cannot accept responsibility for any errors in the reports themselves or the information on which they were based.”
The effect of this, read literally, is that Anglo is no more than a post box for information of the sort to which the paragraph relates.
Throughout the rest of the document there are generally upbeat boxed statements such as, on p.19 over a colour photograph of an exciting New York streetscape at night:
“This Fund provides investors with an opportunity to invest in prime hotel assets significantly below replacement cost in the financial capital of the world.”
However at p.26 of the brochure under the heading “Exit Strategy”, potential investors are told:
“The Fund has a target investment period of five years. Investors should be aware that this is not a liquid investment and should be prepared to invest for a longer period. The partnership agreement runs for a period of eight years with a possibility of two one year extensions at the discretion of the Investment Committee. In general therefore it will not be possible for an investor to exit the Fund before the hotels are sold and the Fund is liquidated”.
Part of this statement is reproduced in a box on the following page.
Risk Factors.
At p.28 there is a section entitled “Risk Factors”. This is very heavily relied upon by the defendants. The first three paragraphs require citation in full:
“A geared investment is considered to be high risk and the following considers the types of risk associated with an investment of this kind. This brochure does not constitute investment advice and prospective investors should consult their own legal, financial or tax advisers in relation to their participation in the investment. All projections, forecasts and estimates contained in this brochure are prepared on the basis of current information, legislation and tax practice in Ireland and U.S. This brochure includes information obtained from external sources, and we have taken reasonable endeavours to accurately reproduce such information. Anglo does not accept any responsibility for its accuracy or completeness. (Emphasis added)
Prospective investors should consider the following risks amongst others”
There then follows a list of ten different types of risk with a short discussion of each. No zoning risk is mentioned.
The tight timescale for available for an investor to consider whether or not to invest has already been mentioned. This has a particular relevance in relation to the zoning risk because to take advice on it, as the investors were urged to do, would have involved sourcing and instructing a highly specialised lawyer in New York, and inducing him or her to advise in just a few days.
Finally, at p.35 of the document there is a section entitled “Investment Steps”. This says; so far as relevant:-
“The following are the steps to be followed once a decision has been made to invest (Emphasis added).
(1) The investor should complete the following document
– Subscription document,
– W – 8 tax form,
– Power of Attorney in order to facilitate the operation of the partnership,
– Professional Investor Declaration.
This latter is a declaration that the investor wishes to be treated as a professional investor and not a consumer and therefore excludes him from the benefit of certain laws and practices for the protection of consumers.
Zoning warning.
The role of Mr. Sillerman, a New York Attorney specialising in planning, has already been mentioned. He and his firm, together with other lawyers were involved in advising Anglo as to whether or not the zoning issues required to be disclosed. In an email of the 31st August, 2006 Mr. Garrett Thelander of Anglo had suggested to him by Mr. Sillerman the following words for zoning disclosure i.e. a form of words suggested for use in what became the “black brochure”.
This was as follows:
“Zoning
The Company intends to continue operating the Eastgate and the Beekman as transient hotels. It should be noted that the Certificates of Occupancy for the hotels permit only partial transient hotel use for the Eastgate and only residential hotel use for the Beekman. Both hotels are in an area of Manhattan in which the construction of a new building for use as a transient hotel (as opposed to use as a residential hotel) is not permitted on an as-of-right basis. However, zoning regulations permit the continuation of a use where prior non-conforming use is demonstrated.
Zoning Counsel has advised the Fund that other hotels in circumstances similar to those of the Eastgate and the Beekman have been traditionally granted changes to their Certificates of Occupancy to permit transient use. However, Zoning Council has also advised the Fund that it cannot be completely assured of that outcome. If the use of the hotels for transient purposes were to be challenged, the Fund would either apply to obtain the changes, which could take time, or operate both hotels as residential to the extent required”.
This is a relatively anodyne form of words, but one which clearly indicates the nature of the problem that had arisen. It omits to offer any opinion as to the probability of the change that might be sought for the Certificates of Occupancy being granted. It also omits to advise on the length of time or the cost involved to procure such alteration. I consider that this form of words would alert a prudent potential investor to the need to form some view on these topics, presumably by taking specialist New York advice, if he or she were seriously interested, but concerned about zoning. I also consider that if such a prudent investor were also aware that Anglo, for a discount of just US$1m on a consideration exceeding US$150m had agreed to buy, not merely the hotels, but the zoning risk that went with them from the Denihans, such a person would look more closely at Anglo’s own involvement in the transaction, and in the risk, and inquire what advice it had taken and what the purport of that advice was.
But the “prudent investor”, like the “reasonable man” is a legal fiction, a construct, an abstraction, whose putative thoughts and actions may on occasion bear little or no resemblance to how real people actually operate.
The Commitment Agreement.
This document was signed by the plaintiff on the 27th September 2006 and is the principal document or agreement of which the plaintiff seeks rescission. Clause 3 of the document is extensively relied upon in the defendant’s defence, referred to above. Particular emphasis is placed on the “Representation and Warranties of the Investor” set out there:
“Representations and Warranties of the Investor. “To induce Mainland to accept this subscription, the investor represents and warrants as follows:-
…
(e) “To the full satisfaction of the Investor, the Investor has been furnished any materials the Investor has requested relating to the Partnership and the offering of the Interests and the Investor has been afforded the opportunity to ask questions of representatives of the Partnership and Mainland concerning the terms and conditions of the offering of Interests and to obtain any additional information necessary to verify the accuracy of any information provided to such Investor and to make an informed investment decision with respect to an investment in the Partnership,
(f) other than as set forth herein, the Partnership Agreement and any separate agreement in writing with the Partnership executed in conjunction with the Investor’s subscription for Interests, the Investor is not relying, and will not rely, with respect to its Interests, upon any other information (including, without limitation, any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, and any seminars or meetings whose attendees have been invited by any general solicitation or advertising), any representation or warranty by the Partnership, the General Partner, Mainland, any Affiliate of any of the foregoing or any of their respective directors, officers, employees, partners, shareholders, advisers, attorneys in fact, representatives or agents, written or otherwise in determining to invest in the Partnership, and indirectly the real property located at 3 Mitchell Place, New York, New York USA and 222 East 29th Street, New York, New York USA (the “Properties”) and expressly acknowledges that none of the Partnership, the General Partner, Mainland, their respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys-in-fact, representatives or agents makes any representations or warranties to it in connection therewith. The Investor has consulted to the extent deemed appropriate by the Investor with the Investor’s own advisers as to the financial, tax, legal and related matters concerning an investment in interest and on that basis believes that an investment in the Partnership, and indirectly the Properties is suitable and appropriate for the Investor.
(j) The Investor has, independently and without reliance upon the Partnership, Mainland, their respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys in fact, representatives or agents, and based on such documents and information as it had deemed appropriate, made his or her own appraisal of and investigation into the business, operations, property, financial and other condition, credit worthiness and merits and consequences of investing in the Partnership and, indirectly the Property, and has made his or her own investment decision with respect to the investment represented by his or her Interests and his or her participation in the Partnership and, indirectly, the Properties,
(k) The Investor has, based on his or her own investigation of the interests, the Properties and the Partnership, made his or her own independent analysis of the likelihood of its success and such investor acknowledges and agrees that the information regarding the Interests, the Partnership and the Properties (including financial, operational and performance data and projections) and the economic and market information contained in any materials provided (whether by Mainland or others) to such Investors in connection therewith would have been obtained or derived from sources prepared by other parties and that none of the Partnership, Mainland, their respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys-in-fact, representatives or agents, assumes any responsibility for the adequacy, accuracy, completeness or reliability of such material or such information, the Investor acknowledges that past performance is no indication of future results, and that actual results may differ materially from projected, estimated or targeted results.
(i) The Investor acknowledges and agrees that (i) any materials provided (whether by Mainland or others) in connection with such Investors’ investment in the Partnership and indirectly, the Properties, do not purport to be comprehensive or complete or to contain all information or to describe the risks and potential conflicts of interest that such Investor may consider material in making a decision to invest in the Partnership and, indirectly, the Properties. (ii) such Investor must perform his or her own independent due diligence and independent analysis of the merits and the legal, tax, regulatory, financial and other risks of an investment in the Partnership (and any series of Interest therein) and, indirectly, the Properties prior to subscribing for Interest, and (iii) none of Mainland, its respective Affiliates, nor any of their respective directors, officers, employees, partners, shareholders, advisors, attorneys in fact, representatives or agents assume any responsibility for, and shall have no liability in respect of the materials referred to in Clause (i) above,
(m) The Investor acknowledges and agrees that the Partnership, the general partner, Mainland, the respective Affiliates, and their respective directors, officers, employees, partners, shareholders, advisors, attorneys in fact, representatives or agents may have confidential information relating to the Partnership, the General Partner, the interests and the Properties that has not been disclosed to such Investor, and that notwithstanding such non-disclosure, such Investor has received information deemed by him or her to be sufficient to allow him or her to make an independent and informed decision with respect to his or her investment in the Partnership, and, indirectly, the Properties.”
It is true, and the learned trial judge acknowledged it, that these clauses referred to “the partnership, the general partner, Mainland, their respective affiliates and their respective directors, officers, employees, partners, shareholders, advisers, attorneys-in-fact, representatives or agents” do not refer specifically to the Bank. But it was the learned trial judge’s view that:
“However, it seems to me given the nature of the relationship between Anglo and Mainland and the circumstances in which Mainland came into existence, that it is impossible to argue that Anglo and Mainland are not Affiliates of each other.”
Indeed, if the Bank, for the purpose of defeating the plaintiff’s claim, or any other purpose, claimed not to be party to the Commitment Agreement, that contention would be manifestly ridiculous.
These “representations and warranties” are said to have been made by the plaintiff but were in reality drafted by the Bank, presented to Mr. McCaughey and signed by him. In my view they are in terms which are breathtakingly broad. They involve him stating that he has all the material that he wants, that he is not relying on any representations and that he has made his decision on the basis of his own appraisal, and that he recognises that he may not have been given complete information but wishes to proceed all the same. This assessment is substantially that of the learned trial judge. I agree with it and would further say that the object of the clauses just quoted is to exempt the Bank from liability for anything except direct lies and actual fraud or fraudulent concealment.
The Resolution in the High Court.
The resolution of this action in the High Court very largely influences the approach that must be taken on this appeal. The learned trial judge, having set out the causes of action which the plaintiff urged found at p.42 as follows:
“I have concluded that the effect of the provisions of the Commitment Agreement is that the plaintiff is precluded from pursuing claims other than those based on fraud. In so far as the plaintiff has formulated a claim in tort, under various heads of claim, it must be recognised that this is a case where the parties have ordered their relationship on the basis of detailed, precise and elaborate contractual provisions. The effect of this is that the defendant’s obligations in tort cannot be more extensive than what the parties have by contract determined should be the position. This much is clear from the judgment of the Supreme Court in Kennedy v. A.I.B. [1998] 2 I.R. There, Hamilton C.J. referred with approval to the Court of Appeal decision in the case of National Bank of Greece SA v. Pinios Shipping Company, (No. 3) [1998] 2 Lloyds REP 126…
With reference to that case Hamilton C.J. observed that it clearly established that when parties are in a contractual relationship, their mutual obligations arise from their contract and are to be found expressly or by necessary implication in the terms thereof and that obligations in tort which may arise from such contractual relationships cannot be greater than those found expressly or by necessary implication in their contract.
While the exemption clauses are very comprehensive indeed it is, nonetheless, not in dispute that the plaintiff is not in any way prohibited from pursuing the claim that he wishes to in fraud, resulting if successful in an order for rescission. The law does not permit a contracting party to exclude liability for his own fraud in inducing the making of the contract, a long established principal that was restated relatively recently by the House of Lords in H.H. Casualty and General Insurances Limited v. Chase Manhattan Bank [2003] 1 CLC 358.
If the plaintiff is to succeed therefore, he must establish fraud.”
_______________________________________________________
The significance of what was held in the passage just cited is momentous in terms of the resolution of this Appeal. As we have seen, the learned trial judge cited the clauses in the Commitment Agreement relied upon by the defendant in its defence, whose effect is summarised above and whose text has been set out earlier. I do not at all dissent from the learned trial judge’s summary of the effect of these clauses: indeed, I would put it still more directly and say that the Bank has exempted itself from liability for anything short of direct lies or fraudulent concealment. A Bank will rarely need to have to have recourse to direct lies in order to achieve a desired result. I would also point out that the relationship brought about by the Commitment Agreement is absolutely at variance with the relationship of customer and “Private Banker” as described and acknowledged by Mr. Brophy, but this latter found no reflection in the legal documents put forward by the Bank and signed by the plaintiff, whatever impression may have been generated in less formal language and more relaxed circumstances.
The plaintiff says that terms by way of exemption or exclusion of liability as drastic as those found in this case are “particularly onerous or unusual”. The Court of Appeal in England held in the case of Inter-photo Picture Library Limited v. Stiletto Visual Programme Limited [1989] 1 QB 433 that clauses which fall within this category must be shown by the parties seeking to rely on them to have been “brought fairly and reasonably to the attention of the other party”. The plaintiff relies on the words of Bingham LJ (as he then was) at p. 445:
“The defendants are not to be relieved of their liability because they did not read the condition, although doubtless they did not, but in my judgment they are to be relieved because the plaintiffs did not do what was necessary to draw this ‘unreasonable and extortionate’ clause fairly to their attention”.
The learned High Court judge distinguished this case on its facts holding, at p.37 that:
“Here, in contrast, the plaintiff called to the defendant’s premises specifically for the purpose of executing documentation. The documentation was obviously of a legal character and the plaintiff accepts that he was aware that the document contained legal terms. That a contract would seek to regulate the relationship between plaintiff and defendant is not at all unusual, on the contrary, it is to be expected. Neither is there anything unusual in a pre-printed contract containing provisions seeking to safeguard and strengthen the position of the party that prepared it, indeed quite the contrary. How broad the terms of any exclusions or how specific any recommendations will be, can be expected to vary considerably but that very fact means that it is incumbent on a party who is signing a document that he knows contains contractual terms to satisfy himself that these are appropriate to his situation.”
I fully acknowledge that the circumstances in which the plaintiff signed the Commitment Agreement, and the nature and indeed appearance of the Agreement itself, would make anyone aware that the document contained legal terms. However, having regard to the principles set out in the passage just cited from Bingham LJ, and having regard in particular to the breathtaking scope of the clauses quoted, I do not necessarily agree that the matters referred to in the citation above from p.37 of the judgment of the High Court are necessarily sufficient to bring the actual nature and content of the clauses fairly to the attention of a person in the plaintiff’s position. It may be, having regard to the scope of the clauses, and to their variance with the nature of the previous relationship between the parties, that such a persons attention should be drawn in absolutely express terms to their enormous scope and to the total exclusion of liability which they attempt. But this question does not appear to me to be necessary to be resolved in the present case having regard to the subsequent findings of the learned trial judge on the non-fraud issues.
The learned trial judge held (p.41) that the present was a case of contractual estoppel “whereby the parties have expressly and specifically agreed that irrespective of whether a representation was made or not, or whether there has been any non-disclosure, that the plaintiff would not rely on that”. He was thus confined to relying on a cause of action in fraud and nothing else.
The learned trial judge then went on to consider what was required in order to establish fraud. He followed the decision of Shanley J. in Forshall v. Walsh and Bank of Ireland (High Court, unreported 18th June, 1997). This case listed the elements which a plaintiff seeking to establish fraud or deceit must show:
“(i) The making of a representation as to a past or existing fact by the defendant,
(ii) That the representation was made knowingly or without belief in its truth, or recklessly, careless of whether it is true or false,
(iii) That it was intended by the defendant that the representation should be acted upon by the plaintiff,
(iv) That the plaintiff did act on foot of the representation and
(v) That the plaintiff suffered loss as a result.”
These elements of actionable deceit have been well established in the case law for well over a century. Since that line of authority is aptly epitomised in a modern Irish case, there is no need to review the authorities generally. But the present case is based very largely on concealment, and it is obvious that to suppress a material fact may give a false impression even though no positive falsehood is spoken or written.
This state of affairs has been recognised by the law for centuries. It was strikingly expressed almost one hundred and fifty years ago in another case to do with a company seeking investors,
Oakes v. Turquand and Harding [1867] LR 2 HL 325 when Lord Chelmsford said:
“It is said that everything which is stated in the prospectus is literally true, and so it is, but the objection to it is not that it does not state the truth as far as it goes, but that it conceals most material facts with which the public ought have to been made acquainted, the very concealment of which gives to the truth which is told the character of falsehood”.
The fourth and fifth constituents of a claim for fraud and deceit, as set out by Shanley J., must be read in a slightly altered way when applied to a fraud or misrepresentation by concealment. The plaintiff cannot have acted on what was concealed, although he may be said to have acted on the balance of the representation which (unknown to him) is qualified or falsified in its effect by the omission. Furthermore, to show that he has “suffered damage as a result” of the omission seems necessarily to involve the negative proposition that he would not have acted in the manner that resulted in the loss, absent the omission.
The High Court’s dismissal of the fraud allegations.
The High Court dismissed fraud allegations in relation to each of the matters mentioned above as forming the subject of dispute. The High Court also dismissed the non-fraud allegations, for example those of negligence, largely on the basis of a finding that the disclosure of the zoning issue would not have made any difference to the plaintiff: he would have proceeded with the investment regardless. In doing so, it held (p.47) that:
“… it must be said that some of the issues which appear to have the potential to be of the greatest significance in fact turned out to be balls of smoke”.
Later, at p.88 the learned trial judge expressed the view:
“… I do believe that this conflict between the parties has brought to centre stage risks that otherwise would be regarded as remote or theoretical…”.
In the particular context of the zoning issue, the learned trial judge first essayed, it seems to me with great success, a “thumbnail sketch of the zoning law in New York” at p.70 ff. He then offers a detailed relevant history of the hotels in question from a zoning point of view before turning to the question of zoning as it appeared in the context of the Bank’s contract to purchase the hotels (March – May 2006) and again, five or six months later, in the days prior to the finalisation of the text of the black brochure (last days of August and into September, 2006). It should be said that the learned trial judge acknowledged the distinction made by the plaintiff between the zoning issue and the other issues in that the zoning issue gave rise to very serious discussion between Anglo, their American partners and the lawyers representing various participants as to whether or not disclosure of the zoning issue should be made whereas the other issues did not cause any such anxiety. This discussion is analysed in great detail between pages 74 and 89 of the learned trial judge’s judgment. He concluded that:
“I do not believe that there was information available either in the Spring or Autumn of 2006 to indicate that there was cause for particular concern in relation to either hotel.” (p.84)
On the following page he says:
“It seems to me that all involved with the two hotels in 2006 were entitled to be confident that the issues related to zoning and Certificates of Occupancy could and would be regularised. Whether the Certificates of Occupancy would be permitted to be amended was primarily an issue of fact.”
The learned trial judge placed particular emphasis on the fact that the hotels are still operating “to this day other than in accordance with their Certificates of Occupancy”.
He also acknowledged that there was no absolute certainty that the zoning issue could be resolved but observed, at p.86;
“There must be few successful applications in any area of the law where it is not possible to consider in retrospect, and say ‘could it have gone wrong?’. However, trying to view matters in the round and attempting to put myself in the position of someone giving consideration to the issue in August 2006, it seems to me that it would have been very reasonable to expect with real confidence that the building department would acknowledge the reality of the existence of lawful non-conforming uses. Both hotels gave a clear impression of having lawful uses that were deeply entrenched and this, more than anything else, is what would have occurred to anyone considering the situation.”
The learned trial judge considered in detail the evidence of Mr. Sillerman, who gave evidence for the plaintiff. He fully acknowledged the various risks attested to by Mr. Sillerman. He was, however, impressed by the contents of Mr. Sillerman’s own application to Commissioner Santulli, Manhattan Borough Commissioner, Department of Buildings, in 2007. Mr. Sillerman had then pointed out, in factual statements made in a specific and unequivocal manner, that the case for continued total transient use (and if necessary amendment of the Certificate of Occupation) was very strong. Accordingly, the learned trial judge was able to conclude, at p.92:
“I am of the view that any risk facing the hotels in 2006 was very small. While a satisfactory resolution might not have been completely assured it was certainly to be expected and indeed confidently expected. There was, I am satisfied, a clear belief on the part of the Anglo personnel that the issue was one that was capable of ready resolution and that belief was an honest one and a reasonable one and indeed one that was later proved to be correct and quickly proved to be correct.”
I would add that the very small discount accepted by Anglo in return for assuming the zoning risks seems to fortify that finding.
Finding on non-fraud issues.
The learned trial judge next connected the fraud and non-fraud issues with his finding on p.93:
“Accordingly, I do not believe that there is any substance in the suggestion that Anglo acted fraudulently in publishing and distributing a brochure that did not contain a reference to the zoning issue, nor am I of the view that the publication of the brochure was in this regard negligent.” (Emphasis added)
Immediately after this finding the learned trial judge made a number of other findings of great significance. Firstly, he dismissed Mr. McCaughey’s evidence that he would not have invested in the Fund had the brochure contained any reference to zoning. He did so in the following language, at p.94:
“I do not lose sight of the fact that the plaintiff has given very firm evidence that he would not have invested in the Fund had the brochure contained any reference to zoning. He has described his evidence in that regard as ‘categorical’ and has referred to the fact that he has in the past declined to become involved in investment opportunities in Ipswich and Sheffield which appeared to raise zoning issues.”
He elaborated on this finding as follows:
“I do not, at all, believe that Mr. McCaughey has been intentionally untruthful in making the statement that he has, but I do believe [that] that statement is the product of hindsight and indeed of wishful thinking. This statement is undermined by the fact that Mr. McCaughey has also said that had he known about the interest rate strategy and about the long term tenants, and the status of the renovation budget that he would not have invested. Indeed, it must be said the phrase ‘I would not have invested’ became something of a mantra. In my view no reasonable prudent investor who found the proposed investment otherwise attractive, is likely to have been dissuaded from investing by being told about the reality of the zoning issue.”
The learned trial judge then went on, at p.95 to reiterate his dismissal of the fraud based causes of action. He then observed that:
“Having regard to the view that I have formed about the effectiveness of the exemption clauses contained in the commitment agreement, that would be sufficient to dispose of the case. However, I should add that the plaintiff has also failed to establish the evidence and entitlement to succeed on any one of the non-fraud elements of the claim.”
The explicit finding on the basis of which the learned trial judge dismissed the plaintiff’s non-fraud claims is his finding that the plaintiff would not have been dissuaded from investing by being told the reality of the zoning situation.
In the course of the hearing of this appeal Mr. Hayden S.C. for the plaintiff/appellant specifically conceded that the wording suggested by Mr. Sillerman, and set out above, would have been sufficient, in the plaintiff’s view, to meet the Bank’s disclosure obligations. Referring to this form of words, the learned trial judge found:
“The language suggested for inclusion by Mr. Haskin, which he had obtained from his lawyers, was itself quite comforting. If it were felt that an Irish readership would benefit from greater elaboration of the situation relating to zoning/Certificates of Occupancy, then that could have been provided and would have offered additional comfort”.
Status of the foregoing findings.
The above findings have been made by the learned trial judge in the course of a meticulous judgment and after a hearing in which both the plaintiff and witnesses on his behalf, including expert witnesses on New York Law, gave evidence and were cross-examined. Similarly most of those involved on the side of the Bank and their advisers, including each sides expert on New York Zoning Law gave evidence and were cross-examined. The content of foreign law requires to be proved as a fact in this jurisdiction and in most Common Law jurisdictions. I am therefore of the view that the findings set out above, both as to the significance of the zoning issue and as to the state of mind of Mr. McCaughey, are findings of fact made by the judge of the High Court after hearing appropriate evidence to allow him to make them.
I am also of the opinion that they are findings of primary fact being “determinations of fact depending on the assessment by the judge of the credibility and quality of the witnesses. It is for the determination of those facts that a viva voce hearing takes place”.
The foregoing quotation is from the judgment of Henchy J. in
M. v. An Bord Uchtála [1987] IR 510 at 523.
In such circumstances, as Henchy J. puts it:
“Because those facts depend on the oral evidence given and accepted in the High Court, this Court on appeal will not normally reverse such findings. Even if it deems different findings to be more appropriate, or even if the findings made seem to it to be incorrect, this Court will not normally interfere with them. This is because it has not had the advantage of seeing and hearing the witnesses as they gave their evidence. It is only when findings of primary fact cannot in all reason be held to be supported by the evidence that this Court will reject them – see Northern Bank Finance v. Charlton [1979] IR 149.”
The conclusions of the learned trial judge at the end of his judgment, summarised at pages 93 – 95, appear to me to depend on certain earlier findings:
(i) “… all involved in the two hotels in 2006 were entitled to be confident that the issues relating to zoning and Certificates of Occupancy could and would be regularised. Whether the Certificates of Occupancy would be permitted to be amended was primarily an issue of fact.”
(ii) “… I do not believe that the brochure misrepresented the situation as of the date of publication.”
(iii) The judge heard conflicting evidence from “two distinguished members of the New York Land Use Bar, Mr. Sillerman and Mr. Masyr”. With the result that, as he said “I am now left with the unenviable task of choosing between the correctness of their views when they find themselves in disagreement”. He preferred the defendant’s experts evidence.
(iv) The learned trial judge withheld belief from the plaintiff’s assertion that “he would not have invested in the Fund had the brochure contained any reference to zoning”. The judge held that the phrase “I would not have invested” itself “became something of a mantra”, and gave reasons for that conclusion.
(v) “In my view no reasonable prudent investor who found the proposed investment otherwise attractive is likely to have been dissuaded from investing by being told about the reality of the zoning issue”.
The plaintiff/appellant criticised those findings and others like them on the grounds that they attached too much importance to what a “reasonable person” or a “prudent investor” would have thought about the reality of the zoning issue and how such a hypothetical person would have acted. This, counsel said, was to impose an objective standard whereas the plaintiff was entitled to have the effect of the omission to mention zoning assessed in terms of its subjective impact upon him.
I do not accept that this is a proper ground of criticism of the judgment. When one is assessing a statement of a person as to what he would have done, or not done, had matters developed differently to the way they actually developed, it is reasonable to consider, as a starting point, whether his claimed reaction would have been reasonable. It would quite wrong, of course, to proceed on the basis that only a reasonable reaction was open to him because the Courts very often see instances where people react to particular developments in ways which are irrational, exaggerated, unduly bellicose or unduly timid, or otherwise improbable. But the learned trial judge’s finding here made every allowance for the capacity for odd reactions for subjective reasons and found that, though he did not accept Mr. McCaughey’s evidence that “I would not have invested”, that this reaction was subjectively genuine and “the product of hindsight and wishful thinking”, not of deliberate falsehood.
___________________________________________________________
The dictum of Henchy J. on the status of judicial findings of fact is consistent with the long established jurisprudence in this country and in the neighbouring jurisdiction from The S.S. Gairloch, Aberdeen Glenline Steamship Company v. Macken [1899] 2 IR 1, Minister for Justice v. S.M.R. [2008] 2 IR 242.
In the former case, Holmes LJ said:
“When a judge after trying a case upon viva voce evidence comes to a conclusion regarding a specific and definite matter of fact, his finding ought not to be reversed by a court that has not the same opportunity of seeing and hearing the witnesses unless it is so clearly against the weight of the testimony as to amount to a manifest defeat of justice.”
To practically the same effect is the well known dictum of McCarthy J. in Hay v. O’Grady [1992] 1 IR 210 at 217:
“An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and apparently weighty the testimony against them. The truth is not the monopoly of any majority.”
I do not consider that the relevant findings in this case are findings which rely on inference rather than being findings of primary fact. In every case where the credibility of a witness is at stake – credibility in the sense of whether or not the witness is giving a credible account, not necessarily whether he is lying – are of necessity issues of fact.
The finding as to Mr. McCaughey’s intending to invest in the Fund regardless of what he was told about the zoning issue is a finding as to his state of mind. This, on the authority of Bowen LJ’s well known dictum in Edgington v. Fitzmaurice (1885) 29 Ch D 459, is a matter of fact.
Edgington is another case where an investor was gravely disappointed and considered that the terms of a prospectus on the faith of which he had invested money were fraudulent both in what they said and what they omitted to say. He was upheld in these beliefs by both the High Court and the Court of Appeal in England. One of the points which those concerned in the management of the Company took in answer to his claim was that certain statements in the prospectus were not statements of fact, as is required to constitute actionable fraud, but merely statements of intention. In a memorable passage, at p.483 of the Report Bowen LJ found as follows:
“A mere suggestion of possible purposes to which a portion of the money might be applied would not have formed a basis for an action of deceit. There must be a misstatement of an existing fact: but the state of a man’s mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man’s mind at a particular time is, but if it can be ascertained it is as much a fact as anything else.”
This finding arose in the context of a defendant’s attempt to distinguish a statement of intention from a statement of fact but I am satisfied that it has the necessary corollary that the finding, quoted above, as to Mr. McCaughey’s state of mind at the time he agreed to make the investment is a “determination of fact depending on the assessment by the judge of the credibility and quality of the witness”.
In my view, it cannot be said that the learned trial judge’s findings in this regard is not “supported by credible evidence” and the findings certainly cannot be said to be “so clearly against the weight of the testimony as to amount to a manifest defeat of justice”. I therefore consider this Court to be bound by that finding. The finding itself is fatal to the non-fraud causes of action because it destroys the causal link between the tort, however framed, and the deleterious result. The learned trial judge’s conclusions on the fraud based causes of action are themselves based on findings of fact from which there is no scope for departing, some of which are set out below.
Conclusion.
I would dismiss the appeal and uphold the order of the learned trial judge.
Wright v Health Service Executive
[2013] IEHC 237
JUDGMENT of Ms. Justice Irvine delivered on the 7th June, 2013
Background
1. The plaintiff in these proceedings is a married lady, who was born on the 19th October, 1962. She resides with her husband at Easky, Co. Sligo.
2. In the last week of November or the first week of December, 2005, the plaintiff was sitting astride her husband’s stationary motorbike when it toppled over causing her to fall to the ground. In the immediate aftermath she was not aware of having sustained any significant injury. However, during the following week or so the plaintiff developed quite severe back pain. As a result she attended her general practitioner and later presented to the Accident and Emergency Department of Sligo General Hospital (“Sligo General”) on the 9th December, 2005.
3. As a result of her back complaints the plaintiff was an inpatient in Sligo General on four separate occasions. The periods concerned were as follows:-
(i) 9th – 16th December, 2005;
(ii) 5th – 7th February, 2006;
(iii) 10th – 26th February, 2006; and
(iv) 12th – 16th March, 2006.
She was also an inpatient in the Mater Misericordiae University Hospital Dublin (“the Mater”) over the following periods:-
(i) 28th February, 2006 – 8th March, 2006; and
(ii) 16th March, 2006 – 3rd April, 2006.
4. In simple terms, the plaintiff’s claim against Sligo General is that over the first three periods of her care in that hospital, it failed to properly document, assess, investigate and monitor her back condition such that certain symptoms and findings, which ought to have been recognised as signs of a developing or evolving Cauda Equina Syndrome (“CES”) were not identified and acted upon with sufficient speed such that she went on to develop a range of injuries including permanent bladder and bowel damage. That damage, she maintains, was caused by a large herniated central disc at the L4/5 level which led to significant spinal stenosis and pressure on the nerves supplying the lower lumbar spine and which had warranted urgent surgical removal to preserve the integrity of the nerves supplying the bladder and bowel.
5. As against the Mater, the plaintiff claims that her condition on the 28th February, 2006, that being the date of her first attendance at that hospital, was such that immediate operative intervention was warranted and that its failure to operate to decompress the epidural space at L4/5 until the late evening of the 3rd March, 2006, amounts to actionable negligence. She also contends that the surgical approach used by Mr. Keith Synott, Consultant Orthopaedic Surgeon, to remove the offending disc and decompress the spinal cord was inappropriate and fell below an acceptable standard. It is also alleged that the surgery itself fell below an acceptable standard in that she maintains that her surgeon failed to remove the entirety of the disc such that the decompression failed and she went on to require further surgery to remove a remaining fragment of the disc on the 17th March, 2006.
6. The plaintiff also maintains that there was negligence on the part of the Sligo General in its failure to recognise the significance of her clinical condition when she re-presented with signs of CES on the 12th March, 2006. She contends that her symptoms warranted immediate investigation by MRI scan and/or urgent transfer back to the Mater for emergency surgery. However, she did not have her MRI scan until the 16th March, 2006, and the decompression surgery until the 17th March, 2006, as a result of which delay the offending fragment of disc was permitted to cause ongoing damage to the nerves supplying the bladder and bowel thus causing her additional irreversible bowel and bladder damage.
7. As a result of the defendants’ alleged negligence, the plaintiff maintains that she was ultimately referred to the National Rehabilitation Hospital (“rehab”) in April, 2006 for bladder and bowel management. There, she was taught to self-catheterise because of ongoing bladder difficulties. She also claims that during her period in rehab she had significant problems with constipation and faecal incontinence.
8. The plaintiff maintains that she found it difficult to comply with the regime of intermittent self-catheterisation. She told the Court that she found it disgusting and could not cope with it psychologically. She said she wanted to manage her own urinary function and perceived catheterisation as taking away her independence. Urodynamic studies carried out in January, 2007 have established that the plaintiff has no useful bladder function and she maintains that her difficulties in this regard were caused by the defendants’ negligence. As a result, she is required to catheterise twice daily, even though she remains reluctant in this regard and tries to empty her bladder herself.
9. Apart from her urinary difficulties, the plaintiff maintains that she has a range of other physical and psychological problems as a result of the defendants’ negligence. She maintains that she has lost bowel function and needs to irrigate her bowel on a daily basis. These problems, the plaintiff told the Court, have had a profound effect on her daily life in that she is now restricted from participating in normal social activities. She is presently under the care of Prof. O’Connell at St. Vincent’s Hospital in respect of her bowel disorder. The plaintiff complains that she has ongoing significant back pain which affects her shoulders, neck, arms and legs. She maintains that she is limited in her walking and sitting capabilities and that she needs two crutches to walk. She attends Mr. Victory, Consultant Anaesthetist, at St. Vincent’s Hospital in respect of her ongoing back and related pain. She also complains of significant depression and is taking substantial amounts of antidepressant medication.
10. Both defendants deny all allegations of negligence. In particular Sligo General maintains that it carefully investigated, monitored and treated the plaintiff’s condition and paid proper and due regard to signs and symptoms which are associated with CES. It maintains that the care it provided for the plaintiff during each period when she was an inpatient was in accordance with the then prevailing standards. The plaintiff’s history and clinical signs prior to the 20th February, 2006, did not warrant the procurement of an emergency MRI scan, as was contended for on her behalf, and her condition during her first three periods of hospitalisation at Sligo General did not mandate her more expeditious transfer for expert evaluation to the Mater.
11. In its defence the Mater maintains that the plaintiff did not have signs and symptoms which required emergency surgery at the time she was first seen on the 28th February, 2006. It contends that, having regard to her clinical history and presenting symptoms, a decision was made that early surgical intervention was warranted against the risk of the sudden onset of acute CES. The fact that surgery, however, which had initially been scheduled for the 1st March, 2006, was not carried out until the 3rd March, 2006, is not evidence of any want of care for the plaintiff’s condition particularly in circumstances where the delay was due firstly to the fact that other procedures scheduled ahead of the plaintiff’s operation ran later than expected on the 1st March, 2006. Thereafter there was the difficulty of finding a space for her surgery in the operation lists and the situation further compounded by the fact that an emergency procedure trumped the plaintiff’s surgery when it was rescheduled for the 2nd March, 2006.
12. As to the allegation that the surgical approach adopted by Mr. Synott, Consultant Orthopaedic and Spinal Surgeon, was inappropriate and that he should have performed what was described as a wide laminectomy rather than the less radical hemilaminectomy which he carried out, the Mater maintains that the latter procedure was in accordance with the prevailing practice for a surgeon faced with a large sequestered disc at the L4/5 level in a patient showing signs of CES. As to the standard of the surgery performed by Mr. Synott, the Mater maintains that he fully removed the offending disc following which he decompressed the cauda equina as was appropriate in all of the circumstances. It maintains that the plaintiff made an uneventful recovery from the surgery carried out on the 3rd March, 2006 and that some days after her discharge and entirely independent of any negligence, she developed a further disc prolapse, referred to as a recurrence, at the L4/5 level as a result of which she re attended at Sligo General on the 12th March, 2006.
13. In respect of the period commencing the 12th March, 2006, and concluding with her second surgical procedure on the 17th March, 2006, both hospitals maintain that they promptly investigated the plaintiff’s condition as a result of which, having had an MRI scan on the 16th March, 2006, she had further surgery on the following day as a matter of urgency.
14. Finally, in relation to causation, the defendants maintains that the musculo skeletal symptoms complained of by the plaintiff in her neck, shoulders, back, arms and legs are unrelated to any injury that could have been caused by CES. Likewise, they maintain that her bowel symptoms do not relate to CES or any alleged delay in dealing with that condition. As to the plaintiff’s bladder function, the defendant accepts that she has an atonic bladder but maintains that she has not discharged the burden of proof to establish as a probability that this condition is related either to CES simpliciter or ought to be associated with inadequate or delayed surgical intervention. Even if there was any negligence on the part of the defendants, they maintained that the plaintiff’s bladder problems may well have been caused by her failure to comply with the regime of self catheterisation advised by her clinicians and that even if there was any unwarranted delay in her surgery that as a matter of probability it is unlikely to have adversely affected her outcome. It further maintained that the plaintiff’s medication for her other medical ailments which are un-associated with CES are likely to be responsible for a significant portion of such bladder and bowel symptoms as she may truly have and that her diabetes may also have some role to play in relation to her urinary dysfunction.
Prior Medical History
15. The plaintiff prior to the events which are the subject matter of these proceedings, had a medical history which is of some relevance. In 1994, as a result of ongoing back pain she had a discectomy carried out at the L4/5 level of her spine. This was carried out in Hillingdon Hospital in the United Kingdom. The plaintiff also had a history of approximately eighteen months’ urinary incontinence in 1994. Notwithstanding a period of investigation and the carrying out of urodynamic studies, no neurological deficit was ever identified. Ultimately, a diagnosis of stress incontinence was made.
16. In addition to the aforementioned matters, the plaintiff also had a history of depression, but this does not appear to have interfered with her from a vocational or personal perspective. She was in a position to hold down full time employment with the Department of Defence in what appears to have been relatively challenging employment until such a time as she came to Ireland with her husband in 2004. Following her arrival, she registered as a patient with the practice of Dr. O’Gorman and was an infrequent attender throughout 2004 and 2005. Her first attendance with Dr. O’Gorman in respect of back pain was on the 8th December, 2005, when she presented with a history of having fallen from a motor scooter some thirteen days before. In the ten months leading up to that attendance she had not sought Dr. O’Gorman’s advice in respect of any medical problem.
Chronology
17. The following is an abridged compilation and chronology of what I consider to be some of the more relevant entries in the clinical, physiotherapy and nursing notes in Sligo General and the Mater. For ease of reference those extracts which are from the nursing notes appear in italics.
2005
9th December The plaintiff attends Sligo General A & E. She reports back pain getting worse all week and numbness in the left leg. No history of perianal numbness, bowel incontinence or loss of power. On examination, reduced sensation in left lower limb, reduced power in L. big toe, straight leg raising (“SLR”) reduced to 50 degrees bilaterally. Impression: back pain with neurology
10th December On examination: L. leg slightly reduced power. Decreased sensation on dorsum of L. foot. Impression: mechanical back pain. Patient felt she had not emptied her bladder and complained of left buttock pain radiating to the thigh and knee.
12th December The plaintiff’s pain is reported as improved and she is mobilising.
13th December Reviewed due to pain in a.m., p.m., pain is improved. She is mobilising well.
14th December Patient in good form. For CT. Seen by dietician.
15th December The plaintiff is mobilising around the ward. She has no real complaints. Gynaecological consultation. Gives history of urinary incontinence.
16th December Patient discharged from hospital. The report of CT scan: appearances favour recurrent central disc herniation at L4/5. A sequestered component cannot be excluded. There did not appear to be any significant encroachment but the radiologist reported that an MR. with contrast would clarify this issue. Medical notes record that the patient was not suitable for MRI due to size. She was discharged for review at outpatients’ in two months.
2006
5th February The plaintiff reattends Accident and Emergency Department of Sligo General. Reports progressive back pain over six weeks, pain in both legs. On examination: Restricted SLR R 10 degrees and L 30degrees. Too tender to allow back examination. Given IV morphine. Triage: She reported difficulty passing urine secondary to back pain
6th February Clinical examination: sensation in R. leg decreased, normal rectal tone and perianal sensation. The patient was admitted for pain control including morphine. Query for MRI and discharge when able. No change in general condition.
7th February Patient discharged herself from hospital, other patients were annoying her. Patient could not tolerate MRI claustrophobic. Up for shower, seen by physio. Plan for discharge. Patient adamant to go home.
10th February Readmitted to Sligo General. Triage: Pain radiating L.side.Sensation reduced on R. History: R sensation whole L.leg, difficulty passing urine for three days, no urinary or faecal incontinence. Normal control. Bilateral reduced SLR. 30 degrees R. 10 degrees L. Power reduced L.leg. Query for MRI. Unbearable back pain since discharge, patient very stressed when transferring to commode-bed pan offered-unable to roll onto same. Query book MRI Monday Dublin.
11th February Patient is distressed and tearful ++, unable to use slipper pan to pass urine. Bladder appears palpable. At 16.00 passed urine +++ and bed sheets wet.
12th February Complaining of difficulty passing urine. For catheterisation. No motor deficit of lower limbs. Decreased sensation of left leg and foot. Patient complains she had not passed urine for five days. Unable to use bedpan. Fluid balance chart: Catheter inserted at midday. Patient passed 1050ml of urine and was clamped. At 23.00 passed an additional 1000ml.
13th February Patient passed 1400ml urine at 2am. Patient does not want catheter out. Feels pressure in vaginal area. pm passes two large stools. Patient feels terrific. Reports bowel problems for previous seven weeks. Catheter out. Patient using bedpan on request.
14th February Patient reports not feeling her bowels move the previous days. Denies bowel and urine incontinence. Complained of numbness in the left buttock. Decreased sensation in L2 -L5. Per rectum: normal anal tone, squeeze and perianal sensation. MRI appointment given for Monday 20th. Unable to stand for physio. Complaint of spasm in the left groin and numbness of the left foot. No evidence of CES per Mr. Shariff.
15th February Pain in buttock. Awaiting MRI in Beacon next Monday, 20th. For anaesthetic review for pain control. At 19.00hrs patient complains of pain in her left hip and groin. She described the pain as feeling numb. She reported getting an urge to pass urine and then could not go. It then felt like spasm and a large amount passed.
16th February In severe pain when seen by physio. Reported pain in L. buttock, hip calf with severe spasm. Started to cry when efforts made to move her from lying to seated position. Ice pack to ankle for spasm. Passing urine via bed pan. No complaints overnight.
Dramatic improvement after Neurontin. Able to get on her feet.
17th February Numb left buttock. In good form. SLR on L 40 degrees. Tolerated standing for ten seconds three times. No complaints voiced to night staff.
18th February No clinical notes. Pain in left leg. Ice to left buttock. Following encouragement patient stood out of bed and used commode to pass urine.
19th February No clinical notes. Mobilised out of bed with minimal assistance. Complaint of pain and spasm from l. buttock to l. thigh.
20th February Open MRI carried out at Beacon and patient returned to Sligo. Distressed++. Slight urinary incontinence early night. Used bed pan. Ice applied to ankle for spasm.
21st February Films reviewed. Large disc present. Neurontin increased. Original copies of MRI and letter sent to Mr. Synott in the Mater. In good form in early am. Crying with pain at 11.00. A referral letter to Mr. Synott was prepared suggesting a discectomy. Letter records the patient as having no motor deficit and stating that the MRI report would be forwarded. Seen by Occupational Therapy. In too much pain to demonstrate and function fully. Is unable to walk. Wheeled to toilet on commode.
22nd February No clinical note. Report on MRI generated by Beacon. Large central disc herniation reported at L4/5 causing significant spinal stenosis at this level. Mobilised to toilet with zimmer frame. Requested cyclomorph for severe pain in l.leg.
23rd February Epidural administered for pain radiating to both legs. Complains of buttock pain radiating to both legs left greater than right. Patient had a heavy left leg and numbness in l.foot.
Epidural requested. SLR increased in L decreased in R. To theatre for epidural.
24th February Pain improved. No motor or sensory deficit reflexes. For discharge. Bed rest. 11.30 a.m. Patient said pain was returning. Patient chartered for outpatient clinic in Mater the following Tuesday. Patient refused to go home. Letter prepared to Mr. Synott enclosing the report of MRI. In good form. Ice pack to l. leg 18.00.
25th February Nothing unusual to report.
26th February Patient medicated. Slept well. Discharged from Sligo General with appointment for Mater on the 28th February, 2006.
28th February Attended Mater. Admitted. Operation planned for the 1st March, 2006. History given that the patient had a few episodes of urinary incontinence in the last week. No back pain. Complained of altered sensation in perianal region. Patient felt numb passing urine. On clinical examination she was noted as having no urinary or faecal incontinence. Straight leg raising reduced more on the left than right. Beside the entry for “Diagnosis” was written “(A) cauda equina” which the defendants maintained meant that the clinicians were assessing the plaintiff for CES while the plaintiff claimed the note evidenced a diagnosis of CES. Pre-op assessment done on 28th. Patient admitted to the ward at 19.30. Admitted from the fracture clinic for prolapsed L4 and L5 disc and cauda equine, seen by anaesthetist. Fasting for operation tomorrow.
1st March Notes reveal the operation was not reached. Patient complaining of constipation for three days. Following lactose, bowels opened three times. Seen by Mr. Synott. Patient still awaiting theatre at 17.00. Operation cancelled.
2nd March Patient waiting lumbar spine decompression surgery. No operation today. Emergency spinal case came in last night and list increased. Per rectum examination. Tone decreased. Complaining of increased numbness on the left. For surgery tomorrow evening. For lumbar decompression spine in afternoon.
3rd March Operation done. Operation note records diagnosis as lumbar disc displacement. Findings recorded as large sequestered disc at L4/5. Procedures recorded include large disc identified and removed. Irrigation to annulotomy. Nerve root free and space decompressed.
4th March Bladder palpable patient catheterised. Patient unable to pass urine. At 3.30a.m., 1600ml drained. Catheter out at 6am.
5th March Seen by Mr. Synott. Able to void in commode at 16.00hrs.
6th March Voiding freely. Patient very comfortable. Subjectively sensation improved. Large soft bowel motion this am. Passing urine in commode. Repeat ASIA scored showed no deficit and sensation objectively normal. Fit for discharge to Sligo General.
7th March Had diarrhoea. Patient in separate room. Walking better on crutches. Patient very happy she had operation. Patient walking with crutches. No new issues. Mobilising with crutches.
8th March Patient is noted to have said hers leg was “mine again”. Patient happy and discharged.
12th March Patient readmitted to Sligo General. Referred from West Doc with history of one day of faecal incontinence. Clinical note records history of urinary retention, faecal soiling and decreased sensation in left leg. Urgency with bowel motion. Pins and needles right upper leg. Numbness throughout left lower leg. Decreased sensation in the left perianal skin. Impression noted the clinician found no obvious signs of CES. Disc prolapsed L5/S1. On examination anal tone was normal. Reduced sensation on perianal examination on the left side. Urgency ++ on passing bowel motion. Has soiled pants twice. Numb on passing urine and unable to empty bladder. Per rectum examination normal tone.
13th March 00.15 hrs . Patient reported she had been ok after surgery until previous day. One episode of faecal incontinence recorded. Has urinary retention. Pins and needles in left foot. Discussion with registrar in Mater who was not concerned with the patient’s symptoms and was not keen to take her. Doctor in Mater was advised that they could not do an MRI on the patient in Sligo General. He advised patient to remain on bed rest and attend the outpatient’s clinic on Tuesday. Ambulance booked for the following morning to take plaintiff to Mater appointment. Referral letter for Mr. Synott is prepared recording patient’s symptoms.
14th March Patient transferred to Mater by ambulance from Sligo with catheter in situ.
Patient seen in Mater. Complaint of difficulty passing water. Query faecal incontinence (watery) . Reduced L. perianal sensation and left L5/S1. Normal anal tone. Attempted to pass urine without success. Abdominal pain +++. Cannot pass urine. Patient advises that intermittent catheters were being passed when in Sligo. 1200ml urine drained. Needs repeat MRI. On return to Sligo General: Letter prepared to request MRI in Beacon with direction that results be sent to Mr. Synott.
15th March Sligo General makes contact with Beacon to get an open MRI. Referral letter written. Appointment for the 16th March, 2006, at 10a.m. Further letter written to Mater asking if the patient could be reviewed by Mr. Synott after MRI.
16th March MRI carried out in Beacon showing mass impinging on central canal consistent with disc recurrence. Seen thereafter at Mater. Admitted for recurrence of leg pain, difficulty voiding and bowel dysfunction. Pain improved but increased incontinence, bowel dysfunction, retention and numbness in the perianal area. For laminectomy Monday.
17th March Laminectomy carried out in evening. Operation note. Diagnosis: Lumbar disc displacement. Findings: residual disc fragment. Procedure noted as retrievable of extruded disc fragment. Preoperative assessment notes cauda equina syndrome.
3rd April Discharged to rehab.
The Judgment
18. I have decided that for the purposes of this judgment I will not try to set out a précis of all of the evidence heard as to do so would be an enormous undertaking given that the period under scrutiny is so extensive. I will, however, briefly summarise the more significant aspects of the evidence of the expert witnesses in relation to the liability issue with the exception of their views as to the care afforded to the plaintiff during her first and second period of hospitalisation i.e. 9th – 16th December, 2005, and 5th – 7th February, 2006. In respect of these periods the plaintiff’s experts were not sufficiently ad idem such that the Court could reasonably conclude that the standard of care afforded to her fell below that which was acceptable. However, it is of course the case that when considering the standard of care afforded to the plaintiff during her subsequent periods of hospitalisation, her symptoms and the results of investigations carried out during these earlier periods are relevant. In this respect, the plaintiff’s experts considered the following matters particularly relevant, namely:-
(i) the increased severity of the plaintiff’s back pain post the 16th December, 2005;
(ii) the findings of the CT scan of the 14th December, 2005, which reported a recurrent central disc at the L4/5 level and advised that an MRI scan to clarify these findings be obtained;
(iii) the bilateral nature of her symptoms and her significantly reduced straight leg raising capacity on the 5th February, 2006; and
(iv) her complaints of difficulty passing urine secondary to back pain on admission to Accident and Emergency on the 5th February, 2006.
19. In reaching my conclusions in respect of liability I have applied the test set out by Finlay C.J. in Dunne v. Holles Street Hospital [1989] I.R. 91 which is follows:-
“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications.
3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for the decision as to whether a particular medical practice is or is not general and approved within the meaning of these principles, that issue must in a trial held with a jury be left to the determination of the jury.”
20. Insofar as expert testimony is concerned the Court heard evidence on the plaintiff’s behalf from Mr. Richard Coombs, Consultant Orthopaedic Surgeon, Mr. Donal Campbell, Consultant Neurosurgeon, Mr. Ronald Miller, Consultant Urologist, Mr. Raymond Victory, consultant anaesthetist, Dr Mary McGuire, Consultant Psychiatrist and Mr. R. D. Illingworth, Consultant Orthopaedic Surgeon. On behalf of the defendants, the Court had the benefit of expert testimony from Mr. Ciaran O’Rourke, Consultant Orthopaedic Surgeon, Mr. Ronald Granger, Consultant Urologist, Prof. Ciaran Bolger, Consultant Neurosurgeon, Mr. Michael Grevitt, Consultant Spinal Surgeon and Mr. Eadhbhard Mulligan, Consultant Colorectal Surgeon. In addition to these expert witnesses, the Court also heard evidence from the plaintiff herself and from her general practitioner, Dr. Mulligan. On the defendants’ behalf, the Court heard evidence from Mr. Brendan Healy, Consultant Orthopaedic Surgeon and Mr. Keith Synott, Consultant Orthopaedic and Spinal Surgeon, who gave evidence as to the care provided to the plaintiff during her respective periods of hospitalisation at Sligo General and the Mater.
Cauda equina Syndrome
21. Having heard a substantial amount of evidence concerning the condition known as CES, I believe it may be helpful, in the context of this judgment, to set out a small amount of what I think is relatively uncontroversial information regarding this condition, its nature, signs and symptoms. CES is caused by compression of the multiple sacral and lumbar nerve roots in the lumbar vertebral canal known as the dura. CES is a rare and potentially devastating condition. It can present in an acute fashion following disc herniation when the symptoms of perianal sensory loss and sphincter disturbance will be present with almost immediate effect making its diagnosis relatively straightforward. In the alternative, CES may develop insidiously in the presence of back pain with the progressive development of a range of symptoms which may include urinary retention or incontinence, sensory deficit or weakness in the leg, absent ankle jerk and objective reduced perianal sensation or rectal tone. During this period of time when CES is incomplete, the condition is often referred to by the nomenclature of CESI. When the condition deteriorates the patient may develop urinary retention and lose executive control of the bladder or bowel and at this point the patient is often described as having CES with retention or CESR. A patient may also develop CESR in an acute fashion as opposed to reaching that condition by way of progression from CESI.
22. The expert witnesses in these proceedings were all agreed that when CES or CESI is suspected, a full neurological examination is warranted and this includes an assessment of the patient’s perianal sensation and anal tone. An MRI scan or myleogram can be of assistance in assessing the extent to which the cauda equina may be compromised by a prolapsed disc and in the presence of perianal sensory loss and sphincter disturbance will allow the diagnosis be completed.
23. There are a number of what are called red flag signs which warn clinicians of the possible onset of CES and which indicate they may require referral for specialist advice and these are:-
(i) the development of bilateral sciatica;
(ii) tingling and/or numbness in the saddle area; and
(iii) problems with urinary retention or incontinence.
Because the effects of CES can be devastating, it is essential that the relevant signs are recognised and acted upon before permanent nerve damage occurs.
24. Medical opinion is far from universal or agreed as to the point at which surgical intervention is mandated in cases of CESI and CESR. The medical literature and expert evidence would suggest that most clinicians would advise that surgery in either case should be carried out within 48 hours of the plaintiff’s presentation. In cases of CESI, the consensus for early intervention is much greater than in cases of CESR where the damage to the bladder may at that stage be beyond recovery regardless of surgery.
25. In the present case, one of the conclusions the Court is asked to reach is that there was a failure on the part of Sligo General, during the plaintiff’s third period of hospitalisation, to pay attention to the red flag signs of CESI and that had they not failed in this regard, the plaintiff would have had an emergency MRI scan followed by immediate surgical intervention which would have led to either a full recovery or one which was substantially better than that which ultimately occurred.
Third Period of Hospitalisation: 10th – 26th February, 2006
26. The two most significant criticisms made by the plaintiff’s experts regarding her care over this period were that there was an unacceptable delay in (i) obtaining an MRI scan or some other test capable of determining the extent to which the plaintiff’s cauda equina might be compressed by a central disc prolapse having regard to signs which they maintained potentially flagged the presence of CESI and (ii) transferring the plaintiff to the Mater for emergency evaluation and surgery having regard to the MRI scan of the 20th February, 2006.
27. The plaintiff’s experts told the Court that an urgent MRI scan was warranted regardless of any difficulties due to the plaintiff’s size, feelings of claustrophobia or the unavailability locally of an MRI scanner. From the CT scan of the 14th December, 2005, it was known that the likely cause of her problems was a L4/5 central disc. On admission to the Accident and Emergency on the 5th February, 2006, the plaintiff was having difficulty passing urine secondary to pain. By the 10th February, 2006, she was complaining of significantly increased pain, bilateral leg symptoms and had reported having had difficulty passing urine over the previous three days. These symptoms, according to Mr. Coombs, warranted that an MRI scan be arranged on an urgent basis having regard to the risk that the plaintiff might be developing CES. Mr. Campbell took the 12th February, 2006, as the date upon which the plaintiff had what he described as a full house of red flags warning of the possible onset of CES. Accordingly, at the latest, the MRI should have been carried out by the 16th February, 2006. Mr. Illingworth advised that by the 12th February, 2006, the plaintiff’s doctors ought to have been concerned to rule out the potential development of acute CES and that the scan should have taken place at the latest on the 15th or the 16th February, 2006. He further advised that at all times during this period she should have been carefully monitored for the signs of evolving CES and that this had not occurred.
28. On the plaintiff’s behalf it was urged that the record keeping and the communication between the nursing and medical staff was deficient in that inadequate regard had been paid to the plaintiff’s ongoing urinary complaints and in particular her difficulties when passing urine on the 10th February, 2006, her apparent incontinence on the 11th February, 2006, and her symptoms of retention on the 11th and the 12th February, 2006. Likewise it was maintained that inadequate attention had been paid to her report on the 14th February, 2006, that she had not felt her bowel moving the previous day. Taking these factors into account and placing them against the plaintiff’s history of severe ongoing back pain, the results of the CT scan, the neurology found on examination, the plaintiff maintained that the MRI scan, which had been booked as a non-urgent investigation for the 20th February, 2006, should have been expedited. In particular, they advised that excessive emphasis had been placed upon the results of certain rectal examinations that had been carried out and concluded that having regard to her other symptoms the plaintiff should have been treated as a patient at risk of CES until imaging proved to the contrary.
29. The plaintiff’s experts maintained that it was wholly unacceptable that the plaintiff did not have her MRI scan until the 20th February, 2006. They told the Court that had there been any difficulty in procuring the hospital’s consent to the procedure or with the availability of an open scanning machine, as an alternative a myleogram or like investigation could have been carried out by an anaesthetist in the hospital to check on the extent to which her cauda equina might be compromised. They said it was their belief that any hospital with an open scanner, if advised of a patient with signs of evolving cauda equina syndrome, would likely be in a position to offer an emergency scan. Similarly, they believed that even if financial approval had to be obtained for such a scan that the same would always be forthcoming once the consultant stressed the seriousness of the condition under consideration.
30. In relation to her care after the MRI was obtained on the 20th February, 2006, the plaintiff’s experts roundly condemned the failure of Sligo General to ensure that the plaintiff was transferred to a specialist unit for assessment within 48 hours. They each gave evidence that her referral letter to the outpatient department of the Mater on the 28th February, 2006, was unacceptable having regard to the MRI films which had been returned with the patient to Sligo General on the 20th February, 2006. Mr. Campbell described the referral letter as “incredible” in the context of the plaintiff’s clinical history and presentation and referred to a number of inaccuracies in the letter. Assuming that the word “no” was omitted from the letter as governing the phrase concerning the presence or absence of CES features, Mr. Campbell said he would fail any student who did not make a diagnosis of CES based on the plaintiff’s symptoms as documented on the 21st February, 2006.
31. While the plaintiff’s symptoms were waxing and waning over this period of hospitalisation, surgical evaluation and decompression was, according to the plaintiff’s experts, mandatory. Overall, Mr. Coombs felt the patient should have been transferred to a spinal unit within 48 hours of the 12th February and operated on within 24 hours. Mr. Illingworth was of the view that if the plaintiff had had her MRI scan by the 15th or the 16th February, 2006, that she should have had her surgery by the 18th February, 2006. Mr. Campbell advised that having regard to the availability of the MRI films on the 20th February, 2006, that the plaintiff ought to have had a wide laminectomy on the 21st February, 2006, as at that stage she was developing CES.
32. In relation to this period of care, each of the plaintiff’s experts criticised as unacceptable the approach of the plaintiff’s doctors to her evolving condition and in particular condemned the fact that they appeared to rule out potential CES on the 14th February, 2006, based upon a rectal examination which revealed normal anal tone and for thereafter having failed to monitor her urinary and bowel sphincters for sensitivity and motor function.
33. The defendant’s experts told the Court that following the plaintiff’s admission to hospital on the 10th February, 2006, a full neurological examination was carried out and that there were no signs or symptoms at that stage to give rise to concerns regarding the potential onset on CES. She had no faecal or urinary incontinence. Her symptoms of severe back pain and decreased sensation in the left lower limb and over the dorsum of the foot were in keeping with what might be expected in the case of a lumbar disc prolapse. The reasonable assumption, given that on examination the plaintiff had normal anal tone and perianal sensation, was that the clinicians were dealing with an uncomplicated lumbar disc prolapse.
34. The Court was told that the plaintiff’s urinary and bladder difficulties, which included an incident of bed wetting and an episode of urinary retention, were adequately investigated and were not indicative of the onset of CES. Each of the defendant’s expert witnesses stressed that urinary retention was common for patients in severe back pain and there was no doubting from the drug regime prescribed for the plaintiff that she had unbearable back pain. Further, her retention was painful which demonstrated that there was no interference with the sacral nerves which are implicated in CES. The defendant’s experts explained the fact that the plaintiff’s urinary retention was temporary and that after her catheter was removed on the 13th February, 2006, that she had no further episode of retention and continued to void freely until her discharge on the 26th February, 2006. Prof. Bolger explained to the Court that this meant that she continued to have motor and sensory control over her bladder. He stated that the symptoms of CES are not intermittent and do not wax and wane. Accordingly, if the patient’s bladder or bowel had been compromised as a result of an evolving CES over the period when she was noted to have urinary and bowel difficulties between the 11th and the 13th February, 2006, the fact that these resolved meant they should not be considered symptomatic of CES. In this case the clinicians were entitled to assume the retention was an isolated event due to pain.
35. The defendant’s experts were satisfied that the plaintiff’s symptoms including her urinary symptoms and a complaint that she had not felt her bowel moving on the 13th February, 2006, had been fully addressed by the examinations carried out on the 14th February, 2006. In particular, Mr. Sherazi had carried out a full neurological examination in the course of which the plaintiff was noted to have normal anal tone, normal squeeze and normal perianal sensation thus evidencing no deterioration from her earlier examination on the 12th February, 2006. Mr. Grevitt told the Court that the numbness in the left buttock recorded in the course of this examination, whilst a new development, was not part of the profile of a patient with CES but was a standard sign of what might be expected in a patient with sciatica. It was not evidence of saddle anaesthesia.
36. Having regard to the fact that the patient had no further complaint regarding the function of her bowel and had no signs of ongoing retention after the neurological examination of the 14th February, 2006, there was no trigger to justify the carrying out of any further rectal examination. Rectal examinations, the Court was advised, were distressing and upsetting for patients and are not routinely carried out in the absence of some triggering event.
37. All of the defendant’s experts were agreed that an emergency MRI was not warranted during this period. However, in light of the fact that the patient was now a likely candidate for early surgical intervention, an early MRI scan was warranted with a view to obtaining relatively prompt specialist review. Mr. O’Rourke said that it was reasonable to have procured the MRI scan by the 20th February, 2006, having regard to the prevailing administrative difficulties, the need to obtain access to the only open MRI scanner in the country because of the plaintiff’s size and also having regard to her problems with claustrophobia.
38. Finally, the defendant’s experts concluded that it was reasonable, in the context of the findings on the MRI which was reported on the 22nd February, 2006, for those in charge of the plaintiff to have arranged for her to be reviewed by Mr. Synott at his spinal clinic in the Mater on the 28th February, 2006. They voiced no criticism of the content of the referral letter sent to the Mater with the patient or of the fact that the patient had been discharged home on the 26th February, 2006, following a period of pain management to await her outpatient appointment.
Conclusions
39. Prior to hearing the evidence of Mr. O’Rourke, Mr. Grevitt and Prof. Bolger, I have to say that I thought it would be difficult for the defendants, via their expert testimony, to convince me that those in charge of the plaintiff’s care when she was in Sligo General between the 10th and the 28th February, 2006, were not negligent in failing to ensure that:-
(i) she was investigated by way of MRI scan, at latest by the 16th February, 2008; and
(ii) thereafter transferred to the Spinal Unit of the Mater Hospital thereafter with relatively immediate effect.
However, is all too easy with the benefit of hindsight to take a list of the most frequently presenting symptoms experienced by patients who go on to develop CES and then to assemble from the medical and nursing notes a list of all of the plaintiff’s symptoms over this period of her hospitalisation and jump to the conclusion that the care afforded to her by her clinicians fell short of the standard expected of them. The Court must do something quite different. It must consider the standard of care afforded to a plaintiff’s by assessing the appropriateness of any decision or alleged omission on a prospective basis taking into account her history up to that point including the significance to be attached to any improvement or deterioration in her presentation and the results of any tests available at the relevant time.
40. I am satisfied that when the plaintiff returned to Sligo General on the 10th February, 2006, having earlier discharged herself on the 7th February, 2006, with the history which is recorded in the clinical records that there was an obligation on those in charge of her care in Sligo General to conduct a full medical review of her condition. In this regard, I am satisfied from the evidence of Mr. Healy and the contents of the hospital records, that the plaintiff was fully assessed, bearing in mind the possibility that she might be developing CES. In the course of that examination the appropriate questions appear to have been asked of the plaintiff regarding her bladder and bowel function and inquiries made of her as to the presence of symptoms of perianal and/or vaginal numbness. Further, her history of having had difficulty passing urine for three days prior to her admission was clearly noted.
41. I accept the defendant’s evidence that based on the findings of the examination of the 10th February, 2006, that the plaintiff was appropriately managed when she was admitted for observation, bed rest and pain management pending the results of an open MRI examination that was to be arranged for her the following Monday. While the plaintiff was found to have had reduced bilateral straight leg raising (“SLR”), reduced power on the left side, a history of difficulty passing urine for several days and was clearly in very significant pain, all of which can be part of an evolving CES, I accept the defendant’s evidence that these clinical findings were much more likely to reflect a straight forward disc prolapse without compression of cauda equina and did not mandate emergency intervention by way of MRI or surgical referral having regard to the findings on rectal examination that she had normal sensation, anal wink and tone.
42. As to the plaintiff’s complaints that her condition deteriorated post her admission on the 10th February, 2006, such that by the 14th February, 2006, she had a full house of red flags warranting an emergency MRI scan and specialist review, I reject this submission. It is undoubtedly the case that the plaintiff had significant and worrying symptoms on the 11th February, 2006, when she had a palpable bladder as a result of urinary retention which was clearly established by the amount of urine which she passed following her catheterisation. She also appears to have unconsciously wet the bed, a further urinary symptom of concern vis a vis the possible onset of CES. I am satisfied from the evidence that had the plaintiff’s retention persisted then clearly an emergency MRI would have been warranted but the fact of the matter is that the plaintiff had no signs of ongoing retention beyond the 14th February, 2006, and this being the case it was appropriate for the plaintiff’s clinicians to ascribe her retention to pain and to conclude that her MRI scan was not required as a matter of emergency. I accept the defendant’s evidence that it was reasonable to arrange such a scan on a prompt basis. The reasonableness of that decision seems to be borne out by the fact that after the catheter was removed on the 13th February, 2006, the plaintiff appears, from the records, to have had relatively normal bladder function until the date of her discharge on the 26th February, 2006. Further, there are notes in the nursing records which demonstrate that the clinicians were monitoring the plaintiff’s ability to void and that she was using the bed pan, the commode and the toilet up to the date of her discharge without much difficulty. I recognise that there is a note of the 15th February, 2006, which indicates that the plaintiff expressed concern that when she had the urge to pass urine that she initially could not go and later would expel a large amount of urine. However, with the exception of this note there is no further evidence of retention. In this regard, I should state that I do not accept the plaintiff’s assertion that a catheter should have been passed after this initial episode of painful retention to ensure that her position had resolved in light of the evidence as to her bladder function. I do not believe that it would have been standard practice to have done so.
43. It was clearly the obligation of the plaintiff’s clinicians to monitor her urinary symptoms and urinary function because of the potential risk of CES and I am satisfied that they complied with their responsibility in this regard. The medical records for the 12th February, 2006, demonstrate that Dr. Ahmed advised that the plaintiff should be catheterised because of her retention. Further, the nursing note of the 13th February, 2006, records that “the team” advised the patient that the catheter had to be removed. It is clear that the medical team looking after the plaintiff were aware of her difficulties regarding retention and that the nursing staff kept the medical staff appraised of any ongoing difficulties.
44. I accept the plaintiff’s expert evidence that her complaint on the 14th February, 2006, made to the orthopaedic registrar that she had not felt her bowel moving the previous day, in the context of all of her other symptoms, was such that her clinicians ought to have been concerned that this could be a sign of the possible onset of CES. In this context, I am satisfied from a review of the medical records for the 14th February, 2006, that the possibility of CES was at the forefront of the minds of those charged with the plaintiff’s care. The opening line of the physiotherapist’s note, which immediately precedes that of Mr. Sherazi for the 14th February, 2006, refers to “query S4 symptoms”, S4 being the level of the sacral spine material to the nerves which supply sensation to the saddle area. It is clear from the content of this note and that of the nursing staff of 19.30 hrs, where it is noted “no evidence of cauda equina as per Mr. Sherazi”, that due consideration had been given in the course of the day to the need to question the possibility that the patient might be demonstrating symptoms of CES.
45. I am satisfied that the appropriate response to the plaintiff’s symptoms as of the 14th February, 2006, was for her clinicians to carry out a full neurological examination. I also accept the evidence of the defendants that the findings of that examination were not such as to warrant the MRI scan, which at that stage had been booked for the 20th February, 2006, to be expedited on an emergency basis. In relation to the significance of the findings of this examination, I prefer the evidence of the defendant’s experts. While the plaintiff clearly was experiencing significant pain to the point that she was unable to stand up or mobilise, I accept the defendant’s evidence that there is no correlation between pain and the risk of compression to the cauda equina and that patients with a disc prolapse will experience widely varying degrees of pain. The new complaint of numbness in the left buttock, I accept was not significant as it is a common symptom of sciatica caused by disc prolapse and is not evidence of saddle anaesthesia. The finding as to the slightly reduced power in the left leg was no different to that which the plaintiff had had since her first visit to Sligo General in December, 2006 and somewhat confusingly she had reduced sensation on the left side at dermatomes above those which were of relevance when considering cauda equina syndrome i.e. L2 – L4. In particular, I accept the evidence of the defendant’s experts that the fact that the patient had normal anal tone, normal squeeze and normal perianal sensation ruled her out as a patient who needed to be treated as a medical emergency in terms of either investigation or specialist review.
46. I reject the evidence of the plaintiff’s experts that, regardless of the examination of Mr. Sherazi of the 14th February, 2006, that the plaintiff should have been treated as if she had CESI until such a time as this was disproved by MRI scan and/or specialist review. On this issue, I prefer the defendant’s evidence to the effect that it would simply be impossible to operate a medical system if every patient with symptoms and findings akin to those of the plaintiff on the 14th February, 2006, had to be treated as if they had CESI mandating the procurement of an emergency MRI scan and/or immediate specialist review. I am satisfied that the defendant followed what was a generally approved practice at the time of ensuring that the patient, who by now was a likely candidate for surgery, would have a relatively prompt MRI scan followed by specialist review.
47. My only concern regarding the examination carried out by Mr. Sherazi is that it is not clear whether or not at the time of his examination he was made aware of the fact that the patient had involuntarily urinated in the bed on the 11th February, 2006. However, even if he had been made aware of this fact, I do not believe that his knowledge of the same would have warranted him altering his management of the plaintiff. He clearly inquired of the plaintiff as to whether she had any symptoms of bowel or bladder incontinence as of the 14th February, 2006, and she replied in the negative. Further, the catheter had been removed the previous day and she was noted to have been using the bed pan on request.
48. In the light of the fact that an MRI scan was arranged for the plaintiff for the 20th February, 2006, I accept the defendant’s evidence that the patient’s management as between the 14th February, 2006, and the date of her MRI examination was acceptable. It is clear from the clinical and nursing records that the plaintiff’s bladder function was being carefully monitored and from a bowel perspective there is no suggestion that she had any recurrence of the feelings she had expressed on the 14th February, 2006, regarding a lack of sensation on the movement of her bowel the previous day. The plaintiff appears to have been kept under close medical review by the orthopaedic team and nothing happened over this period which would suggest that her condition had deteriorated. The objective findings on examination remained the same; she had an improvement in the irritability of the nerve root on the left side and improved straight leg raising on the 17th February, 2006. Also, the plaintiff experienced an improvement in her overall level of pain with the introduction of neurontin. The numbness in her buttock remained but I am satisfied that this was not a sinister finding in the context of CES.
49. In respect of the period between the 14th and 20th February, 2006, I accept the defendant’s evidence that having regard to the plaintiff’s symptoms there was no basis for carrying out any further rectal examination. I am satisfied that examinations of this nature are distressing for the patient and are only carried out if triggered by some unusual or worrying finding such as ongoing or worsening sphincteric disturbance. I also accept the defendant’s evidence that after the examination of the 14th February, 2006, it was unnecessary to pass a catheter after the plaintiff had urinated in order to establish whether or not she was in urinary retention. I am satisfied that if her retention on the 12th February, 2006, had been due to the presence of compression to the sacral nerves, as would occur in CES, then those nerves would not have subsequently recovered and that she would have gone back into retention after the catheter had been removed. It is clear from the records that this did not occur.
50. As to the manner in which the patient was treated between the 21st and the 28th February, 2006, I am also satisfied that the plaintiff has not established negligence on the part of Sligo General over this period. It may well be the case that in circumstances where the original MRI films came back to Sligo General with the patient on the 20th February, 2006, and these showed the presence of a large central disc that a more urgent approach to the plaintiff’s might have been preferable. However, I accept the defendant’s evidence that the arrangement made by Sligo General whereby immediate contact was made with the Mater and an appointment made to have the patient seen on the 28th February, 2006, was well within what was acceptable practice for a patient with the plaintiff’s condition and history. Notwithstanding the criticisms made by the plaintiff’s experts I am satisfied that it was reasonable to keep the patient in Sligo and to treat her pain with an epidural and to discharge her home on the 26th February, 2006, with an appointment to attend at Mr. Synott’s clinic on the 28th February, 2006. As a matter of fact I accept the defendant’s evidence that over that period the patient did not demonstrate any deterioration in her condition which would be significant from a cauda equina point of view. She had no obvious signs of retention, be it painful or otherwise, and had no event which might suggest that the nerves supplying the bowel were compromised by compression. Indeed, the plaintiff appeared to get some benefit from the epidural, albeit that it was temporary and that there was disagreement between the respective experts as to the appropriateness of this type of treatment.
51. While there was much criticism by the plaintiff’s experts about the referral letter sent to the Mater by Mr. Khan, Orthopaedic Registrar on the 21st February, 2006. I believe that that letter had no impact on the patient’s subsequent management even if I was to take the view, which I do not, that it was inaccurate in any material respect. The letter may have been relevantly minimalist in its content but I don’t believe there was an obligation to set out the entirety of the plaintiff’s varying symptoms over this period of her hospitalisation. By the time the letter was sent the appointment for the patient to be seen on the 28th February, 2006, had already been made. Also, Mr. Synott told the Court that he would not be influenced by the content of a referral letter when deciding if and on what basis a patient required surgery. In making that decision he would rely principally on the MRI scan, the findings on clinical examination and the history and symptoms as outlined by the patient. In relation to this letter the parties agreed that it had been the writer’s intention to state that the patient had no CES symptoms. This being so, I accept Mr. Grevitt’s evidence and that of Prof. Bolger that at the time the letter was written the plaintiff had only one of the three pillars of CES namely the presence of a large disc and that the letter was accurate vis a vis the plaintiff’s condition at the time it was written.
52. Lastly, because I am satisfied that the urgency contended for by the plaintiff over this period of time did not exist, I do not feel it is necessary for me to consider the allegation concerning the failure on the part of the clinicians in Sligo General to arrange for a myleogram to be carried out on the plaintiff in circumstances where the only MRI scan suitable to the plaintiff’s needs was in Dublin.
28th February – 3rd March, 2006
53. Mr. Coombs, Mr. Campbell and Prof. Illingworth each gave evidence that in their opinion, the failure on the part of the Mater to ensure that the plaintiff had surgical intervention as a matter of grave urgency following her assessment on the 28th February, 2006, fell short of the standard of care to be expected in what is the national spinal unit. Having regard to the patient’s clinical history, her MRI scan and the physical findings on examination, they were all agreed that barring an emergency case of greater importance to that of the plaintiff, she should have been operated upon within 24 hours. Having had sight of the operating lists for the 1st, 2nd and 3rd March, 2006, the plaintiff’s experts were almost ad idem in concluding that her surgery was not given the priority which it should have been afforded having regard to the other scheduled surgical procedures over that period. With the exception of possibly two other cases, the balance of the surgery carried out over this period appeared to be of an elective nature and they each felt there was no justification for the plaintiff’s surgery being postponed beyond the 1st March, 2006.
54. On the defendant’s behalf Mr. O’Rourke Mr. Grevitt and Prof. Bolger were all of the opinion that when the plaintiff was first seen at the Mater on the 28th February, 2006, she did not have symptoms sufficiently acute to mandate emergency surgical decompression even if Mr. Grevitt was of the opinion that the patient had symptoms suggestive of CESI. However, they accepted that she required relatively urgent surgery. Having regard to the plaintiff’s apparently relatively stable clinical profile over the 1st and the 2nd March, 2006, they felt that there was no unacceptable delay in the surgery which was ultimately performed on the evening of the 3rd March, 2006. The defendant’s experts accepted that the plaintiff’s condition deteriorated on the 2nd March, 2006, when her rectal tone was noted to be decreased. At that stage, they were agreed that the plaintiff required urgent surgical intervention which she duly received the following day.
Conclusion
55. In coming to my conclusions on the standard of care afforded to the plaintiff over this period I considered carefully all of the expert evidence and also that of Mr. Synott who I have to say impressed me as a witness. I believe he made every effort to give a straightforward account of the care which she had received when in the spinal unit of the Mater. He did not feign a recollection of his engagement with the plaintiff but gave his evidence relying principally on the entries in the hospital chart and what his standard practice was at the time.
56. I accept Mr. Synott’s evidence and that of Mr. Grevitt, Mr. O’Rourke and Prof. Bolger that the plaintiff did not require emergency surgery following her admission on the 28th February, 2006, but that she did require relatively urgent surgical intervention because she had signs which indicated that she was at risk of acute CES and also for humanitarian reasons given that she was experiencing ongoing significant pain. I accept Mr. Synott’s evidence that if, on the day of her admission to the Mater, she had had evidence of loss of anal tone and was incontinent that he would have operated that evening.
57. Having considered the evidence as to the plaintiff’s condition between the 28th February, 2006, and the 2nd March, 2006, the difficulty in getting urgent cases into operating lists and the risks that pertain to emergency out of hours surgery, I accept the defendant’s evidence that it was reasonable to plan to operate on the day following her admission at the end of Mr. Poynton’s list, if theatre time was available. Mr. Synott told the Court that his routine surgery list was on a Monday and Mr. Poynton had the theatre every Wednesday. Prof. McCormack and Prof. Stephens had the theatre on a Thursday, i.e. the 2nd March, 2006. I accept Mr. Synott’s evidence that merely because a patient is put on an emergency list does not mean that the surgeon believes that they need emergency surgery. It is just that if they are not put on such a list there is little chance of them getting to theatre. If they are not on the urgent list they will not be seen by the anaesthetist; then if a slot becomes available in theatre and that assessment has not taken place, the operation will not proceed. Hence, it is easier and in the best interests of the patient that their name be put on the emergency list even if it is considered unlikely that there will be time available for that surgery within the schedule for the day. It is easier to put the patient on a list and then take them off than to try to get them on in the event of a space becoming available.
58. I am satisfied from Mr. Synott’s evidence that he saw the plaintiff at 17.00 hrs on Wednesday, the 1st March, 2006, and that it had become impracticable to operate on her that day because of the length of Mr. Poynton’s list. I accept his evidence that he had been in his outpatient clinic that afternoon and if time had become available he would have carried out the plaintiff’s surgery that day. I am also satisfied that having seen the patient, he was of the opinion that she had not deteriorated and it was reasonable therefore to postpone her surgery. I accept that in circumstances where it became impracticable, for a range of considerations, to operate as planned on the 1st March, 2006, that it was reasonable in the first instance to postpone her surgery until the following day and later until the 3rd March, 2006, because of another emergency case which required theatre space on the 2nd March, 2006. Further, it appears to me from the medical records that during this period the plaintiff was closely monitored such that when her condition deteriorated on the 2nd March, 2006, when her anal tone was found to be decreased, she was operated upon as an emergency the following evening.
59. Having regard to all of the aforementioned circumstances I cannot find the defendants negligent in respect of their management of the patient between the 28th February, 2006, and the 3rd March, 2006.
The Surgery Performed by Mr. Synott
60. Mr. Coombs, Mr. Campbell and Prof. Illingworth told the Court that the surgical approach adopted by Mr. Synott, namely a hemilaminectomy in the course of which a small part of the left lamina was removed, was unacceptable having regard to the presence of a large central disc and CES. What was required was a wide laminectomy, a procedure which involves the removal of the spinous process and both laminae. These structures were described by various witnesses as being a bit like a chimney (the spinous process) with two adjacent roofs (the laminae) wherein the attic houses the cauda equina. In cases of CES, the cauda equina is forced upwards in the attic space against the roof and chimney by a big protrusion (the sequestered disc) pushing up from below. The plaintiff’s experts told the Court that the field of vision required by a surgeon to ensure, firstly the removal of the entirety of the disc and secondly the complete decompression of the cauda equina, mandates the removal of all these structures. They stated that the surgical approach adopted by Mr. Synott was substandard in that the procedure he adopted involved only the creation of a small window in the left lamina making it unlikely that he could achieve these objectives. Mr. Campbell told the Court that if you try to remove a large sequestered disc by this method you risk damaging the nerves while trying to pull them back to access the disc and haul it out through a limited space. While Mr. Campbell did not say it was impossible to remove a large central disc using a unilateral approach without removing the spinous process he stated that a wide laminectomy was warranted to ensure that the appropriate decompression was achieved. Mr. Illingworth stressed that there is no access to the right side of the cauda equina using the method adopted by Mr. Synott and that he could not therefore have satisfied himself that he had fully decompressed the dura on the right side. The plaintiff’s experts supported their opinion on this issue by referring to the fact that Mr. Synott, when he operated on the plaintiff for the second time on the 17th March, 2006, had, they believed, performed a laminectomy. They also relied upon an article published in 2000 and authored by Scott Shapiro M.D. which analysed 44 cases of cauda equina syndrome in which all but one patient had been operated upon by way of a laminectomy.
61. The plaintiff’s experts also advised the Court that in their opinion, the surgery which Mr. Synott had carried out fell short of the required standard in that he allegedly did not remove the entirety of the prolapsed disc which would have been easily visualised had he carried out a laminectomy. The consequences of his failure to remove the entirety of the sequestered disc was that residual disc material was left in the spinal canal where it continued to compress the nerves supplying the bowel and bladder and ultimately caused the acute symptoms which were present when the plaintiff represented to Sligo General on the 12th March, 2006.
62. The plaintiff’s experts were all agreed that Mr. Synott had removed some disc material but probably only that part of the disc that was encroaching upon the nerve root on the left side. They relied upon the operation note in respect of her subsequent surgery of the 17th March, 2006, which refers to the fact that a “residual fragment” was removed, the report of the consultant radiologist in relation to the findings of the MRI scan carried out on the 16th March, 2006, the plaintiff’s postoperative medical records and her discharge summary dated the 3rd April, 2006, in support of this proposition. The plaintiff also relied upon the operation note of the 17th March, 2006, which referred to the retrieval of a “residual extruded disc fragment” but made no mention of the possibility that the plaintiff had experience a recurrent disc prolapse.
63. Mr. Campbell, in particular, felt that Mr. Synott had not been anywhere near the central disc and that he had merely incised the annulus and taken out a bit of degenerative disc material sitting on the L4/5 nerve. Indeed the thrust of the plaintiff’s expert evidence was that, having regard to the surgical technique deployed and the content of the operation note, Mr. Synott did not appear to have been focused upon the fact that his patient was suffering from CES as a result of a large central disc but was somehow lulled into believing that he was operating on a patient with a standard disc prolapse compromising the left nerve root at L4/5.
64. The plaintiff’s experts stated that it was impossible to construe the plaintiff’s medical records over the postoperative period as evidence supporting Mr. Synott’s contention that he had managed to remove all of the disc material which had been compressing the cauda equina. They referred to the fact that the plaintiff had some postoperative urinary retention, bowel disturbance as well as significant ongoing pain and reduced muscle power. Insofar as the defendants sought to rely upon the plaintiff’s improved left leg function, they stated that such improvement was to be expected given that disc material which had been pressing upon the left nerve root had been removed during the surgery. It was, in their opinion, the quantity of opiates that the patient was taking and her desire to feel better plus the fact that Mr. Synott had shaved the disc sitting on the L4/5 nerve root that was responsible for any recovery noted.
65. The plaintiff’s experts also refuted the defendant’s contention that the plaintiff had experienced a further disc prolapse following her discharge from the Mater by relying upon the statistical unlikelihood of such an occurrence. They also relied upon the fact that there appeared to be no loss of disc height evident on the MRI scan of the 16th March, 2006, as might have been expected had there been a further disc prolapse. They emphasised the fact that what was seen on that MRI scan was described as being a large prolapse which they felt was unlikely to be a recurrence given that disc material had already extruded from this level previously in 1994 as well as prior to the 3rd March, 2006, making it unlikely that there would be sufficient material left to account for what was seen on the MRI of the 16th March, 2006.
66. On the defendant’s behalf, Mr. O’Rourke, Mr. Grevitt and Prof. Bolger told the Court that as of 2006, the approach adopted by Mr. Synott to the plaintiff’s surgery was entirely appropriate having regard to the preoperative findings. A laminectomy, as advised by the plaintiff’s experts, was not a mandatory approach to a central disc prolapse in the presence of CES. The majority of orthopaedic surgeons in 2005, were, they said, performing the same procedure as that which had been adopted by Mr. Synott, namely a hemilaminectomy in which a portion of the lamina on one side of the spinous process is removed. It was, they said, undesirable to remove the spinous process unless absolutely necessary as to do radical surgery of that nature had long term implications for the stability and function of the patient’s spine. Mr. Grevitt and Mr. O’Rourke explained that it is possible to extend the hemilaminectomy procedure at any stage by removing a greater part of the lamina if the initial window created proves insufficient to effect a complete removal of a disc or decompression of the dura of the spinal cord. Indeed, in the course of his own evidence, Mr. Synott, using a model of the spine and its relevant structures, demonstrated how the bone from the relevant lamina can be surgically clipped away until adequate visualisation and access is obtained such that the central disc can be removed and the epidural space decompressed with relative ease.
67. As for the plaintiff’s assertion that Mr. Synott did not remove the entirety of the offending central disc and failed to fully decompress the dura, the defendant’s experts said that there was simply no proof that he had failed in this regard. Mr. O’Rourke said that it is relatively easy for a surgeon, by probing the dura and visualising its position, to satisfy himself that it has been fully decompressed in that once the disc is removed the dura settles back down into its normal position and is no longer to be seen jammed upwards into the spinal process where it would have been when the surgery commenced. He was satisfied from the operation note that the reference to the surgeon having decompressed the “space” was a reference to the epidural space.
68. In relation to the surgical approach adopted by Mr. Synott the defendant’s experts relied upon an article concerning the treatment of CES by surgical decompression authored by Messrs. Qureshi and Sell, published in 2007 which referred to the varied approach adopted by a number of surgeons when faced with a need to decompress the cauda equina in a case of CES. They were of the view that the evidence of the plaintiff’s experts that a laminectomy was mandatory was somewhat out of date. Each of them said that they had been trained to use the hemilaminectomy approach in such cases, that in practise they had used this technique and were aware that other surgeons of equivalent skill did likewise in similar circumstances.
69. The defendants’ experts all stated that it was not possible, from an evaluation of the MRI scan of the 16th March, 2006, to tell whether the disc material seen in the spinal canal was a fragment of the disc seen in the earlier MRI scan or whether it was new disc material as a result of a further prolapse at the same level. Further, they confirmed that from a visual inspection of what was removed on the 17th March, 2006, it would likewise be impossible to state whether that disc material had been present on the 3rd March, 2006, or whether it was new material. Hence the reference to a “residual fragment” in the operation note of the 17th March, 2006, or the radiologist’s report of the 16th March, 2006, referring to a recurrence was immaterial. The fact that there was no apparent alteration or loss of disc height at the L4/5 level demonstrated on the MRI of 16th March, the defendant’s experts maintained, was irrelevant as changes of that nature take a significant period to manifest after a prolapse. Also, while relapse is relatively infrequent, the annulus which encases the disc is torn in the course of a prolapse and notwithstanding a surgeon’s best efforts when removing a prolapsed disc to ensure that there is no further loose material left behind within the annulus, further disc material can come through that opening. Mr. O’Rourke stated that the risk of a recurrence was at its highest in the weeks following surgery and hence the advice given to patients to curtail prolonged sitting in the weeks following surgery.
70. Mr. Grevitt, Mr. O’Rourke and Prof. Bolger were satisfied from the plaintiff’s clinical progress post the surgery of the 3rd March, 2006, that Mr. Synott had removed the entirety of the offending central disc and had fully decompressed the epidural space. They relied upon the plaintiff’s postoperative ASIA scores in respect of the motor and sensory function of the S2 – S5 nerves, these being the nerve roots relevant to the area compromised by CES. They also referred to the presence of anal tone postoperatively from which it could be inferred that the plaintiff had returned to relatively normal neurological status. This was to be contrasted with the complete change in her clinical and in particular her neurological presentation when seen at Sligo General on the 12th March, 2006.
Conclusion
71. I am satisfied from the evidence of Mr. O’Rourke, Mr. Grevitt and Mr. Bolger that as of 2006 there was certainly a reputable body of surgeons who, when faced with an evolving CES or indeed an acute CES caused by a large central disc prolapse, would elect to remove the disc and decompress the cauda equina by carrying out a laminotomy, discectomy or hemilaminectomy procedure. I accept their evidence that this is an entirely acceptable method of extracting a disc of the nature seen on the MRI scan of the 20th February, 2006. I accept Mr. Synott’s evidence and that of the defendant’s experts that a surgeon taking this approach can continue to remove additional bone from the relevant lamina until such a time as they have adequate access and visualisation of the area concerned. In this regard it was clear from the MRI scan on the 16th March, 2006, that Mr. Synott had made an opening in the left lamina to allow him access the prolapsed disc and to decompress the relevant nerve roots and the epidural space.
72. Insofar as the plaintiff’s experts relied upon the paper by Shapiro et al which contends that a laminectomy is the only acceptable approach for a surgeon faced with a large central disc prolapse and evolving CES and specifically advised against hemilaminectomy, I am satisfied that that paper was a review of historic cases and that surgical techniques for dealing with discs of this nature had become more advanced by the time Mr. Synott operated upon the plaintiff. Indeed the article by Qureshi and Sell (2007), which reviewed a historic cohort of 33 patients with CES, referred to the varied approach of surgeons when faced with the need to decompress the cauda equina. In eighteen cases a laminectomy was performed, six patients were operated upon by surgeons using the hemilaminectomy procedure and in the remaining fifteen cases the even less aggressive interlaminar discectomy was deployed. It is in my view impossible in the light of this article when taken with the defendant’s expert evidence as to their own practice to contend that Mr. Synott’s surgical approach by hemilaminectomy constituted a departure from an accepted and approved practice or was otherwise neglectful of his obligations to the plaintiff.
73. I accept Prof. Bolger’s evidence that he deals with a number of CES discectomies every year and that he has never used the laminectomy procedure for such purpose. Likewise, I accept the evidence of Mr. Grevitt and Mr. O’Rourke that for such cases the laminectomy is now considered a slightly outdated method of dealing with CES. That is not to conclude that to adopt the laminectomy procedure would be unacceptable or that laminectomy does not have its place within surgery. Prof. Bolger told the Court that it is regularly used when a tumour needs to be removed or if for some reason a more aggressive type of surgery is required.
74. It probably should be clarified that when Mr. Synott operated upon the plaintiff on the 17th March, 2006, he did not, as the plaintiff’s experts had initially believed, carried out a wide laminectomy. He did not in fact remove the spinous process but carried out bilateral laminotomies. When questioned as to why he undertook this apparently more radically type of surgical approach on this occasion, he told the Court he did so in order to try to avoid the scar tissue from the earlier surgery. He said that scar tissue tethers the dural sac and makes it less mobile. Hence it made sense to enter on both sides gives him better vision, something he did not need to do in the course of the original surgery.
75. As to the plaintiff’s contention that Mr. Synott performed substandard surgery in that he allegedly failed to remove the entirety of the large central disc or fully decompress the epidural space in the course of the surgery of the 3rd March, 2006, I reject both such assertions. I do not accept the evidence of Mr. Campbell to the effect that all Mr. Synott did was to shave off some small portion of disc material interfering with the L4/5 nerve root or that of the other experts that he seemed, from the operation note, oblivious to the fact that the plaintiff had CES and a large central disc. This was an operation that was conducted by Mr. Synott late on a Friday evening in circumstances where the plaintiff’s condition was known to have deteriorated over the previous 24 hours. It is therefore highly unlikely, I believe, that he somehow was confused or lost sight of the importance of fully removing all disc material that was in the spinal canal and fully decompressing the dura. I also accept his evidence that he would have conducted the surgery with the benefit of the MRI scan of the 20th February, 2006, and would therefore have been fully appraised of the significance of the large sequestered disc which is referred to in the operation note.
76. On the balance of probabilities, I am satisfied that Mr. Synott removed the entirety of the large central sequestered disc in the course of surgery. The fact that the operation note refers to a “large disc” having been identified and removed, I believe supports the defendant’s evidence that the disc probably came out in one piece. I am also satisfied that Mr. Synott would have been conscious of the size of disc material which he was seeking to retrieve having regard to the fact that he carried out the surgical procedure with particular reference to the MRI scan. Also, had the disc not come out in one piece, I accept his evidence that the operation note would probably have recorded the fact that the material had been removed “piecemeal”. Further, I am also satisfied that Mr. Synott in all probability not only freed the left nerve root at L4/5 but also fully decompressed the epidural space. The reference in the operation note to the “space” being decompressed, I believe, was intended to refer to the epidural space even though the word epidural does not appear in the note. I am satisfied that Mr. Synott having come in to do this emergency surgery late on a Friday evening was well aware of the fact that the patient had CES at that point and that as a matter of course, he would have attended to the decompression of the epidural space without which the surgery was bound to fail.
77. In coming to the aforementioned conclusion I have had regard to the fact that the operation note of the 17th March, 2006, refers to the presence of a residual fragment in the canal and that the report of the MRI scan of the 16th March, 2006, also refers to the presence of a residual disc. However, there are a number of things to say about this record. Firstly, the operation note was not written by Mr. Synott himself and I accept his evidence in this regard. Secondly, a surgeon removing a disc fragment cannot tell from its appearance or texture whether or not it was expelled from the annulus only days as opposed to weeks previously. Thus, the note which purports to describe what has been removed as “central residual extruded disc fragment” to my mind is of little evidential value. Indeed this latter operation note is also inaccurate insofar as it suggests that Mr. Synott excised the spinous process at L4 in the course of the surgery on the 17th March, 2006, which is incorrect as is seen on the MRI scan of the 16th March, 2006.
78. I have also considered the evidence adduced on the plaintiff’s behalf which relied upon the patient’s symptoms between the 3rd and the 17th March, 2006, as evidence of ongoing compression on the spinal cord due to the alleged failure on the part of Mr. Synott to entirely remove the offending disc in the course of the first surgical procedure. However, I accept the evidence of Mr. Grevitt that the plaintiff’s ASIA scores over the postoperative period are only consistent with Mr. Synott having achieved a complete decompression of the epidural space. The sacral nerves were noted by a number of different clinicians as functioning normally at this time. The scores for the 6th March, 2006, show full motor function of the long toe extensors at L5 and normal sensation at the S1 dermatome, results which suggest that the epidural space had been decompressed. Further, sensory findings on the 7th March, 2006, at the S1 level were normal and anal contraction, which had been reduced on the 2nd March, 2006, was noted as being present again. Also, the S2, 3 and 4 nerve roots which are responsible for sphincter control were also normal. In these circumstances I believe there is good relatively objective evidence that Mr. Synott removed the entirety of the large central disc which had earlier been compromising the cauda equina and that he decompressed the epidural space.
79. In coming to my conclusion on this issue I have taken into account the fact that the plaintiff was apparently urinating normally with control of the bladder over the postoperative period with the exception of one episode of postoperative retention immediately after surgery. Further, while the plaintiff was noted to have had diarrhoea on one occasion this appears to have been a once off event unrelated to any issue regarding the control of her anal sphincter.
80. In respect of this issue I also accept Mr. Grevitt’s opinion that a surgeon of Mr. Synott’s experience is most unlikely to have left behind a large disc fragment of the nature seen on the MRI of the 16th March, 2006, and that whilst recurrent disc prolapses only occur in about 10% of cases, according to Mr. O’Rourke, I accept the defendant’s evidence that such an event most commonly occurs in the immediate postoperative period. Having regard to Mr. Synott’s evidence and that of Mr. O’Rourke, Mr. Grevitt and Mr. Bolger, I am satisfied that the surgery carried out by Mr. Synott on the 3rd March, 2006 was entirely appropriate having regard to the patient’s clinical history and the objective findings on MRI scanning.
81. Having reached these conclusions, it follows that I accept that the plaintiff, following her discharge from the Mater on the 8th March, 2006, was one of the small percentage of patients who proceeded to have a relapse and that further disc material prolapsed into the spinal canal through the hole in the annulus and that it was this prolapse that caused the onset of the acute symptoms with which she presented on the 12th March, 2006, to Sligo General.
Last Period of Hospitalisation 10th -26th February
12th – 17th March, 2006
82. It is worth briefly recalling in skeletal form what occurred from the 12th to the 17th March, 2006 when the patient was operated on for the second time.. The plaintiff first attended the Westdoc clinic on Sunday the 12th March, 2006. There she gave a one day history of faecal incontinence and this information was later relayed to Sligo General in a referral letter which requested that she have an urgent assessment. She attended Sligo Accident and Emergency Department later that evening where she was examined by the orthopaedic senior house officer (“SHO”) and later the orthopaedic Registrar, Mr. Sherazi.
83. The plaintiff’s wound was oozing, she was unable to empty her bladder completely and was experiencing a sensation of numbness on passing urine. She reported significant urgency on passing her bowel motions and complained of having soiled herself twice. The plaintiff also reported experiencing pins and needles with a loss of sensation over her left buttock and left leg. On examination, she had reduced power and decreased ankle jerk on the left side and as regards sensation she had numbness throughout all dermatomes. Examination also revealed decreased sensation at the left perianal skin but the plaintiff was noted as able to squeeze the sphincter and her anal tone was found to be present. The impression noted by the clinician was that there was “no obvious cauda equina syndrome – disc prolapse L5/S1 root compression”.
84. From the records, it appears that late on the evening of the 12th March, 2006, or perhaps shortly after midnight, Mr. Sherazi made telephone contact with the orthopaedic registrar on call in the Mater, Mr. Dan Canya. It seems that Mr. Canya, presumably based upon the communication to him of most of the findings referred to above, expressed himself unconcerned about the plaintiff’s condition and concluded that she had no new symptoms beyond those which she had experienced postoperatively when in the Mater. He advised that they were not keen for the patient to be transferred back to the Mater and that she should be kept in Sligo General on bed rest and sent to Mr. Synott’s clinic on Tuesday the 14th March, 2006. While the note recording the exchange between the two clinicians makes reference to the difficulty of scanning the plaintiff, it makes no mention of the need for an urgent MRI scan or as to the advisability of trying to obtain such a scan for the plaintiff in the intervening period.
85. On Tuesday the 14th March, 2006, the plaintiff was seen at the Mater at which time she was suffering from painful retention and was catheterised. She had an ooze from her surgical wound and a swab was taken for culture. On examination she was found to have normal anal tone but reduced perianal sensation. The note records a query regarding “faecal incontinence (watery)”. The clinicians felt an MRI was warranted and the plaintiff was sent back to Sligo General with a request that this be arranged after which she would be reviewed in the Mater. The following day Sligo General made arrangements for the MRI to be carried out in the Beacon Private Hospital (“the Beacon”) on the 16th March, 2006, after which she was taken back to the Mater for further evaluation. The scan showed that the Cauda equina was compromised due to the presence of disc material at the L4/5 level. On admission on the 16th March, 2006, the plaintiff was recorded as having significant urinary difficulties with voiding, dysuria, retention and incontinence. In relation to her bowel dysfunction she was noted to be moving only small amounts but had increased incontinence in that four such episodes were recorded. On examination the plaintiff was noted to have numbness in the perineal area. She was reviewed by Mr. Synott at 19.10 hrs and he directed that she be put on a fasting regime for surgery which was carried out the following day.
Pleadings
86. The pleadings, insofar as they deal with this period, go some way to explaining why a number of the experts gave little or no evidence as to the standard of care afforded to the plaintiff at this time. As initially drafted they focused principally on the events that occurred up to and including the 3rd March, 2006, with significant emphasis being placed on the allegation that Mr. Synott had failed to remove the offending central disc in the course of surgery. In particular, it was asserted that it was the negligence of the defendants over that earlier period that caused the plaintiff to represent to Sligo General on the 12th March, 2006, in such distress. It was only by way of additional particulars delivered in February, 2012 that the defendant’s care over this period was first called into question. The pleadings also probably explain why there is scant reference to the plaintiff’s treatment and condition over this period in those expert reports which were furnished to the Court on the plaintiff’s behalf in the course of the hearing. Indeed, from the manner in which the evidence was adduced, I feel it is likely that the plaintiff’s experts, with the exception of Mr. Campbell, were so convinced of the strength of the case to be made in respect of the plaintiff’s care up to and including the time of her first operation on the 3rd March, 2006, that they never engaged upon a consideration of whether or not the defendant’s could be faulted if the Court were to come to the conclusion that her management over that period had not been negligent.
The Expert Evidence
87. Mr. Coombs gave very limited evidence in relation to any unacceptable lapse of time between the plaintiff’s presentation to Sligo General on the 12th March, 2006, and her second surgery at the Mater on the 17th March, 2006. This was possibly due to the fact that in his expert report he had confined his criticism to what he considered to be the cause of the plaintiff’s injuries, namely, an unacceptable delay in relation to her referral to the specialist unit of the Mater in February, 2006, the postponement of surgery until the 3rd March, 2006, and the alleged failure on the part of Mr. Synott to remove the entirety of the offending disc in the course of surgery. He nonetheless stated in the course of evidence that he felt that the traditional rectal examination, which had been carried out on the plaintiff following her readmission to Sligo General on the 12th March, 2006, with a history of two episodes of faecal soiling, might have lulled the clinicians into a false sense of security. He described the test as one which is very subjective and therefore not particularly helpful. He also said that the absence of obvious incontinence was not a reliable marker for ruling out CES as opiates make people constipated and the plaintiff was taking this type of medication. Further, the fact that the plaintiff was overweight, in his opinion, made the test to establish anal tone more difficult. In such circumstances he would have wanted to rely upon more objective signs of CES such as imaging, the presence or absence of urinary retention and/or perianal numbness.
88. Mr. Campbell advised the Court that on her readmission to Sligo General on the 12th March, 2006, he believed that the plaintiff still had a bladder that was potentially saveable and that it was inexplicable that the attending clinician had concluded that she had no obvious signs of CES. He referred to the fact that the plaintiff had faecal incontinence, disturbed perianal sensation, had required catheterisation because of retention and had weakness and sensory changes. Mr. Campbell felt that the findings in the medical and nursing notes established that the plaintiff had CES on the 12th March, 2006, probably due to a retained fragment, and that she should have had an emergency MRI the following day i.e. Monday the 13th March, 2006, and surgical decompression within hours. By the time she had surgery on the 17th March, 2006, Mr. Campbell felt that the “horse had bolted” and as a result the plaintiff had gone on to develop a neurogenic bladder which was present at the time she was discharged to rehab on the 3rd April, 2006.
89. In his evidence in chief on the defendant’s behalf Mr. O’Rourke disputed the plaintiff’s contention that the plaintiff’s presenting symptoms on the 12th March, 2006, were a continuum of those symptoms which she had had postoperatively, as she had been well following her discharge from the Mater up until the 11th March, 2006. He agreed however that she had new symptoms which would raise real concern in that she had loss of bowel control and also had sphincter disturbance in the form of urinary retention and numbness on passing urine. However, he stated it was difficult to know if the soiling referred to on readmission was a continuation of the diarrhoea the plaintiff had experienced in the Mater or was truly a sign of incontinence. He advised that the doctors in Sligo General appeared to treat the plaintiff’s presentation as requiring urgent expert input and that they had acted appropriately in consulting with the Mater over the phone. Interestingly, however, in light of Mr. Campbell’s damning criticism of the decisions made by the clinicians at this time, counsel for the defendant did not invite Mr. O’Rourke, in the course of his examination in chief, to express his opinion on the conclusion apparently reached by Mr. Canya that the plaintiff had no new symptoms or on his advice that the patient be maintained on bed rest to be seen in the Mater on the 14th March, 2006. Neither did counsel seek his opinion as to the speed and manner in which the investigations were carried out up until her second operation on the 17th March, 2006.
90. In the course of his cross examination Mr. O’Rourke agreed that on her admission on the 12th March, 2006, the plaintiff had all of the signs which she had had when operated upon on the 3rd March, 2006, and in addition she had a one day history of faecal incontinence. He expressed himself as having “difficulty” with Mr. Canya’s conclusions that there had been no change in the plaintiff’s condition and the advice he apparently gave on the night of the 12th March, 2006, to keep the patient in Sligo General on bed rest until the 14th March, 2006. He agreed that the plaintiff should either have been sent to the Mater immediately or an urgent MRI should have been arranged after which she ought to have been transferred to the Mater. He advised that a repeat MRI was warranted having regard to the plaintiff’s symptoms and also because a surgeon would wish to proceed cautiously before deciding to operate for a second time on a patient with a discharging wound.
91. When asked if he agreed that an emergency MRI could have been obtained in the Beacon on the morning of Monday the 13th March, 2006, Mr. O’Rourke said that was a possibility. However, he reminded the Court that the Beacon was a private hospital with no emergency facilities but confirmed it was likely that this could have been obtained by the 14th March, 2006. As of the 14th March, 2006, he said that the plaintiff was still sensate of bladder and said that the sine qua non for cauda equina was having urinary sphincter disturbance. He advised that as CES progresses the patient looses sensation and goes into retention with overflow. At that stage the plaintiff was still sensate, so she had not, in his opinion, yet developed a full blown CESR because if she had she would have been constantly dribbling urine.
92. In terms of the standard of care afforded to the plaintiff by the Mater, Mr. O’Rourke agreed that relevant medical literature advises that all cases of CES should be treated as emergencies. He said that in his opinion the plaintiff had been dealt with urgently but not as an emergency and on that basis accepted that the plaintiff had not received the level of care to which she was entitled. He agreed that if there had been a delay of 72 hours in the surgery necessary to address an emergency CES then that would be unacceptable.
93. Prof. Bolger, on the defendant’s behalf, told the Court that at the time of her readmission to Sligo General on the 12th March, 2006, the plaintiff’s condition had deteriorated since her discharge from the Mater but that she was nonetheless improved from her pre operative condition on the 2nd March, 2006, when she was found to have diminished anal tone. He considered the episodes of faecal soiling described by the plaintiff on the 12th March, 2006, as relatively insignificant in light of the fact that she had reported having had diarrhoea when in the Mater postoperatively. Further her sphincter was found to be normal in the course of rectal examination, so incontinence could reasonably be ruled out. Also, while the plaintiff complained of feeling unable to fully empty her bladder, she had nonetheless emptied it while in the Accident and Emergency Department thus demonstrating that she continued to have bladder sensation. He advised that patients in extreme pain commonly develop urinary retention and that retention was not a very specific marker for CES. The most significant feature of the plaintiff’s presentation on the 12th March, 2006, was, in his opinion, the absence of any new neurological findings and he was of the opinion that the plaintiff had improved neurologically from the situation she had been in on the 3rd March, 2006.
94. Prof. Bolger advised that based on the plaintiff’s presentation and physical findings, the patient should have been scanned as soon as possible, but this was not the emergency situation advocated on the plaintiff’s behalf. He agreed that it was not ideal that the patient, when she had been seen on the 14th March, 2006, in the Mater, had then been sent back to Sligo General only to come back to the Mater on the 16th March, 2006, and that it would have been preferable if she could have been kept in the Mater and a scan arranged for her from there, but not as an emergency.
95. Mr. Grevitt was not in agreement with Prof. Bolger as to the plaintiff’s condition on readmission to Sligo General on the 12th March, 2006. He was satisfied that having regard to the earlier ASIA scores in the Mater hospital records post her earlier surgery that there had been a significant deterioration in her condition. It was his opinion that the patient had CES with retention on the 12th March, 2006, as evidenced by the altered perianal sensation and the patient’s faecal soiling which he felt was significant in that it is a late sign of cauda equina. That soiling, he said, was evidence of the loss of executive control and was not a symptom that the patient had experienced in the Mater prior to her first surgery. He explained the difference between faecal soiling and diarrhoea and was not in agreement with Prof. Bolger as to the significance of the soiling described by the plaintiff on her readmission on the 12th March, 2006. He felt that the faecal soiling was significant because it demonstrated that there was some loss of control of the anal sphincter. While anal tone was present, he advised that the plaintiff had decreased sensation in the left perianal skin.
96. Mr. Grevitt, when asked by counsel for the plaintiff to agree that the investigations that had been carried out between the 12th and the 16th March, 2006, had been done too slowly, accepted that the situation had not been “ideal”.
Non Expert Evidence
97. In relation to the care afforded to the plaintiff over this period of time the Court also heard evidence from Mr. Healy on behalf of Sligo General and from Mr. Synott on behalf of the Mater. I am satisfied that both of these witnesses did their best to give a truthful and objective account of what happened in their hospitals, albeit that neither of them appears to have been involved in a hands on way in relation to the plaintiff’s care over this period, save that Mr. Synott clearly saw the patient at about 19.00 hrs on the 16th March, 2006, and operated upon her for the second time the following day.
98. On reviewing the evidence of Mr. Healy and Mr. Synott, I believe it is fair to say that by the time the relevant clinical records had been brought to their attention in the course of cross examination, both of them expressed some reservations as to conclusions reached and decisions made by the relevant clinicians and also as to the speed at which the MRI investigation was pursued. Accordingly, I will refer to what I recognise are somewhat selective extracts from their evidence but which are nonetheless significant in the context of the expert evidence referable to this period.
99. Mr. Healy agreed that the note of the plaintiff’s condition on admission to the ward recorded at 00.15 hrs on the 13th March, 2006, to the effect that she had “no oblivious cauda equina syndrome” was not an accurate “impression”. While he initially appeared to excuse the content of the note on the basis that it had been made by an SHO he accepted that there were worrying signs that the plaintiff either had or was developing CES. He agreed that every single clinical sign of CES was recorded in the admission notes and accepted that the doctor concerned might have been mistaken in his conclusion. Mr. Healy also agreed that the plaintiff needed to be reviewed in the context of the possibility that her presentation was indicative of CES and said that he had concerns about the advice received from the Mater that the patient should be retained in Sligo General for bed rest until she could be seen at Mr. Synott’s outpatients’ clinic on the morning of Tuesday the 14th March, 2006.
100. When questioned by defence counsel as to the plaintiff’s complaint about the alleged delay between the 13th and the 17th March, 2006, Mr. Synott advised the Court that it was always difficult to assess postoperative patients in order to determine exactly where their symptoms were coming from. He said that the referral letter to the Mater had mentioned diarrhoea, had reported that the patient’s continence was normal and had stated that the patient was not in retention. However, Mr. Synnot was not correct in this regard. The first letter written by Dr. Ahmed dated the 13th March, 2006, addressed to the Mater made no mention of diarrhoea but referred to one episode of faecal soiling, the fact that the patient was experiencing urinary retention, had decreased sensation in the left perianal skin and had decreased power in her extensor hallucis longus, albeit in the presence of normal anal tone.
101. Mr. Synott advised that the plaintiff’s symptoms were possibly part of her postoperative recovery and that they were not indicative of anything new such as a recurrent disc herniation or some other cause of spinal compression. He was satisfied that the patient needed to be evaluated by MRI scan and he felt that this had been obtained as expeditiously as possible. Once the scan had demonstrated recurrent compression, surgery was carried out in an expedient manner.
102. When the actual contents of the clinical records made following the plaintiff’s emergency admission were put to Mr. Synott in cross examination and he was asked about Mr. Canya’s apparent response to the phone call from Sligo General he said he wondered why the patient had not been transferred to the Mater immediately. He stated that “with those symptoms she certainly needed an urgent MRI scan”. He felt that the immediate transfer may not have occurred because the clinicians may have considered it was pointless to transfer the plaintiff without a scan, knowing that it could not be done in the Mater. He also accepted that the plaintiff had developed full blown cauda equina at some stage after she left the Mater following her first operation.
Conclusion
103. This is not a straightforward case in terms of liability particularly due to the fact that the plaintiff was not under the care of the same hospitals and clinicians throughout the period when she required medical intervention in relation to her back condition. The clinicians in the respective hospitals did not have the benefit of the medical and nursing records of the other hospital and at times decisions had to be made regarding the plaintiff’s condition and management over the telephone. The position was further complicated by the fact that the plaintiff, because of her physical size, could not be scanned other than in what was described as the only open scanning machine which was located in the Beacon in Dublin and to which she was taken by ambulance on two occasions. Also, while it had been intended that the plaintiff would be discharged from the Mater to Sligo General for follow up wound care and physiotherapy, the patient decided she would not accept this advice and went straight home.
104. It would be much easier to assess the adequacy of the care afforded to the plaintiff had she represented to the Mater as opposed to Sligo General on the 12th March, 2006. However, this is not what happened and the facts are vastly more complicated in this case than in those referred to in the literature produced to the Court where the patients surveyed invariably presented to one hospital in the absence of prior surgery with symptoms indicative of the onset of CES. Here the plaintiff had just undergone apparently successful surgery to remove a large prolapsed lumbar disc and had experienced some postoperative complications in the form of diarrhoea and retention. Also to be factored into the Court’s assessment is the undoubted caution required of a clinician when considering the possibility of carrying out a second operation on a patient with a discharging wound and where that surgery would likely be complicated by reason of scar tissue and inflammation from the first operation.
105. Following her presentation at Sligo General on the 12th March, 2006, I am satisfied that the clinicians on duty urgently assessed the plaintiff’s condition as was mandated by her history and symptoms and also by reason of the information advised in the referral letter from Westdoc. A full history was taken and the plaintiff appears to have received a thorough neurological examination.
106. It is clear from the medical and nursing notes that the orthopaedic SHO and Registrar on duty were fully aware of the possibility that the plaintiff might, regardless of her earlier surgery, have symptoms indicative of CES and presumably it was these concerns that caused Mr. Sherazi to seek the advice of Mr. Canya in the Mater. Regrettably those in charge of the plaintiff’s care in Sligo General came to the conclusion that the plaintiff had “no obvious cauda equina syndrome” and this was their “impression” which they recorded in the notes. Mr. Canya also appears to have concluded that the plaintiff’s symptoms were no different than those she had had when she was in the Mater. The upshot of the exchange between the clinicians was a decision that the plaintiff could be left in Sligo General on bed rest to receive a specialist review in the Mater on the 14th March, 2006, which review would take place in the absence of any postoperative imaging of the lumbar spine.
107. In the light of the evidence of Mr. Campbell, Mr. Grevitt, Mr. Healy and indeed Mr. Synott as to the plaintiff’s presenting complaints on admission to Sligo General on the 12th March, 2006, and the findings made on neurological examination, I am satisfied that the aforementioned conclusions and decision were not ones which would have been made by any reasonable body of like clinicians in similar circumstances if acting with due care for the plaintiff’s welfare. The plaintiff clearly had a number of signs potentially indicative of CES, namely perianal numbness, significant urinary retention and a history of faecal incontinence the previous day. The only other warning sign of CES which was missing was imaging showing a disc compromising the spinal cord, an investigation which was not directed. Further, her symptoms were not the same as when she had been in the Mater. The plaintiff had experienced what was considered to have been classic postoperative urinary retention on the 3rd and 4th March, 2006. However, she had made a full recovery in this regard and was noted to be voiding normally from the 5th March, 2006, until her discharge on the 8th March, 2006. Further, the plaintiff had not had any history of faecal incontinence during her stay in the Mater. The first recorded episode following her surgery of the 3rd March, 2006, was on the 11th March, 2006, three days after her discharge. The plaintiff had had what appears to have been an isolated episode of diarrhoea in the Mater on the 7th March, 2006, and it was not diarrhoea that she complained of when she presented to Westdoc and the difference between these two conditions in the context of CES was made very clear by Mr. Grevitt in his evidence. The plaintiff also described a feeling of numbness when passing urine and was found to have decreased sensation in the left perianal skin. Mr. Campbell, Mr. O’Rourke, and Mr. Grevitt were all agreed that the plaintiff’s condition had significantly deteriorated post her discharge from the Mater. She had two of the red flag signs of CES even if her anal tone was preserved at that point. The third red flag would have been imaging demonstrating the presence of a disc compromising the spinal cord but no such scan was advised to rule out the real possibility of CES. Mr. Canya advised that the patient be maintained on bed rest until she could be seen at the Mater on Tuesday the 14th March, 2006, and it seems that no direction was given to Sligo General to try to get an MRI scan carried out in advance of the appointment.
108. It was the aforementioned conclusions that the plaintiff was not at risk of CES and that her condition was unchanged from that which she had enjoyed in the Mater that determined the speed at which she was investigated. This in turn had the effect of delaying the surgery required to decompress her spinal cord.
109. It is not necessary for me to determine whether the clinical “impression” of the plaintiff’s condition reached by Dr. Ahmed and Mr. Shirazi was based on their own assessment of the plaintiff or whether they were led into error or a state of false security due to advice received from Mr. Canya’s in the Mater. The upshot of the exchange between Mr. Shirazi and Mr. Canya was that the patient was left in somewhat of a medical limbo on bed rest in Sligo General until she was seen in the Mater on the 14th March, 2006. Even Mr. Synott in his evidence agreed that the plaintiff’s symptoms on admission on the 12th March, 2006, required urgent investigation by MRI scan and Prof. Bolger accepted that as of the 14th March, 2006, it would have been prudent to get an urgent MRI scan.
110. While the defendants maintained that the plaintiff was appropriately investigated on an urgent basis, as opposed to on the emergency basis advocated as mandatory by Mr. Campbell, it appears to me that following the discussion with Mr. Canya in the early hours of the 13th March, 2006, her investigations advanced on anything other than an urgent basis and in fact proceeded in a relatively routine and relaxed manner as can be seen from the following records:-
(i) The Sligo General records note that Mr. Canya advised that the patient was “well known to him” and that he “was not worried about her” and was “not keen” that she be transferred back to the Mater. He advised that the patient be maintained on bed rest in Sligo General until the 14th March, 2006, and apparently gave no direction that an MRI should be sought in advance of that appointment.
(ii) The letter of referral to the Mater written by Dr. Ahmed on the 13th March, 2006, following the discussion between Dr. Shirazi and Mr. Canya, asks for the patient to be reviewed and sets out the patient’s signs and symptoms but makes no mention of any urgency, the possibility that the patient might be at risk of CES or might need an MRI scan.
(iii) The note following the review of the patient in the Mater on the 14th March, 2006, records that the patient needed a repeat open MRI scan but again there is no indication in the notes that this should be obtained urgently.
(iv) Mr. Sproule, Orthopaedic Registrar wrote to Mr. Shirazi following the plaintiff’s attendance at the Mater on the 14th March, 2006, stating that the patient had no new neurological difficulties. He said that it would be “prudent to repeat her MRI in the Beacon and forward the films to us here in the Mater”. Again there was no sense of urgency, regardless that the clinical notes for the 14th March, 2006, record the fact that the patient was experiencing ongoing retention, had reduced perianal sensation and had experienced two episodes of faecal incontinence, albeit that she was noted to have normal anal tone.
(v) The letter of 15th March, 2006, sent by Dr. Ahmed to Dr. Fintan, consultant radiologist at the Beacon, while referring to all of the plaintiff’s relevant symptoms asked that the MRI be performed “at their earliest convenience” because “she (the plaintiff) is going to England on the 22nd March” and having regard to her symptoms Mr. Synott had advised that an MRI would be “prudent”.
(vi) In the letter of the 15th March, 2006, sent by Dr. Ahmed to Ms. Smith, General Manager in Sligo General seeking her approval for the expenditure on the open MRI he stated that Mr. Synott had advised that the MRI should be carried out “as a matter of prudence”.
111. From the aforementioned notes and correspondence it appears that those dealing with the plaintiff’s care from the time of the phone call to the Mater in the early hours of the morning of the 13th March, 2006, up until the time she had her open MRI scan on the 16th March, 2006, did not view her history or symptoms as potentially indicative of CES. Yet, when the plaintiff presented to Sligo General on the 12th March, 2006, her condition was worse than that which had justified Mr. Synott making a decision to operate as a matter of relative urgency on the 28th February, 2006. On admission to the Mater on the 28th February, 2006, the plaintiff was not in urinary retention. This is to be contrasted with her position on the 12th March, 2006, when a catheter was passed in the Accident & Emergency Department and she passed 600ml of urine. By 03:00 hrs the following morning, a further catheter was passed and the plaintiff expelled 1,400ml of urine, showing clearly that she had ongoing retention. On the 28th February, 2006, and on the 12th March, 2006, the plaintiff was found to have altered perianal sensation with normal anal tone. However, on the 12th March, 2006, the plaintiff had been incontinent the previous day but had no equivalent history on the 28th February, 2006. Indeed, Mr. Synott in his evidence stated that had the plaintiff been incontinent on the day of her first admission to the Mater on the 28th February, 2006, that he would have stayed that night to operate, albeit that the situation was somewhat different in that he had the benefit of an MRI scan showing the presence of a large central disc. Nonetheless, his evidence certainly points to the significance of the symptoms in question and the importance of imaging for the purpose of making a CES diagnosis.
112. The three red flags or main pillars of a CES diagnosis are the presence of some sphincteric disturbance, altered perineal sensation and the presence of a very large disc causing compression of the cauda equina. Mr. Grevitt, Mr. Synott, Mr. Healy and Mr. O’Rourke all accepted that the plaintiff had the first two of these pillars when she returned to Sligo General on the 12th March, 2006, and these were new symptoms which the patient did not have when she left the Mater. In reaching these conclusions, I have preferred the evidence of Mr. Campbell to the evidence advanced on behalf of the defendants. However, I believe my conclusions are substantially supported by the evidence of Mr. O’Rourke that having regard to the plaintiff’s symptoms in the early hours of the 13th March, 2006, she should have either been directly referred back to the Mater with immediate effect or an emergency MRI scan should have been sought the morning after which that transfer should have taken place. According to the literature produced to the Court in the course of the evidence, the whole purpose of having red flag signs is to ensure that intervention occurs before the patient develops CESR at which point their spinal cord can become terminally compromised over a relatively short period.
113. Having regard to the plaintiff’s bladder and bowel symptoms and her decreased perineal sensation on readmission to Sligo General, I am satisfied that her condition warranted emergency investigation by MRI scanning and that this should have been recognised by Mr. Shirazi and Mr. Canya. I accept Mr. Campbell’s evidence that the advice given by Mr. Canya, when contacted by telephone in the early hours of the morning of the 13th March, 2006, that the plaintiff should not be transferred to the Mater but detained in Sligo General for bed rest and observation until the morning of the 14th March, 2006, when she would be seen at Mr. Synott’s clinic, was to fall short of the standard of care acceptable in such circumstances.
114. Mr. Synott himself, having had the detail of the plaintiff’s symptoms and findings on admission to Sligo General put to him in cross examination, seemed to be relatively in agreement with Mr. O’Rourke in terms of the inappropriateness of the decision made to leave the plaintiff on bed rest in Sligo General. Indeed, I infer from his evidence that he would have expected Mr. Canya and Mr. Shirazi to have agreed in the course of their telephone call that the patient needed an MRI scan on an urgent basis and that they should have tried to get that imaging done in advance of her attendance at the outpatients’ on the 14th March, 2006. Nothing was said by Mr. Synott in the course of his evidence which to me appeared to support the decision made simpliciter to postpone any further investigation or specialist examination of this patient until Tuesday, the 14th March, 2006.
115. Before reaching the aforementioned conclusion regarding the adequacy or otherwise of the care afforded by the defendants to the plaintiff over this final period, I considered carefully all of the defendant’s evidence and in particular that of Prof. Bolger which was much more robust than that of the defendant’s other expert witnesses. Prof. Bolger is undoubtedly a surgeon of significant expertise and I found him to be a thoughtful and knowledgeable witness. However, when dealing with the point at which he considered an emergency MRI scan was warranted against the risk of CES, he seemed to be of the opinion that such an obligation only commenced at the point at which the patient had lost anal tone and had developed painless retention, an opinion which I cannot accept as valid having regard to all of the other evidence. In the course of the proceedings the Court was told that emergency surgery is considered vital in cases of CES where the patient still has some degree of executive function of bowel and bladder as it is only in this category of case that the patient has a chance of making something close to a full recovery of their bladder and bowel function post surgery. If a decision to seek an MRI scan is to be postponed until the patient has acute CES, then it seems almost inevitable that the patient will be denied any realistic prospect of making a full recovery should the diagnosis only be made at that point. Further, what we know as a matter of fact is that Mr. Synott actually operated twice on this patient as a relative emergency in the face of the risk of damage to the cauda equina when she had not lost her anal tone and was not suffering from painless retention.
116. In coming to my conclusions that an emergency MRI was warranted I have also taken into account the fact that the plaintiff on readmission reported numbness through all dermatomes as opposed to those levels normally associated with CES. Likewise I have considered the evidence of Prof. Bolger that any prudent surgeon would be cautious about advocating further surgery in a patient who already had previously two surgical approaches to the L4/5 disc. However, I am satisfied that the defendant’s failure to ensure that the patient had an emergency MRI scan following her admission to hospital on the 12th March, 2006, ultimately resulted in her surgery being delayed by approximately 48 hours.
117. What is clear is that it was possible, without expressing any degree of urgency, to get an appointment for an open MRI scan in the Beacon on the 16th March, 2006, having sought the same the previous day. In such circumstances I am satisfied on the balance of probabilities had an emergency MRI scan to rule out CES being sought first thing on the 13th March, 2006, that it could have been done later that day or early enough on the Tuesday morning so that the plaintiff would have had it with her when seen in Mr. Synott’s clinic at some stage on Tuesday, the 14th March, 2006. I am also satisfied that the manager’s approval for that scan could have been obtained to facilitate the MRI being obtained in that time frame. Given that the patient when reviewed by Mr. Synott, with the benefit of the MRI at 19:00 hrs on Thursday the 16th March, 2006, was operated upon the following day, I think it as logical to conclude that if she had been seen at some stage during his Tuesday clinic, he would have directed that she remain fasting and that she would have been operated upon at some stage the following day.
118. In conclusion, in relation to this last period of the plaintiff’s hospitalisation, I am satisfied that the defendant’s failure to ensure that the plaintiff had an urgent MRI scan following her admission to hospital on the 12th March, 2006, ultimately resulted in her surgery being delayed by approximately 48 hours. However, it is important in the context of the facts of this case to note that the defendants, even if using all reasonable care, could not have been expected to have had the plaintiff to surgery in the Mater within the 48 hour period which is recommended by the plaintiff’s experts and validated in the medical literature. This, of course, has significant implications in terms of the issue of causation and damages.
Causation and Damages
119. The principle issues I now have to determine are:-
(i) what injuries and symptoms does the plaintiff have which can be connected to CES? and
(ii) which or how much of these injuries and symptoms can be ascribed to the delay in the plaintiff’s surgery which I have concluded should have been carried out by the evening of the 15th March, 2006, rather than about 48 hours later on the 17th March, 2006.
120. The plaintiff has a myriad of complaints which she seeks to attach to the defendant’s negligence. However, having considered carefully all of the evidence including that given by the plaintiff’s treating clinicians, I am not satisfied that the evidence was sufficient to establish the validity of many of these complaints. Further, of those which do exist, I have had real difficulty in connecting many of them to CES.
121. In relation to the plaintiff’s back symptoms, which include complaints of low back pain radiating into the arms and trunk, pain and pins and needles in both feet, a sensation of deadness in both legs and a restriction in her mobility to the point that she maintains she needs two crutches and at times a wheelchair to mobilise, I am not satisfied that she has all of these symptoms or restrictions or that if she has I can associate them with CES or any delay in its treatment. Also, I accept the evidence given by Mr. O’Rourke, Prof. Bolger and Mr. Mulligan that in many instances the plaintiff’s response to physical testing and examination was inconsistent and unreliable thereby casting significant doubt upon the validity of her complaints. One such example was her response to a straight leg raise test which was carried out when she was seated and then when she was recumbent. The results of these tests, which are effectively the same, led to completely inconsistent results.
122. I accept the defendant’s evidence that the plaintiff’s lower limbs are essentially normal, that she should not need crutches and that any difficulties she has walking cannot be explained by any delay in the surgery carried out. I am also satisfied that there is no objective basis for the extent of the disability complained of by the plaintiff in relation to her low back. Neither has she proved that the degree of pain which she experiences in her back has been exacerbated by any delay in her surgery. In this regard I accept the evidence of Prof. Bolger that persistent low back pain cannot be related to nerve damage to the cauda equina but is rather a symptom of the underlying degenerative process that caused disc material to prolapse in each instance. I further accept Mr. O’Rourke’s evidence that spinal decompression is not a treatment for back pain and that regardless of any delay in the carrying out of the final surgical procedure the plaintiff was likely to have continued to suffer from low back pain due to the fact that she had experienced three separate prolapses of disc material at the L4/5 level commencing as early as 1994.
123. I am not satisfied that the plaintiff has established any organic basis for her complaints regarding neck pain, limitation of shoulder movement, pins and needles and reduced sensation in the hands or pain radiating into her trunk. Even had she done so, symptoms of this nature apparently emanate from problems at a level well above the lumbar spine which was the level at which the cord was compressed and therefore cannot be associated with CES.
124. Apart from the aforementioned injuries, the plaintiff also complains of having sustained very significant injuries to her bladder and bowel. In relation to the loss of bladder function the plaintiff led expert evidence from Mr. Ronald Miller, Consultant Urologist. He did not examine the plaintiff but rather prepared his expert report and gave his evidence principally based on the material and records which had been furnished to him by the plaintiff’s solicitors. Mr. Miller’s evidence was essentially confined to the issues of causation and prognosis in circumstances where his report had advised that it was for spinal specialists to comment upon whether there had been unnecessary delay in the management of the plaintiff’s care up until the 3rd March, 2006.
125. Mr. Miller told the Court that having regard to the plaintiff’s urodynamic studies conducted in the UK in 1994, there was nothing to suggest that she had an unstable bladder prior to the events that are the subject matter of these proceedings. He stated he was satisfied from the records in the Mater that the plaintiff had been sent to rehab because she had a neuropathic bladder i.e. one that was not contracting and she needed to be taught how to manage it.
126. Mr. Miller told the Court that the plaintiff had experienced an imperfect recovery following her surgery on the 17th March, 2006, and that it was important for her to keep the volume of urine and the pressure within the bladder low to aid recovery and to self catheterise as advised. He said that from the results of two urodynamic studies, the first of which of was carried out in January, 2007, he felt it was probable that the plaintiff’s bladder was atonic from the time of her discharge from the Mater and that there had been little change thereafter. He believed this to be the case regardless of the letter from Mr. Flynn, Consultant Urologist dated the 13th September, 2006, which expressed his hope that the plaintiff might ultimately become catheter free and the medical records which gave the impression that during this period the plaintiff appeared to be voiding relatively normally using her urethra leaving only low residuals behind.
127. Mr. Miller agreed that the medical records in rehab established that the importance of catheterisation had been impressed upon the plaintiff and that a patient who does not comply with catheterisation is at risk of increased bladder dysfunction and potential kidney damage. However, he advised that nobody likes carrying out intermittent self catheterisation and that patients need training, supervision and some degree of manual dexterity to engage with the process and that it is normal for patients to resist catheterisation. In his opinion the plaintiff was psychologically labile and he felt that her resistance to catheterisation fell within the normal range of reactions to be anticipated in such circumstances. However, his overall impression of the plaintiff was that in the years after her surgery she had wanted to take control of her bladder function and had decided to catheterise as little as possible in the hope of proving to her doctors that she did not need to engage with daily self catheterisation as they had advised was necessary.
128. Mr. Miller agreed with counsel for the defendants that the plaintiff had not only failed to self catheterise as advised by her clinicians but that she had given very different accounts of the extent to which she had engaged with self catheterisation to those in charge of her care. While he accepted, from the medical records, that the plaintiff’s bladder function appeared to improve somewhat while she was in the rehab, he did not agree that she had not suffered permanent bladder damage as a result of CES or that such damage was related to other matters unconnected with events prior to the 17th March, 2006.
129. Mr. Miller’s conclusion was that the plaintiff’s bladder symptoms are genuine and permanent and that she is now, albeit very belatedly, engaging fully with the process of self catheterisation. In terms of her future, he believes that the plaintiff will have to self catheterise twice daily for the rest of her life. However, he felt that her need to self catheterise should not unduly restrict her in relation to her day to day activities and while she might experience occasional episodes of wetness he felt this could be overcome by the wearing of a protective pad.
130. In respect of causation, Mr. Miller had worked on the assumption that the Court was likely to conclude that CESI was present by mid February, 2006 and that there had been a culpable delay on the part of the defendants in carrying out the plaintiff’s first surgery on the 3rd March, 2006. On that basis he advised that had surgery been performed by the 28th February, 2006, he would have expected the plaintiff to have returned to having relatively normal bladder function. Being unaware as to the Court’s likely findings, Mr. Miller’s opinion was not canvassed as to the likely damage occasioned to the plaintiff’s bladder, if any, should the Court come to the view that the defendant’s negligence was confined to a delay of approximately 48 hours in dealing with CESR which was present by the start of the day on the 12th March, 2006.
131. Mr. Miller gave his evidence based upon his belief that the plaintiff’s atonic bladder was a feature of disc compression which had occurred over an extended period. Based on this assumption he stated that had there been earlier intervention the lion’s share of the nerve damage would have been preventable. The difficulty with this evidence from a causation perspective is that his opinion was based on the assumption that there had not been a complete and successful decompression of the cauda equina on the 3rd March, 2006.
132. Mr. Miller also told the Court that the plaintiff’s failure to self catheterise had not helped matters but that her failure in this regard was not unusual and was foreseeable. Further, he stated that “at least 50% of her current bladder situation could be attributable to the spinal issues, my gut feeling is that it could be rather more than that”. Other factors beyond direct nerve damage which he stated were impacting upon the function of the plaintiff’s bladder included her medication and in particular Amitryptolene, which he advised is a major bladder inhibiter and the use of antidepressants and benzodiazepines which also interfere with the bladder’s contractibility given that they relax the smooth muscles. The plaintiff has also been taking medication for constipation and this would also have an effect on the control of her bladder. Finally, the plaintiff has diabetes which was diagnosed in 2009, and this, according to Mr. Miller could also influence her bladder function and make her prone to urinary tract infections.
133. Mr. Granger, Consultant Urologist, on the defendant’s behalf, accepted that the urodynamic study of the 17th January, 2007, established that the plaintiff had very little bladder sensation and that she had, at that point, developed an atonic bladder. However, he felt that her medical records in rehab indicated that she was capable of contracting her detruser muscle and voiding in the normal way, leaving only small residual measurements of urine behind, until September, 2006. This suggested to him that the plaintiff could not have suffered any irrevocable damage to her bladder nerve supply between December, 2005 and her surgery on the 17th March, 2006. He further relied upon Mr. Flynn’s letter of September, 2006, to which I have earlier referred, in support of his conclusion. Mr. Granger was at a loss to explain how the plaintiff’s bladder function had apparently deteriorated between September, 2006 and January, 2007 and he was of the opinion that had she complied with the advice given to her when in rehab regarding catheterisation that she would probably not be self catheterising now.
134. Having considered the evidence of the expert urologists in this case, I tend to prefer the evidence of Dr. Miller to the effect that it is probable that the plaintiff had an atonic bladder on her arrival at rehab from the Mater regardless of the notes that record the plaintiff’s ability to void using her urethra on occasions while leaving only small residues behind. I accept his evidence that a patient may be able to void irrespective of significant damage to their bladder for a number of reasons including the possibility that they may void because of increasing abdominal pressure in the presence of a weak sphincter. However, even if it is the case that the plaintiff’s bladder was not atonic on her arrival at rehab and that its function subsequently deteriorated because of her failure to comply with the catheterisation programme advised for her, I do not believe that I should treat the plaintiff as a litigant who has failed to mitigate her loss. Mr. Miller made it clear in the course of his evidence that many patients, particularly those suffering from psychological problems, find self catheterisation difficult and challenging and he felt that the plaintiff’s response could not be considered out of the ordinary. I reject the submission made by counsel for the defendant that any injury sustained by the plaintiff due to her failure to self catheterise should, from a legal prospective, be treated in the same manner as a claimant who sustained additional injuries due to not taking medication which had been prescribed for them by their clinicians. To my mind, catheterisation is a demanding task which requires both physical skill and significant mental fortitude on the part of the participant. It is an exercise which brings with it psychological and physical challenges which are relatively unique and it in no way comparable to what is required of a patient who is advised to comply with a straightforward drug regime. In the case of self catheterisation, Mr. Miller told the Court that the plaintiff’s response to the need to self catheterise was to be anticipated unlike the position of a patient advised to take medication where their failure to engage with that medication is clearly not to be anticipated.
135. Based on the aforementioned evidence and conclusions, I am left in the difficult position of trying to determine the extent to which, if any, the delay of approximately 48 hours in the carrying out of the plaintiff’s final surgical procedure has adversely affected the plaintiff’s outcome particularly insofar as her bladder function is concerned. The answer to this question is extremely complex because the expert evidence given to the Court and that contained in the literature is not at all clear as to the significance of delayed surgery in cases of CESI and CESR.
136. Insofar as the literature relied upon by the parties is concerned, the condition of cauda equina syndrome, be it CESI or CESR, is so rare that there is little enough by way of published material documenting the outcome of patients unfortunate enough to develop this condition. Further, all of the studies relied upon by the parties contain a mix of people who were operated upon at different stages. Some had CESI and others had CESR. Hence, the interpretation of the results of these surveys is very complicated. Nonetheless, the literature is relatively dogmatic regarding the urgency with which CES should be treated and reports that the prolapse should be removed at the earliest opportunity because firstly it will reduce the plaintiff’s pain and secondly because the delay in treatment can only worsen the prospect of urological recovery. Further, most of the studies referred to in the course of the evidence recommended that decompression surgery should take place within 24 to 48 hours of the making of the diagnosis. In this regard, the Shapiro article entitled “Medical Realities of CES secondary to Lumbar Disc Herniation” (2000), argues that the sooner the cauda equina has been decompressed after the onset of symptoms the more likely it is that the patient will not be left with residual neurologic deficit. That study reviewed 44 patients with CES. Nineteen of the 20 patients who were operated upon within 48 hours of the onset of CES recovered normal bladder function within six months. However, of the 24 who were delayed, 63% were still using a catheter at one year.
137. There are, however, many other authors of significant repute who apparently hold the view that the die is cast once the prolapse occurs. The article relied upon in the course of evidence authored by Lavy and published in the British Medical Journal, clearly advises that the clinical outcome for patients with CESR is poor anyway and bears no relationship to the timing of the surgery, the underlying thinking being that only patients with CESI benefit from emergency surgery because at that point it is hoped that the further deterioration of a patient’s bladder can be halted by immediate surgery.
138. In the present case, Mr. Grevitt was of the opinion that the die was cast regardless of whether the plaintiff received surgery on the 13th or the 17th March, 2006, because of the presence of CESR and bowel problems at the time she represented to Sligo General on the 12th March, 2006. In his own article on CES published in 2007, he referred to other studies where those patients who had developed CESR before surgery had been seen to have a universally worse outcome than those who were operated upon before control of the bladder was lost. However in a study carried out in his own hospital the authors did not find this to be the case. The patients with CESR prior to surgery did no worse than those who received decompression surgery in advance of the development of CESR.
139. Certainly the preponderance of the medical literature relied upon by the plaintiff in these proceedings suggests that once CESR is established the outcome is bleak and regrettably it does appear to be the case that the plaintiff had developed CESR by the the the start of the day on 12th March, 2006. Mr. Grevitt and Mr. Synott both seemed to accept, that this was the position, albeit with the benefit of the MRI scan done on the 16th March, 2006. Accordingly, if I accept, as I do, that the plaintiff had CESR at the commencement of the 12th March, 2006, at best the plaintiff would have had her surgery in the course of the afternoon of the 15th, approximately 80 hours after the onset of CESR. She would not have been operated upon within the advised 24- 48 hour recommended window and also fell into the category of patient likely in any event to have a less than full recovery even if operated upon within that window because of her CESR.
140. Having taken all of the aforementioned evidence into account I am nonetheless satisfied that the delay in carrying out the decompression of the plaintiff’s spine in the presence of CESR, probably led to the damage to the plaintiff’s bladder being more severe and her recovery less successful than would otherwise have been the case had she been operated upon by the afternoon of the 15th March, 2006. I cannot accept the defendants’ evidence to the effect that the further delay of approximately 48 hours made no difference to the plaintiff’s outcome as on the 14th March, 2006, she was sensate as regards her bladder when seen at the outpatients’ department of the Mater, even if she was in retention and at that point she still had normal anal tone. By contrast on the 16th March, 2006, the plaintiff was noted to have been complaining of difficulty voiding, dysuria, retention and incontinence and also reported “increased incontinence – four times” and numbness in the perianal area, the latter condition apparently being confirmed on testing. Accordingly, there appears to have been something of deterioration in the plaintiff’s overall condition over the period commencing the 12th March and ending on the 17th March, 2006.
141. However, I am satisfied that even in the absence of any negligence on the part of the defendants it is highly likely that the plaintiff would not have recovered full bladder function. I believe she would probably have had problems with urgency because of the fact that she would have had CESR for 80 hours before surgery even absent any negligence. I also think it likely that she would have needed to self catheterisation from time to time due to failure to fully recover bladder function. Such outcome must be contrasted with the significant difficulties which the plaintiff will now endure for the rest of her life whereby she will have to self catheterise twice daily, something that will require significant management in the context of her day to day activities.
142. The plaintiff also maintains that she has sustained a significant and permanent injury to her bowel as a result of the defendant’s negligence. She told the Court that since she came into the defendant’s care she has suffered from difficulties with constipation, incontinence and lack of perianal sensation. The plaintiff has been taking substantial amounts of medication in respect of her bowel dysfunction and has been referred to a number of consultants by her general practitioner, Dr. O’Gorman. In particular she has attended Mr. John Hyland, Consultant Gastroenterologist and is presently under the care of Prof. Ronan O’Connell at St. Vincent’s Hospital. Apart from medication for her bowel, the plaintiff maintains that she now must carry out what is described as a fleet enema twice a day in default of which she either becomes significantly constipated or incontinent. All of these problems she seeks to attribute to the defendant’s negligence and, of course, the onus of proof rests with her in this regard.
143. Dr. O’Gorman told the Court that the plaintiff has had a lot of problems with her bowel since her fall from the motor scooter in November, 2005. She has apparently required vast amounts of different medications to deal with these problems and he has referred her to a number of consultants in the hope of bringing her symptoms under control. However, somewhat strangely given the extent of her alleged bowel problems, the consultants who have been treating the plaintiff in respect of these problems were not called to give evidence on her behalf and neither did the Court have the benefit of any expert evidence in relation to her bowel function in terms of either condition or causation.
144. The plaintiff was, however, examined by Mr. Eadhbard Mulligan, Consultant General and Colorectal Surgeon on the defendant’s behalf on the 4th January, 2012. In the course of that examination, Mr. Mulligan told the Court that the plaintiff did not raise any complaint about her bowel. Neither did she advise him of her need to carry out daily enemas. Her three major complaints were her inability to walk, back pain radiating to her shoulders, head and legs and finally the existence of blisters to the buttocks and legs. Further, he carried out an examination destined to establish whether the plaintiff had any colorectal symptoms which might be attributable to the negligence alleged against the defendant and found that she had normal anal tone and a significant anal squeeze.
145. Based on his examination, Mr. Mulligan concluded that the plaintiff does not have any true faecal incontinence and he is satisfied that the likely cause of her constipation or any other bowel symptoms is the opiates which she is taking rather than due to any damage occasioned to her bowel as a result of delayed surgery.
146. In support of his opinion that the plaintiff is unlikely to have sustained any permanent bowel damage as a result of CES or any delay in the decompression of her spine, Mr. Mulligan told the Court that there was almost no evidence in the plaintiff’s medical records to suggest that anybody had ever witnessed the plaintiff having an episode of incontinence post her surgery of the 17th March, 2006, even though there were isolated medical records recording her account of a small number of such events. In particular, he drew the Court’s attention to the fact that the plaintiff has been hospitalised on innumerable occasions since the 17th March, 2006, and that in the majority of cases the records in relation to these admissions make no mention of bowel issues. Indeed, he felt that the evidence would suggest that from the time of her discharge from rehab all of the way up until the middle of 2007, the plaintiff seemed to enjoy significant improvement in her bowel function which he felt supported his view that her bowel problems are more likely to be the indirect consequence of her drug/medication regime.
147. Insofar as the plaintiff claims that she has a loss of genital sensation due to the defendant’s negligence, I am not satisfied that she has discharged the burden of proof in this regard. Firstly, I am not convinced as to the extent of the loss of sensation complained of. In this regard, the Sligo General records in respect of the period covering the 6th February, 2009, to the 13th February, 2009, note that the plaintiff complained of significant vaginal discomfort during this period. Also, even if the plaintiff does have symptoms of this nature, I am not satisfied on the balance of probabilities that any such loss of sensation should be ascribed to the additional 48 hour delay in the carrying out of her spinal decompression given that even in the absence of any negligence on the part of the defendants, her surgery would likely only have been carried out approximately 80 hours post the onset of CESR thus making an adverse neurological effect of some degree almost inevitable.
148. I am not satisfied that the plaintiff has established any other injuries which I can relate to her delayed surgery.
149. To conclude, I believe that even if the plaintiff had received optimum care for her CESR she would in any event, because her surgery would have been significantly delayed beyond the recommended 48 hour window, have sustained permanent neurological damage to her bladder. As a result I believe she probably would have suffered from some degree of urgency and would have needed to wear a pad for protection. I also am satisfied that the plaintiff’s bladder would have remained dysfunctional to the point that she would have had to self catheterise frequently albeit intermittently. However due to the defendant’s negligence she will now have to self catheterise twice daily for the rest of her life and this will require her to adjust her lifestyle to accommodate such a requirement. I am also satisfied that the additional burden of having to deal with daily self catheterisation will adversely impact on the plaintiff’s already vulnerable psychological condition. In all of the circumstances I will award a sum of €120,000 by way of general damages.
O’Shaughnessy v Limerick County Council
[2015] IEHC 389JUDGMENT of Mr. Justice Binchy delivered on the 18th day of June, 2015
Facts
1. These proceedings arise out of the accidental demolition of the plaintiffs’ house known as “the Hollows” at Annoholty, Birdhill, Co. Tipperary on 4th September, 2006 during the advanced contracts phase of the construction of the N7 Nenagh/Limerick motorway scheme (the “scheme”). The case came on for hearing on the 14th of January, 2015 and concluded on the 3rd of February, 2015. Comprehensive submissions were made by counsel on the 6th of March, 2015. At the time of demolition of the plaintiffs’ house, the plaintiffs were undertaking substantial works of reconstruction thereto, as a consequence of which the roof had been removed, the gable wall of one end of the house had been removed and the gable wall of an outhouse had also been removed (to the intent of joining the outhouse to the main house). Sundry other works were also underway including the digging of trenches to provide for drainage and services and the removal of plaster from the rear wall of the dwellinghouse. A current planning notice was on display on a front pier of the house, dated 20th July, 2006. The first named plaintiff commenced these works during 2005. He removed the slates on the roof in April 2006 and as late as August 2006 conducted excavations to the rear of the house with a view to creating a driveway.
2. In the course of carrying out works to the house, the first named plaintiff hurt his back during 2006 and had to cease work for a period, from August, 2006. A front porch to the house remained intact and delivery of the plaintiffs’ post continued through the door of this porch notwithstanding that the remainder of the dwellinghouse was undergoing such extensive renovations. On 4th September, 2006, the second named plaintiff decided to drive by the house with a view to collecting post only to find that the structure had been demolished.
3. While some efforts were made to resolve the plaintiffs’ claim for the damages occasioned to them, these efforts were unsuccessful owing to the fact that the defendants could not agree amongst themselves either which of them was responsible in law for the demolition of the structure or any apportionment of responsibility. However, on the second day of the trial, agreement was reached between the plaintiffs and the defendants as to the amount of damages to be paid to the plaintiffs (the terms of which are confidential as between the parties) and it was further agreed that that amount, together with the cost of the proceedings, should be paid by whichever of the defendants are found liable in the proportions to be determined by the court, following the conclusion of the proceedings. In addition, it was agreed that whichever of the defendants are found to be liable shall also pay to the plaintiffs a further sum in respect of rent payable by the plaintiffs at a rate of €700 per month (or part thereof) from the date of the settlement agreement (15th January, 2015) until the payment date as defined in the settlement agreement. Subsequent to the demolition of their property, and pending the trial of these proceedings, the plaintiffs had been paid, ex gratia, the total sum of €20,000 by the first named defendant.
Background
4. Pursuant to the provisions of a multiple framework contract dated 25th July, 2000 and entered into between Limerick County Council (which together with the second named defendant is hereinafter referred to as “LCC.”) and a number of other contracting local authorities (all together therein referred to as the “Contracting Authority”) and a number of firms of consulting engineers including MC O’Sullivan & Co. Ltd and Scetauroute ( the former of which was later taken over or reorganised and had joined with the latter to become a joint venture enterprise comprising the third and fourth named defendants herein and which are herein after together referred to as “RPS”), the various firms of consulting engineers agreed with the Contracting Authority to provide certain services in connection with the construction of certain roads including the N7 Nenagh/Limerick road scheme. Under the terms of the multiple framework contract, services were to be provided by the firms of consulting engineers pursuant to a “call off” procedure whereby the Contracting Authority would nominate a given firm of engineers to provide services in accordance with the framework agreement. The call off procedure involved a request to provide services pursuant to task orders issued by the Contracting Authority to the firms of consulting engineers under the framework agreement, and in the case of RPS, 6 task orders were issued by the Contracting Authority relating to the design, and services relating to the design of a 38km stretch of high quality dual carriageway between Nenagh and Limerick. Clause 2.1 of the framework agreement defined different categories of services being provided i.e. Normal Services, PSDS Services (Project Supervisor, design stage), EIS Services and Additional Services, as defined. Clause 2.1.1 defined “Normal Services” as being the services described in clause 2 of the model form of agreement between a client and consulting engineers for the design and supervision of works of civil engineering construction published by the Institute of Engineers of Ireland, 1986. Clause 2.1.1 further provided that “Normal Services for the purposes of the model form of agreement were to include those services set out in part 1, schedule 2, of the framework agreement.
5. In general terms it may be said that RPS were appointed as consulting engineers to provide, and/or assist in the procurement of all services required by LCC in connection with the design and construction of a high quality dual carriageway between Limerick and Nenagh, (“the scheme”) and to supervise the performance of contractors appointed by LCC in connection with each element of the scheme. This included geotechnical and geological advice, architectural services, safety audits, traffic surveys, traffic modelling, attendance at all meetings, preparation of all necessary tender documentation, property ownership searches and mapping required for design, including accommodation works and attendance at public meetings.
6. The model form of contract requires the consulting engineer, at design stage, to prepare designs and tender drawings and specifications and schedules and bills of quantities as well as forms of tender and invitations to tender as may be necessary to enable the works (as defined in the model form of contract) to be tendered for or otherwise ordered by the client.
7. Task Order Number 1, which issued from LCC to RPS in May, 2005 stated that it related to the various duties in relation to the design of National Primary Route, N7, Nenagh to Limerick and required the consulting engineers to provide the various services relating to the design of the N7, road in accordance with the provisions of the task order. Clause 2.2 of the task order stated that the consulting engineer was to operate under the direction of the design office project manager to oversee the design of the improvement works. That person was Mr. Ciaran Hegarty of LCC and, in turn, he was stated to be responsible to the Limerick Director of Service, Transport and Infrastructure, namely, Mr. Tim Fitzgerald.
8. The works undertaken by RPS in connection with the scheme in accordance with the aforesaid documentation included the drawing up of the statutory notices in connection with the compulsory purchase of lands for the construction of the scheme and the putting out to tender of various advance works, contracts and the subsequent preparation of those contracts (after the conclusion of the tender process). The advance works included a hedge removal contract and also, most relevant to these proceedings, a contract for the demolition of buildings that interfered with the construction of the road scheme or were otherwise not required by the local authority following the acquisition of the lands upon which such structures were located.
9. RPS prepared the documentation relating to the compulsory acquisition of lands and the compulsory purchase order (“CPO”) was published in September 2004. Included in the plots described for acquisition by LCC was a plot designated as plot number 156a in the ownership of a Mr. Lancelot Ryan and comprising 0.2 acres. The site was described in the schedule to the CPO as a “derelict house and land” although there was no visible structure upon the site. This description of this site was a matter of some controversy in these proceedings. The person responsible for this description was Mr. John O’Donovan an experienced engineer working on the scheme on behalf of RPS. Mr. O’Donovan gave evidence on behalf of RPS at the trial of the matter. He informed the court that he was able to confirm that there was no standing structure on the site, but because the site was so overgrown, he was unable to confirm whether or not there was anything on or under the ground, such as, in his own words “the footings of a building or any ground features or sub structure.” He was concerned however, that there might have been at some stage in the past, for a number of reasons:
1. The site was small and rectangular in shape, comprising about 0.2 acres. While owned by Mr. Lancelot Ryan, it was isolated from the remaining landholding of Mr. Ryan and surrounded by the lands of another landowner;
2. Although modern maps did not indicate that there was ever a structure on the property, he felt that a very old map dating back to 1843 suggested that there might have been a structure on this site at one point in time;
3. There was an ESB pole on the site, which, while servicing other properties, Mr. O’Donovan felt might have been indicative of a dwelling on the site at some time or alternatively a planning application to develop the site.
10. Because of this uncertainty, and because he felt that the site did not merit the simple description of “land” Mr. O’Donovan saw fit to discuss the matter with Mr. Ciaran Hegarty and suggested that the site should be described as “derelict”. According to Mr. O’Donovan, Mr. Hegarty accepted that description of the site. However, according to Mr. Hegarty it was Mr. O’Donovan’s decision and he could not approve it because he was never at the site. But in his evidence Mr. Hegarty did not dispute the accuracy of the description. Indeed he said that LCC had not yet excavated or conducted works on the site and that it may well yet turn out to be the case that there is a building underneath the site.
11. During the course of 2004, Mr. Seamus Linehan, a recently employed graduate engineer in the employment of LCC, together with a colleague, a Mr. John O’Keeffe was undertaking what he described in his evidence to the Court as a windshield survey of properties (which included the taking of photographs of the properties) being acquired by the Council for the purposes of the scheme. It is called a windshield survey for the obvious reason that it is conducted from a car. Mr. Linehan gave evidence that he and Mr. O’Keeffe would share the work i.e. the driving and the taking of the photographs and so he could not be certain who took the photographs about which he gave evidence, but he was satisfied that they were taken by either himself or Mr. O’Keeffe. The purpose for which they were taking photographs at the time was to assist with valuations of properties to be acquired in connection with the scheme. At the time this survey was being conducted, there was no fencing on the site and Mr. Linehan gave evidence that because of this they had to rely on the CPO documentation to identify properties being acquired. Mr. Linehan said that he and his colleague noted that the schedule to the CPO stated that there was a derelict house on plot 156a, and that since there was only one derelict house in the vicinity and on the same side of the road as plot 156a i.e. the plaintiffs’ house, they photographed that house. Interestingly however, at this time the plaintiffs’ house was not in fact derelict, although it might have looked somewhat run down. The photograph taken by Mr. Linehan, or his colleague (Mr. O’Keeffe) was a photograph of a house that was fully roofed with all of its walls intact, although it was not occupied at the time. Mr. Linehan’s evidence was to the effect that he and Mr. O’Keeffe were looking for a house that matched the description of a derelict house on the same side of the road as plot 156a. While this was not a very scientific way of identifying the property, it was not unreasonable in the circumstances, especially in view of the fact that the photographs were being taken for internal purposes only and at that stage one would have imagined that the worst that could happen if a photograph was taken of the wrong property is that it would have been surplus to requirements.
12. In any case, Mr. Lenihan assumed the plaintiff’s house to be located at plot 156a, and either he or Mr. O’Keeffe photographed it and also labelled it 156a for records purposes. This photograph was then placed in a single hard copy file where such records were kept within the County Council, as well as on an electronic jpeg file. This was the first occasion on which the plaintiff’s property became confused with plot 156a.
13. On 19th January, 2006, Mr. Dermot Boland, Assistant Engineer with LCC, sent to Mr. Tony Ambrose of RPS, a spreadsheet of the properties to be demolished for the purposes of the scheme. This included reference to plot number 156a, recorded as being in the ownership of Mr. Lancelot Ryan and comprising a derelict house. Unlike all of the other properties described in this schedule, it did not have a “Designated” number i.e. all the other properties were designated property numbers D1-D19; Property number 7 was divided into D7a and D7b, so there were twenty one properties in total including plot 156a.
14. In early February, 2006 Mr. Liam Barry of RPS sent to Mr. Boland of LCC the first draft of the demolition contract for his comments. This was a normal part of the liaison between RPS and LCC in relation to the scheme. This draft demolition contract did not include the plaintiffs’ property or plot 156a. Mr. Boland responded by email dated 7th February, 2006 in which he stated:-
“Liam, my comments on the Demolition Contract documents that I received last week are attached.
14 of the properties should be available by 1st May to start the demolition contract, however I have marked the other 7 as provisional as there are still ongoing discussions between Limerick County Council and the owners. Some of them may become free to demolish however, others may be left intact until the main contractor gets on site.”
This email was copied by Mr. Boland to Mr. Ciaran Hegarty and also to Mr. Tim Fitzgerald, Senior Engineer with LCC to whom Mr. Hegarty reported. Both Mr. Hegarty and Mr. Fitzgerald gave evidence, but neither had any recollection of reading the email or the attachment.
15. In relation to the plaintiff’s dwellinghouse/plot 156a the following is stated:-
“Page 22: there are 21 properties, Lancelot Ryan has a property called “The Hollows”, (derelict house), at Cooleen, Birdhill, Co. Tipperary, plot 156a (photo is attached).”
16. The reference to 21 properties is confusing. These were originally 21 properties listed for demolition in the Environmental Impact Statement prepared for the scheme (hereinafter the “EIS”), but this had been reduced by this time to 20. The addition of the plaintiff’s house (bringing the total to 21) may have appeared to Mr. Barry to be consistent with the EIS; but since Mr. Barry did not give evidence this is mere conjecture.
17. The photo attached was of course the photograph taken of the plaintiffs’ property at the end of 2004 by either Mr. Lenihan or Mr. O’Keeffe. A similar statement appeared later in the comments of Mr. Boland in relation to page 38 of the draft tender documents. Also, at another point in the document there is a direction “add in Lancelot Ryans’ Property”.
18. Following upon receipt of the email from Mr. Boland, Mr. Barry proceeded to amend the draft demolition contract tender documentation. In the course of the trial, there was a lot of discussion as to the character of the observations made by Mr. Boland in relation to plot 156a. Mr. Boland maintained that in responding to the draft demolition contract, in his email of 7th February, 2006 he was making RPS aware of any errors that he observed, raising any queries that he had and otherwise commenting upon the draft. He did not agree that he was giving Mr. Barry instructions. While Mr. Barry did not give evidence, Mr. John Shalloe, a Director of RPS and who was project manager of the scheme on behalf of RPS from early 2005, gave evidence of his interpretation of the document. He contended that Mr. Barry was instructed by Mr. Boland to include the plaintiff’s dwellinghouse in the demolition contract. I think it is clear that the document was made up of comments, questions and directions. However, Mr. Boland undoubtedly directed the inclusion in the demolition contract of what he thought was a derelict house owned by Mr. Lancelot Ryan and located at plot 156a, but which dwellinghouse was in fact that of the plaintiffs.
19. On the other hand it is clear that Mr. Barry did not feel bound to act on all of Mr. Boland’s instructions. In a short response dated 21st of February, 2006 to Mr. Boland’s commentary of 7th February, 2006, Mr. Barry answered Mr. Boland’s questions, responded to some of his observations and also informed Mr. Boland that another property, which Mr. Boland had suggested need not be demolished, was indeed to be demolished on the instruction of the National Roads Authority. It is clear from the evidence given by Mr. Boland that he and Mr. Barry were engaged in an interactive process the simple objective of which was to arrive at a suitable form of contract to be entered into with whatever contractor was appointed to undertake the work of demolition of the properties that had been identified for demolition for the purposes of the scheme. Other parties were copied with the emails exchanged between Mr. Boland and Mr. Barry, including Mr. Ciaran Hegarty and Mr. Tim Fitzgerald in the Council and Mr. Tony Ambrose of RPS.
20. Subsequently, Mr. Barry, having received Mr. Boland’s comments acted upon the observations/instruction of Mr. Boland in relation to the plaintiffs’ dwellinghouse, without raising any queries with Mr. Boland about the direction relating to plot 156a/the plaintiffs’ house. That is to say, he included the plaintiffs’ house in the next draft of the demolition contract and he did so in a most dramatic way, by superimposing the photograph taken by Mr. Lenihan or Mr. O’Brien at the end of 2004 onto that part of the contract demolition map, with an arrow leading from the photograph and pointing to plot 156a i.e. the only interpretation open to anybody looking at the map would have been to the effect that this house was located at plot 156a. Moreover, the photograph was placed over the site upon which the plaintiffs’ dwellinghouse was actually located, thereby eliminating what might otherwise have been a potential warning light to anybody looking at the map, because the plaintiffs’ dwellinghouse was the only dwellinghouse along this stretch of roadway.
21. The error thus having been made, it was not subsequently discovered until after it was too late i.e. following upon the demolition of the plaintiffs’ dwellinghouse.
The Demolition Contract
22. The demolition contract itself was finalised and signed as between LCC and the fifth named defendant, Midland Construction Ltd. (“Midland”) and dated July 10th 2006. This contract imposed an obligation on the demolition contractor to be familiar with the site and to be acquainted with the conditions under which the contractor was obliged to work (condition 10.4) and, in addition, to notify the engineer appointed under the contract (RPS) upon becoming aware of any ambiguity, discrepancy or other fault in or between the contract documents (clause 5).
23. The scope of the works in the demolition contract was stated to be the demolition of “21 properties, a mixture of agricultural and non-agricultural residences and recreational facilities. The locations and pictures of these properties are indicated in drawing numbers MCT0183SC-505 and MCT0183SC-515. The picture of the plaintiffs’ dwellinghouse referred to above was included and of course the reference to 21 structures (rather than 20) further imported the error into the demolition contract.
24. Mr. Pat Egan of Midland gave evidence on behalf of the third named defendant and informed the court that both he and his fellow director in Midland were taken on a tour of the site i.e. all of the properties to be demolished by Ms. Jennifer Conway, resident engineer of RPS in or about the 10th July, 2006. Ms. Conway confirmed to them that the plaintiffs’ house was to be demolished. The evidence of Mr. Egan in this regard was not contradicted (Ms. Conway did not give evidence in the proceedings).
25. Furthermore, Mr. Egan gave evidence of a conversation he had with Mr. France, the second resident engineer of RPS working on the site at the relevant time, although Mr. France was on holidays at the time of the demolition of the plaintiffs’ dwellinghouse. Mr. Egan says that he enquired of Mr. France as to why the plaintiffs’ dwellinghouse was numbered D20 when the other structures for demolition in this area were numbered D8 and D9 i.e. it appeared to Mr. Egan that this house was numbered out of sequence. Mr. Egan said that Mr. France did not know the reason for this but simply instructed Mr. Egan to proceed with the demolition of the structure. Mr. France, who also gave evidence, denies that any conversation of this kind took place and points to the fact that he was on holidays at the time when Mr. Egan first suggested that the conversation occurred. Mr. Egan accepted in evidence that he may have been mistaken as to the precise time of the conversation.
26. There is a second version of this conversation recorded in a note kept by Ms. Deirdre Clarke of LCC. This note was prepared by Ms. Clarke a week after she met with Mr. Egan (and others) on site, the day following the demolition of the plaintiffs’ house. In this note, Ms. Clarke records that Mr. Egan said to her that he had alerted Mr. France that there was a site notice i.e. a planning application notice on the front wall of the property, and that the response he received from Mr. France was to proceed with the demolition. Mr. Egan, while recalling a conversation with council officials on the day following the demolition, does not recall speaking specifically to Ms. Clarke and nor does he recall stating this to Ms. Clarke. His only recollection of a conversation with Mr. France related to the site being numbered out of sequence.
27. For reasons that will be apparent later in this judgment, I do not believe it is necessary for me to reconcile the varying accounts of whatever conversation (if any) that Mr. Egan had with Mr. France. What is undisputed is that Midland entered into a demolition contract that required it to tender a price for the demolition of the plaintiffs’ house and which contract included a picture of the plaintiffs’ house for identification purposes. Moreover, it was confirmed to Midland on site that the plaintiffs’ dwellinghouse was to be demolished.
28. It should also be noted that other contractors involved in the project and in particular the demolition contract, were also directed to the plaintiffs’ dwellinghouse by the resident engineers prior to its demolition. These included the contractor responsible for conducting a safety survey of all properties to be demolished, namely OHSS Limited which identified a small amount of asbestos at the plaintiffs’ property. Arising out of this, Midland was instructed to engage a specialist contractor to remove the asbestos from the property, which it did. Tobar Archaeology was the firm appointed to conduct an archaeological survey of the properties to be demolished and it too undertook a survey of the plaintiff’s property. Furthermore, a representative of Tobar attended on site with Midland on the day of the demolition of the property.
Disconnection of electricity supply to plaintiffs’ premises
29. LCC took steps to have the electricity supply to the plaintiffs’ house to be disconnected by the ESB. This was obviously required prior to demolition. This had to be done by LCC (and not RPS or Midland) because the ESB would only deal with the owner of a structure in relation to disconnection of supply. Ms. Deirdre Clarke of LCC was the person responsible for giving the necessary instructions and information to the ESB. She stated in evidence that in giving these instructions she was required to give the ESB a meter number and meter reading, but because there was no house on plot 156a she could not give this information. Ms. Clarke had previously walked the entirety of the site for the scheme over a number of weeks and was familiar with plot 156a. She was aware that there was no house on the plot and that whatever might be there could only be a ruin although she could not be certain because the site was so overgrown. Ms. Clarke gave evidence that she spoke to somebody by telephone in the ESB (whose name she could not recall) and, since she had no meter number or reading to give, she gave that person the name of Lancelot Ryan. That person then checked the ESB records and could only find a record of Mr. Ryan’s dwellinghouse and no other property in his name. Ms. Clarke said she then passed that information on within LCC (she could not remember to whom, but felt it was more than likely to Dermot Boland) and she then had no more to do with the disconnection of electricity supply from the plaintiffs’ dwellinghouse.
30. In his evidence in regard to this issue, Mr. Boland stated that, subsequently, as the time for the demolition drew close that he contacted the ESB and gave them a description of the premises to be disconnected i.e. the plaintiffs’ premises. Although it is obvious that the Council could not have been recorded as being the customer of the ESB for the premises, nonetheless it appears that the ESB proceeded to disconnect the power supply from the plaintiffs’ premises. It is clear from the evidence of Ms. Clarke that she had sufficient familiarity with plot 156a to know that there was no above ground structure on site 156a, or certainly that if there was it could not have been much more than a ruin underneath the overgrowth on the site. For that reason she was not surprised when the ESB informed her that they had no record of a connection to the site in the name of Mr. Lancelot Ryan. However, Ms. Clarke did not relay to Mr. Boland that she was aware that there was no house on plot 156a. This was confirmed by both Ms. Clarke and Mr. Boland in evidence. Upon cross-examination, Mr. Boland accepted that if he had been made aware that there was no house on plot 156a, at this stage, it would have alerted him to make further inquiries and he agreed that had he been so alerted he would have ascertained quickly that the plaintiffs’ house was not on plot 156a and that it would have not therefore been demolished.
Earlier complaints from LCC to RPS
31. Finally, of some relevance to the overall background against which the demolition contact was prepared and executed, is that LCC and RPS had exchanged correspondence in February and March 2006 about the performance of RPS in the delivery of services to LCC in connection with the scheme. In a letter of 28th February, 2006 LCC complained about a lack of personnel on site and also complained about the fact that fencing of the site was not yet complete. In a further letter of 3rd March, 2006, Mr. Hegarty complained to Mr. Shalloe amongst other things about the accuracy of the fence line and the manner in which this was being attended to by RPS. Mr. Hegarty complained about lack of leadership and inadequate supervision in this correspondence. While it is fair to say that his specific complaints were dealt with comprehensively in subsequent letters from Mr. Shalloe to Mr. Tim Fitzgerald of LCC dated 6th March, 2006 and to Mr. Hegarty dated 7th March, 2006, nonetheless there is an echo in this correspondence that resonates in these proceedings i.e. a failure to complete the fencing of the site (and this was 6 months before the demolition of the plaintiffs’ dwellinghouse) and inadequate supervision on site.
32. In his evidence, Mr. Shalloe denied that there was any deficiency in the supervision on-site. He said that the demolition contract was a straightforward contract that would not have required very much direct supervision and also that at the time that contract was being executed, there was only one other contract – the archaeological resolution contract – underway. He said that the resident engineering staff were being supervised by himself as the project leader and that he had delegated his supervisory duties to one of his colleagues, a Mr. Liam Bohane. He said that Mr. Bohane, for the most part, supervised the resident engineers from the Cork office of RPS and that “resident engineers would not require on-site supervision of themselves”. As far as the demolition contract itself is concerned, there was no necessity to be present onsite during a demolition. He said that “the inspection of the works would be the aftermath when it was demolished to ensure that it had been demolished.”
33. As far as fencing is concerned, Mr. Shalloe stated that at the time of demolition of the plaintiffs’ property, the fencing contract was complete and that the best of his recollection it had been completed by around March 2006. However, in his evidence, Mr. France on behalf of RPS stated that “when I look back to this location it would appear that the temporary fencing and permanent fencing was not complete along this side road leading up to O’Shaughnessys’ house. So the CPO line was not clearly defined in that location, and not only that, but there was quite a lot of site clearance still to be carried out in that area.” This is also consistent with the evidence of Mr. Egan of Midland.
34. Mr. Hegarty, in his evidence regarding these matters, stated that the resident engineers (whom he referred to as being young) had the required skill and training for their work, but they were not getting the necessary leadership.
35. Mr. Shalloe agreed in evidence that the resident engineers should have been familiar with the boundaries of the site, which would have been obvious from the maps. Furthermore, he agreed that it was clear from any of the maps showing the site boundaries that the plaintiffs’ property was not within the site as shown in the maps.
36. Before leaving these issues it is worth observing that each of the resident engineers, Jennifer Conway and David France were relatively new to the scheme. Jennifer Conway started in November 2005 and David France in July 2006. The material assets part of the EIS which sets out the properties subject to demolition was prepared prior to their involvement in the project. No evidence was presented to Court to indicate that either Ms. Conway or Mr. France were acquainted with the identity of the properties to be demolished in order to ensure that they could supervise the demolition contract appropriately. Likewise, it must be pointed out, Mr. Boland of LCC joined LCC in March 2005 and was working on this project from summer of that year. He confirmed that he did not refer to the EIS in his consideration of the demolition contract. All of this indicates a inadequacy of supervision of and/or instruction given to these key personnel.
Submissions of Counsel
LCC Submissions regarding RPS
37. Counsel for LCC submits that both RPS and Midland each owed a duty of care to the plaintiffs in the work that they were doing on the project. In this regard they rely on the well established principles laid down in the case of Anns v. Merton London Borough Council [1978] AC 728 which was followed the Supreme Court in this jurisdiction in the case of Ward v. McMaster [1988] I.R. 337. They also rely on the authority of Caparo Industries v. Dickman [1990] 2 AC 605 in which Bridge L.J. stated:-
“in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
38. This approach was endorsed in this jurisdiction by the Supreme Court in the case of Glencar Exploration v. Mayo County Council (No.2) [2002] 1 I.L.R.M. 484 and in the case of Whelan v. Allied Irish Banks & Ors [2014] IESC 3.
39. It was further submitted on behalf of LCC that such a duty of care has been held to be owed specifically by construction professionals to third parties. The court was referred to Jackson & Powell on Professional Liability, (7th Ed., Sweet and Maxwell, 2012) at 382 wherein it is stated:-
“It has long been held that architects and other construction professionals owe a duty of care not to cause personal injury to those whom they could reasonably foresee might be injured as a result of their negligence.”
40. Jackson & Powell continue at p. 386:
“Although it might be possible for the law to impose a duty of care only in respect of personal injuries, it is generally accepted that a construction professional will owe a duty not to cause physical damage to property other than that in respect of which he is engaged. Thus in Northwest Water Authority v. Binnie Partners there was no argument that the defendant engineers who had been found liable for the personal injury caused to the claimants in Eckersley v. Binnie Partners owed a different duty to the Water Authority in respect of damage suffered to its property. Blake J. found that there was no practical difference between the issues that the defendant wished to raise in the second case from those that had it had raised in the first case.”
41. LCC lists eight different failures on the part of RPS, any one of which, it submits, had it not occurred would have avoided the demolition of the plaintiffs’ dwellinghouse. For expedience, I will also express my view on each of these submissions immediately following upon same.
1. “The “mis-description” of plot 156a in the CPO schedule as “derelict house and land.” ”
In my view, this description, even if it may fairly be described as a mis-description, amounts to a failure on the part of RPS. In my opinion, the description of the site by Mr. O’Donovan, while perhaps overly cautious in nature, was understandable. It was a description arrived at by Mr. O’Donovan, an experienced engineer, after giving the matter due and proper consideration and following upon discussion with Mr. Hegarty. Moreover, the description was one assigned to the site for the purposes of describing the property in the schedule to be attached to the compulsory purchase order and there was no evidence given that it caused the Council any difficulty in connection with the acquisition of lands from Mr. Ryan. Ms. Deirdre Clarke, Executive engineer with LCC, gave evidence that Mr. Ryan was not paid any compensation in connection with any structure upon the site. Furthermore, a CPO schedule is prepared only in connection with the acquisition of lands; a separate list of properties to be demolished was included in the environmental impact statement, also prepared by RPS (in consultation with LCC) in connection with the scheme, at the same time as the CPO documentation. It was clear from Mr. O’Donovan’s evidence that he was familiar with this part of the EIS which was being prepared by another one of his colleagues, Ms. Emma Tracey, and that they did a certain amount of work together in assembling the information for this part of the EIS. Photographs were taken of houses that would be likely to be impacted directly by the construction of the scheme. Mr. O’Donovan said in evidence : “we had our defined list of properties that were definitely going to be demolished, and they were ones that were directly on the footprint, and then additional ones that kind of came in and out of the list were for properties that were kind of directly… indirectly impacted by the scheme.”
2. “The resident engineers were unaware of the physical location of Mr. Ryan’s plot of 156a from the time of the making of the CPO to the date of demolition.”
Whatever about at the time of the making of the CPO, it is clear that the resident engineers were not familiar with the precise boundaries of the site in the vicinity of plot 156a in the lead up to and at the time of the demolition of the plaintiffs’ dwellinghouse, and this contributed to the demolition of the house.
3. “The failure by RPS to check the comments made by Mr. Dermot Boland in regards to plot 156a in his email to Mr. Barry of February, 2006.”
In my view there is no doubt but that Mr. Boland’s request to Mr. Barry to include this property in the demolition contract should have caused Mr. Barry to check either the EIS and/or confer with a colleague who was familiar with the site such as Ms. Emma Tracey, in order to verify that this house was within the perimeters of the lands acquired. Mr. Barry had originally submitted a draft contract that correctly identified the properties to be demolished, presumably having identified those properties by reference to the EIS. He was now being requested to add an additional property and this in itself should have prompted him to inquire further as to whether this was a new instruction (and if it was, to confirm that the location was within the lands acquired by the CPO) or, if it was not an additional property, to clarify what must otherwise be a misunderstanding either on his part or the part of Mr. Boland. Since he did not give evidence, the Court can only assume that Mr. Barry himself assumed that Mr. Boland was correct i.e. that the plaintiffs’ property was the derelict house referred to in the CPO schedule, and to that extent, he too was mislead by the CPO schedule.
4. “The failure by the resident engineering staff of RPS to realise, in the period between January 2006 and the date of demolition, that the plaintiffs’ house was outside the construction site.”
This is a similar allegation to that referred to at number 2 above. There can be no doubt but that if the resident engineering staff were familiar with the boundaries of the site then Jennifer Conway would not have confirmed to Mr. Pat Egan of Midland that the plaintiffs’ dwellinghouse was to be demolished. That the resident engineers on a project such as this should be familiar with the site boundaries is self evident. The fact that they were not may not have been entirely their fault and this was owing at least in part to the fact that the site was not fully fenced at this location. But it was a significant factor in the lead up to the demolition of the plaintiffs’ house.
5. “It is clear that RPS staff were aware of the works being undertaken by the plaintiffs and indeed took photographs of the house after the roof structure and gable walls to one end of the house and one end of the adjoining outhouse had been removed.”
Ms. Deirdre Clarke of LCC gave evidence that she observed these works in April of 2006 (as she was driving by) and she immediately checked to ascertain if the property was one being acquired by the Council and she satisfied herself that it was outside of the CPO. She was therefore unconcerned about the plaintiffs’ works because she was not aware that the property had by this time been included in the tender documentation for the demolition contract. Had RPS staff followed up on this as Ms. Clarke did, then the erroneous inclusion of the plaintiffs’ property in the demolition contract would have been discovered. By this time also, the asbestos survey and the architectural survey had been completed in relation to the plaintiffs’ property and according to the report of Mr. Shalloe in relation to the demolition of the plaintiffs’ property (which report is dated 15th September, 2006 and which he prepared at the request of the Council following the demolition of the property), the resident engineering staff did not attend on site when either of those surveys were being conducted in order to confirm the correct location of the structure.
6. “The failure by RPS staff to act on the presence of a planning notice on the pier of the plaintiffs’ house indicating a contemporary planning application in respect of the plaintiffs’ property.”
I am not inclined to attribute too much significance to the planning notice, not least because Mr. France denied ever seeing the notice and there is nothing to indicate that it was ever seen by any RPS personnel. Also, there had been a planning notice on the property previously and so it is possible that the new planning notice affixed on the property by the plaintiffs in July, 2006 would not have attracted attention.
7. “The instruction by David France to Pat Egan to proceed with demolition despite being informed by Mr. Egan of the presence of a planning notice on the property.”
In view of my conclusions overall, I don’t believe it is necessary to arrive at a resolution of the dispute regarding this alleged conversation.
8. “The failure by David France to act on the conversation that he had with Pat Egan of Midland in a jeep in which Mr. Egan queried the necessity to demolish the plaintiffs’ house.”
This conversation is also denied by Mr. France and again I do not believe that it is necessary to resolve whether or not such a conversation took place.
42. Counsel for LCC also argues that even if the court considers that Mr. Boland “instructed” Mr. Barry to include the property of the plaintiffs in the demolition contract, that any causative connection between that instruction and the demolition of the plaintiffs’ property was broken by a number of intervening negligent acts on the part of RPS and Midland, any one of which would constitute a novus actus interveniens. Counsel for LCC relies on the cases of Conole v. Red Bank Oyster Company Limited [1976] I.R. 191 and Crowley v. AIB Bank & Anor [1987] I.R. 282. I will address the principles established in these cases when considering the submissions made on behalf of RPS.
43. Counsel for LCC further submits that the liability of the defendants in this matter must be viewed in the context of the contractual relationship between the defendants. LCC was at all times the client employing RPS and Midland to provide services to LCC in connection with the scheme, and this was acknowledged by Mr. Shalloe of RPS in his evidence.
44. In this context it was argued on behalf of LCC that, having engaged a reputable independent contractor, RPS, to provide the range of services that it was required to provide in connection with the scheme, and another independent contractor, Midland to conduct the demolition works (following a tender process organised on its behalf by RPS), that the council cannot be held vicariously liable to the plaintiffs for the actions of its independent contractors The following passage from McMahon and Binchy, The Law on Torts,(4th Ed., Bloomsbury, 2013) was cited:-
“Although the general rule is that a person is not vicariously liable for the torts of his or her independent contractors, this does not mean that a person is never liable for torts committed by independent contractors. The employer can always liable where he or she has been personally negligent, for example, in selecting an incompetent contractor. Furthermore, in the torts of nuisance, Ryland v. Fletcher [1868] LR 3HL 330, damage by force, breach of statutory duty, liability for wild animals, for example where liability may be imposed irrespective of fault on the defendant’s part, the defendant will be responsible even when the acts complained of are committed by his or her independent contractors. Similarly, in the case of Bailments. Hence the law recognised that some duties imposed on an employer are of such a nature that they are non delegable in the sense that the employer cannot escape liability by delegating their performance to an independent contractor. In respect of such a duty, the employer is bound not merely to take reasonable care of himself or herself, but also to see that reasonable care is taken by anyone to whom the task is delegated”.
45. It is clear from this passage that, while in general terms a person is not vicariously liable for the torts of his or her independent contractors, there are exceptions and these exceptions include the negligence of the employer, nuisance and damage by force.
46. Alternatively, LCC submits that if the Court holds that LCC is vicariously liable for the wrongdoings of RPS and Midland, LCC is entitled to a full indemnity from those parties (having served a notice of contribution and indemnity upon RPS and Midland), on the basis that each of those parties were in breach of their contractual obligations to “ exercise all reasonable skill, care and diligence in the discharge of the duties agreed to be performed by them”. As far as RPS is concerned breach of contract is evidenced by the eight failures alleged by LCC against RPS referred above.
LCC submissions regarding Midland
47. As far as Midland is concerned, LCC relies on the same legal principles as in the case of RPS insofar as it is submitted on behalf of LCC that it cannot have liability for the actions of its independent contractor, in this case Midland, and also that Midland was in breach of its contract with LCC in the following ways:
1. Failing to identify the location of site D20 on a map (as distinct from the photograph superimposed on the drawings attached to the contract);
2. Being unaware of the boundaries of the construction site and that the plaintiffs’ house was outside the same;
3. Failing to investigate the planning notice clearly displayed on the site prior to demolition;
4. Failing to investigate extensive works clearly visible on site prior to proceeding with demolition.
48. Furthermore, in entering upon and demolishing the property of the Plaintiffs, Midland committed a trespass upon the property of the Plaintiffs for which LCC cannot be held liable.
49. All of the above failures alleged by LCC against Midland, in the submission of LCC, constitute negligence and breach of contract on the part of Midland.
RPS submissions regarding LCC
50. For its part, RPS submits that but for certain errors and omissions of LCC, for which RPS has no responsibility, the plaintiffs’ house would not have been demolished, and RPS submits that LCC bears sole responsibility for the following four causative failures, which I will, as with the corresponding submissions of LCC, follow with my own observations:
1. “The first demolition list to include plot 156a originated in LCC.”
This is correct; it was included in the list of properties identified for demolition and sent by Mr. Boland to Mr. Barry on 19th January. Interestingly however, when Mr. Barry prepared the draft demolition contract, he did not include this plot. Regrettably, the Court did not have the benefit of receiving evidence from Mr. Barry, but it seems like a reasonable inference to draw that the omission by Mr. Barry of plot 156a from the first draft of the demolition contract, notwithstanding that it was included in the list submitted by Mr. Boland in January, was deliberate. That begs the question therefore as to why Mr. Barry would have proceeded to include it, without discussion with Mr. Boland, in the next draft of the demolition contract, following receipt of Mr. Boland’s communication of 7th February, 2006.
2. “LCC made the first association between the plaintiffs’ house and plot 156a when employees of LCC photographed the plaintiffs’ house and labelled it Lancelot Ryan plot 156a.”
In so far as LCC may explain this by relying upon the CPO schedule, RPS submits that this is not a good explanation for the following reasons:
(1) The plaintiffs’ house is at a different location than plot 156a as identified on the CPO map;
(2) The plaintiffs’ house (as photographed in 2004) was not derelict and;
(3) At the relevant time there were personnel within LCC who knew there was no structure above ground at plot 156a (Mr. Ciaran Hegarty and Ms. Deirdre Clarke)
It is undoubtedly correct that the Council must bear full responsibility for taking a photograph of the plaintiffs’ house and labelling it as it did. Nobody could have predicted however that this error, which occurred in 2004, would have the consequences that it ultimately did.
3. The instructions given by Mr. Boland to Mr. Barry to include plot 156a on the list of the properties to be demolished, coupled with the description of plot 156a by reference to the photograph of the plaintiffs’ house. RPS submits that but for this email, the plaintiffs’ house would not have been demolished and this is clearly correct.
4. RPS further submits that there was a significant and inexplicable break down of communication between Ms. Clarke and Mr. Boland regarding the ESB disconnection and RPS relies upon the admission by Mr. Boland that had there been better communication between Ms. Clarke and himself, the disconnection of electricity at the plaintiffs’ house would not have occurred and the plaintiffs’ house would not have been demolished.
51. Counsel for RPS argues that causation falls to be determined on the basis of the “but for” test i.e. that the plaintiffs’ property would not have been demolished but for the clear instruction of LCC to demolish the same. They argue that that establishes factual causation as against LCC and that, provided that none of the acts or omissions of RPS amount to a novus actus interveniens, legal causation is also established as against LCC.
52. As it has been pointed out above, counsel for LCC has argued that the various omissions of RPS set out above constitute a novus actus interveniens thereby shifting legal causation from LCC to RPS and in this regard counsel relies on the decisions of the Supreme Court in the cases of Conole v Redbank Oyster Company [1976] I.R.191 and Crowley v AIB [1987] I.R. 282. Those cases are clear authority for the proposition that an original wrongdoer may escape liability in circumstances where an intermediate handler ignores a defect or a danger and subjects the person ultimately injured to that known risk. Counsel on behalf of RPS submits that none of the acts of RPS could be considered in law to be a novus actus interveniens. Counsel submits that in order for an intervening act to constitute a novus actus interveniens the following must be established:
(1) Foreseeability:
Where the intervening act was foreseeable by the original actor. Counsel cites the cases of Smyth v. Industrial Gases (IFS) Ltd. [1950] 84 I.L.T.R. 1 and the more recent cases of Breslin v. Corcoran [2003] 2 IR 203 and Hayes v. Minister for Finance [2007] 3 IR 190 in support of this proposition. I agree with counsel’s submissions in this regard i.e. that the authorities clearly establish that where an intervening act is foreseeable then it will not constitute a novus actus interveniens. The position has not changed since Maguire CJ said in Smyth v. Industrial Gases (IFS) Ltd.:”
“The question as to whether an intervention of a third party should be regarded as breaking the chain of causation depends on whether, in the circumstances of the case, the defendants ought reasonably to have foreseen that such an intervention might take place … putting it in another way, the person guilty of the original negligence cannot escape liability by showing that there was an intervention by a third person, if it be shown that he ought reasonably to have foreseen that there might be such an intervention, and to have foreseen, if such interventions occurred, that injury would result.”
Counsel for RPS also cited Kearns J. (as he then was) in Hayes v. the Minister for Finance [2007] 3 IR 190: “if the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendants act or is very likely, then the original defendant is still considered to be the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which will break the chain of causation between the plaintiff’s damage and the defendant’s conduct”.
(2) Knowledge:
Secondly, counsel on behalf of RPS submits that in order for an action to constitute a novus actus interveniens, it is also necessary that the original negligence must be known to and disregarded by the intervenor who proceeds and subjects the plaintiff to the known risk arising out of the original negligence. In Conole v. Redbank Oyster Co. Ltd. [1976] 1 I.R. 191, the defendant put a boat to sea, laden with passengers, knowing that the vessel was not seaworthy and consequently the Supreme Court found that the negligence of the third party manufacturer of the vessel (Fairway) was not the cause of the accident that ensued. As Henchy J. stated the fact that:
“the defendants put to sea at all with passengers when they knew the boat to be dangerously unseaworthy meant that the defendants were consciously undertaking the primary responsibility if an accident happened …”
53. Similarly, in the case of Crowley v. AIB and O’Flynn [1987] 1 I.R. 282 a case in which the plaintiff sustained serious injuries while playing on a unguarded rooftop owned by the first named defendant, and designed by the second named defendant, the court held that the negligent omission of the first named defendant, in taking no steps to prevent children from playing on the rooftop when they were aware of that activity, led to a finding that the link between the plaintiffs’ injury and the architects’ negligence was broken by the fact that the bank knew that boys regularly played on the unguarded roof.
54. Accordingly, counsel for RPS submits, that not only was damage to the plaintiffs property foreseeable from the time that Mr. Boland directed the inclusion of the plaintiffs’ property in the demolition contract, RPS was unaware that this was an error and consequently the subsequent inclusion of the plaintiffs’ property in the demolition contract prepared by RPS cannot constitute a novus actus interveniens and that legal causation rests with LCC, by reason of its own negligence in directing the inclusion of the property in the demolition contract.
RPS submissions regarding Midland
55. It was submitted on behalf of RPS that Midland bears sole contractual responsibility for a series of errors without which the plaintiffs’ house would not have been demolished. Specifically it was submitted that Midland was responsible for the following four causative failures:
1. Failure to notify LCC of any “ambiguity, discrepancy, error or omission in or between the tendered documents” in accordance with its contractual obligations. In this regard the evidence established that Mr. Regan had noticed that the condition of the property was very different to its condition as shown in the photograph included in the demolition contract.
2. Midland was in breach of its obligation to LCC under the contract to be thoroughly acquainted with the conditions of the site and RPS relies upon the same grounds as does LCC in this regard i.e. its failure to identify the correct location of Plot D20; its failure to ascertain the boundaries of the site; its failure to notice the planning notice erected at the site and its failure to notice or take any action in relation to the works visibly underway within the site.
56. It was further submitted that Midland was obliged to notify the engineer under the contract immediately upon becoming aware of any ambiguity, discrepancy or other fault in or between the contract documents and that it failed to confine its activities to the site as defined in the demolition contract.
57. Furthermore RPS submits that as a matter of fact Midland should have been familiar with the site having already carried out the hedge clearance contract and that it therefore had or should have had “on the ground” knowledge of the site boundaries.
58. Midland was under a contractual obligation to confine its activities to the site (as defined in the demolition contract).
59. Midland did not take issue with the withholding of payment due to it by LCC for the demolition of the plaintiffs’ property.
Midland Submissions
60. It was submitted on behalf of Midland that it could have no liability to the plaintiffs, or for that matter, to LCC or RPS on the following basis:-
1. Long before LCC and Midland entered into the demolition contract, LCC and RPS had control and responsibility for identifying properties for demolition, acquiring ownership of the same and for communicating with owners or occupiers thereof;
2. There was a consensus among both RPS and LCC and all of LCC’s other contractors, before and after contracting with Midland, that the plaintiffs’ property was to be demolished;
3. Midland had no responsibility or involvement in the creation of the error whereby the property of the plaintiffs’ was included in the drawings for the demolition tender and contract;
4. There wass no contractual obligation on Midland to set about correcting long standing errors or identifying ownership of property or obtaining the consent of occupiers to demolition;
5. Other contractors were also directed to the plaintiffs’ dwelling house, i.e. the architectural history consultant, the safety consultant, the asbestos surveyor and the ESB. Midland attended on site to carry out the demolition upon being informed of the time for demolition by the architectural historian;
6. At any time up to the carrying out of the demolition, LCC could have excluded the property of the plaintiffs from the demolition contract.
Analysis and Conclusions
61. It was submitted on behalf of RPS that the court should approach liability on the basis of the “but for” test. Counsel submitted that factual causation is established against LCC on the basis that the plaintiffs’ house would not have been demolished but for the instruction given by Mr. Boland to include plot 156a in the list of properties to be demolished.
62. As to legal causation, counsel for RPS submitted that unless the acts or omissions of RPS amount to a novus actus interveniens, thereby breaking the chain of causation between the instruction of LCC and the loss sustained by the plaintiff, then legal causation is also established as against LCC.
63. I believe that it is clear that there was no single act or omission or indeed any combination of acts or omissions on behalf of RPS that could in this instance be regarded as a novus actus interveniens. From the moment that Mr. Boland directed the inclusion of plot 156a in the demolition contract, by reference to the photograph of the plaintiffs’ property, it was entirely foreseeable that this would result in just that and the subsequent demolition of the plaintiffs’ property. I should also say at this point that in my opinion there is no doubt at all but that what Mr. Boland said in relation to plot 156a was indeed a direction and not a comment or an observation. I fail to see how the words “add in Lancelot Ryans’ property”, coupled with the description of that property by reference to the photograph enclosed with Mr. Boland’s response to the draft demolition contract, could be construed otherwise.
64. While it is argued on behalf of LCC that the causative connection between the LCC instruction and the demolition of the plaintiffs’ house was broken by “not one, but by a number of intervening negligent acts on the part of RPS … each one of which, if they had not occurred would have avoided the accidental demolition of the plaintiffs’ house,” there is no escaping the fact that the direction given by Mr. Boland made it entirely foreseeable that the damage which was caused to the plaintiffs’ property would occur. And so therefore one of the essential ingredients of a novus actus interveniens i.e. that the damage caused should be unforeseeable is absent in this case. In McMahon and Binchy, Law on Torts, (4th Ed., 2013)at para. 2.79(3) consideration is given to the possibility that there can be a novus actus interveniens even where the damage caused is foreseeable, but this appears to arise only in the most extreme of cases:
“In Lamb v. Camden LBC [1981] QB 625, Watkins LJ described the squatters’ acts as “unreasonable conduct of an outrageous kind” when he held that the defendant wrongdoer could not be responsible for it. In Perl (Exporters) Ltd. v. Camden LBC [1983] 3 W.L.R. 769, the act of thieves, interposed between the defendants’ conduct and the plaintiff’s injury, meant that the defendants were not liable. If the intervener’s act, however, is merely careless, negligent, or perhaps even grossly negligent, it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case.”
65. Moreover, another essential ingredient in establishing a novus actus interveniens is absent in this case i.e. that of knowledge of the original negligence. RPS did not know that Mr. Boland’s direction was erroneous.
66. It does not however, follow that, simply because I have found that the conduct of RPS does not amount to a novus actus interveniens, that legal causation is established as against LCC or against LCC alone. I say this for two reasons. Firstly, liability in this case has to be considered in the light of the contractual relationship between the parties. LCC claims that both RPS and Midland failed to comply with specific contractual obligations that each had undertaken to LCC.
67. Secondly, I think that it is abundantly clear that the damage caused to the plaintiffs’ property was not the result of any single act i.e. the designation of plot 156a as a derelict house and land in the CPO, or the direction by Mr. Boland to include the plaintiffs’ property in the demolition contract, but rather was a consequence of a series of acts and omissions in which each of LCC and RPS played a part. In KBC Ireland Plc. v. BCM Hanby Wallace (Affirm) [2013] IESC 32 Fennelly J. said:
“Questions of causation often present difficult problems of analysis. In one sense, everything can be a cause even of remote events. Events have direct and indirect causes. The law does not usually recognise a mere causa sine qua non (sometimes called “but for” causation) as a sufficient basis for the imposition of liability on a defendant. Many acts, even if negligent, are too remote to provide a just basis for imposition of liability. In some cases, the law resorts to the concept of novus actus interveniens.”
68. In this case however, the concept of novus actus interveniens is not in my view applicable (for the reasons given above) and does not assist in resolving the question of liability. It is probably helpful at this point to sum up the chain of events that led to the demolition of the plaintiffs’ dwellinghouse, and the parties responsibility for each:
1. The designation of plot 156a as a derelict house and land in the schedule to the CPO published in September 2004. Mr. O’Donovan of RPS was responsible for this, but only did so after consultation with Mr. Hegarty of LCC.
2. The taking of a photograph of the plaintiffs’ dwellinghouse by either by Mr. Linehan or Mr. O’Keeffe of LCC, also in 2004, in the mistaken belief that this was plot 156a, and the labelling of this photograph with the description 156a. This belief flowed from the designation of plot 156a as a derelict house and land in the schedule to the CPO, in circumstances where there was no other property matching that description in the vicinity of plot 156a.
3. The preparation, in January 2006, by Mr. Boland of LCC, of a spreadsheet of properties to be demolished, to include plot 156a.
4. The submission of questions, observations and directions by Mr. Boland of LCC to Mr. Liam Barry of RPS, on 7th February, 2006, including a direction to add plot 156a to the list of properties to be demolished and the submission of a photograph of the plaintiffs’ property describing the same as plot 156a.
5. The lack of familiarity of the resident engineers with the precise boundaries of the CPO site, leading to Ms. Jennifer Conway of RPS to confirm to Mr. Egan of Midland that the plaintiffs’ house was to be demolished.
6. The failure of the resident engineers to query why works were being carried out on the plaintiffs’ dwellinghouse, having noticed the same, in circumstances where at least one of the them, Ms. Conway considered that the house was designated for demolition. This is in contrast to Ms. Clarke of LCC, who upon observing these works, checked to ensure that they were not being carried out upon property being acquired by LCC.
7. A breakdown in communications between Mr. Boland and Ms. Clarke of LCC leading to a disconnection of electricity supply from the plaintiffs’ premises. Had Mr. Boland realised what Ms. Clarke already knew i.e. that there was no house located and no electricity supply to plot 156a, then this would not have occurred and nor would the plaintiffs’ property have been demolished.
69. It follows from the above, that neither Mr. Boland nor Mr. Barry were sufficiently familiar with the site boundaries and, at least in Mr. Boland’s case, with the list of properties correctly identified for demolition in the EIS. Indeed, Mr. Boland confirmed in evidence that he did not even refer to the EIS which was the primary document for identifying the properties for demolition. It is possible that Mr. Barry was sufficiently familiar with this list and construed Mr. Boland’s direction as a new instruction to include an additional property to that list, but that seems very unlikely because he was told that the house was in fact the property located at plot 156a and appears to have accepted that to be the case. So it seems probable that Mr. Barry too was unfamiliar (at least at the time of his dealings with Mr. Boland) with the location and physical description of the properties to be demolished as set out in the EIS. Not only that, it is probable that at least part of the reason he accepted Mr. Boland’s direction without question was the description in the CPO of plot 156a as a derelict house and land, which description is of course attributable to RPS.
70. It is apparent from all of the above that a variety of acts and omissions of LCC and RPS led to the demolition of the plaintiffs’ property. It would be in my view to be wrong to attribute the demolition of the property to a single act or omission of any of the parties.
71. It goes without saying that the plaintiffs’ house should not have been demolished. Each of the defendants played a role in its demolition; LCC as the developer of the scheme, RPS as the consultants advising the developer on all aspects of the scheme, including the demolition contract and Midland as the demolition contractor. In my opinion there can be no doubt but that all of the defendants owed a duty of care to the plaintiffs to ensure that the scheme was constructed without causing damage to the plaintiffs’ property which abutted the site on which the scheme was being constructed, but no part of those lands were being acquired. In that each of the defendants played an active role in the demolition of the plaintiffs’ property, all of the defendants are concurrent wrongdoers within the meaning of Section 11 of the Civil Liability Act, 1961 (“The Act”). That section states:
“11.—(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
2) Without prejudice to the generality of subsection (1) of this section—
(a) persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage;
(b) the wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them;
(c) it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
(3) Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage.
(4) – (6) are not relevant for the purposes of these proceedings.”
72. “Wrongdoer” is defined in Section 2 of the Act as meaning a person who commits or is otherwise responsible for a wrong. “Wrong” means a “tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible and whether or not the act is also a crime, and whether or not the wrong is intentional.” There is no doubt at all that the plaintiffs’ property was demolished as a result of a wrong in which each of the defendants played a part with varying degrees of responsibility.
73. Section 21 of the Civil Liability Act 1961 states:
“21.—(1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.”
74. It is clear from section 21(2) that the Court may apportion liability amongst the parties on a just and equitable basis having regard to the degree of fault of the various parties in the occurrence of the event that gave rise to the damages of the plaintiffs, and also that the Court may exempt any person from liability to make a contribution. In the case of ACC Bank Plc. v. Brian Johnston, practising under the style and title of Brian Johnston & Co. Solicitors v Joseph Traynor and Seamus Mallon third parties, [2011] IEHC 501, Clarke J. considered how the Court should approach the question of “fault” under section 21 of the Act. He cited with approval the interpretation of that word as it appears in section 34 of the Act by the Supreme Court in the case O’Sullivan v. O’Dwyer [1971] I.R. 275 where Kenny J. said “it is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment.” While O’Sullivan v. O’Dwyer was concerned with contributory negligence, Clarke J. was satisfied that the interpretation of the word fault was equally applicable where concurrent wrongdoers are concerned.
75. Clarke J. also cited Keane J., as he then was, in the case of Iranród Éireann v. Ireland [1996] 3 I.R. 321, at 358 in which he stated:-
“However difficult the consequences may be of using blameworthiness as the exclusive criterion for apportioning liability either in cases of contributory negligence or contribution between concurrent wrongdoers, these are less than those caused by any attempt to make a causation the criterion”.
76. Noting himself that “it is clear, therefore, that, in Irish law, the Court does not attempt to disentangle the causal effect of the wrongdoing of two concurrent wrongdoers”, Clarke J. went on to do an analysis of the negligence of each of the parties involved. He went on to state “within each category of potential wrongdoing … there is a range or gradation of degrees of blameworthiness. As pointed out earlier, negligence can range from mere inadvertence to falling short of an appropriate standard which is highly culpable.” In that particular case, having analysed the respective negligence of the defendant and the third party, he came to the conclusion that the defendant’s negligence could be placed towards the midrange of the scale of solicitor’s negligence, whereas the deliberate breach of an undertaking on the part of the third party solicitor had to be considered as being more serious than an a act of negligence and consequently he considered that in the scheme of blameworthiness, it was appropriate to apportion blame as between the parties as to 70% in the case of the third party who failed to comply with an undertaking, and 30% in the case of the defendant who he found to have acted within the midrange of negligence.
77. Applying these principles, I will deal first with the liability of Midland. Midland were shown a photograph of the property and were asked to tender a price for its demolition, (along with other buildings to be demolished). Midland representatives were taken on a tour of the site by Ms. Jennifer Conway, resident engineer of RPS and it was confirmed that the plaintiffs’ property was to be demolished. Following a safety survey of the property, Midland were requested to organise the removal of asbestos from the property which they did. Midland were requested to attend on site at the same time as the representative of Tobar Archaeologists on the date on which the property was scheduled for demolition.
78. It was suggested that Midland should have been able to identify from the maps furnished that the plaintiffs’ property was not within the boundary of the map furnished with the demolition contract. I do not accept this submission for several reasons. Firstly, Midland are demolition contractors and not consulting engineers. While they were contractually obliged to familiarise themselves with the site, I believe they discharged this obligation by touring the site with the resident engineer and confirming the structures to be demolished. Had there been any obvious ambiguities, I believe Midland would have been under an obligation to clarify same, but given the fact that they were given a picture of the structure and had it confirmed to them by a resident engineer of RPS and the other factors above, I do not think it would have been reasonable to expect Midland to do anything further to confirm that the plaintiffs’ dwellinghouse was actually within the site boundaries as shown on the CPO map. Furthermore, this would in any case have been difficult for Midland to do because the super-imposition of the photographs of the plaintiffs’ house on the map furnished with the demolition contract was done in such a way as to eliminate from the maps supplied the actual location of the plaintiffs’ house.
79. Secondly, it was submitted that there was sufficient evidence of recent works on the plaintiffs’ property to require Midland to pause before demolishing the structure and to make appropriate enquiries as to who may have been carrying out the work. The most obvious of those works were the removal of the roof structures and the gable walls of the house and outbuildings. Mr. Egan stated in evidence that he assumed that the former owners of the property i.e. the plaintiffs were extracting materials from the site in order to realise their salvage value. In my view this is a perfectly rational explanation and I think it is also striking that the representative of Tobar Archaeology saw fit for the demolition to proceed also, or at least there was no evidence before the Court that the Tobar representative thought otherwise.
80. While there were also works of drainage and preparatory works for the laying of a carparking surface, these did not attract Mr. Egan’s attention. However, Mr. France in his evidence stated that he visited the site on between five and ten occasions and he did not notice any works of this kind either.
81. It was also suggested that Mr. Egan should have seen the planning notice on the site of the plaintiff’s dwellinghouse, which he denied seeing on the day of the demolition. He also said in evidence that even if he had seen it, he would have ignored the notice. Planning notices can remain on properties for a long time after they have any relevance. And while the evidence given in this case was that the notice was recent, it does not follow that it would have attracted any more attention than an older planning notice. But in any case, given the somewhat overwhelming character of all of the other instructions and information given to Mr. Egan, and his interaction with the RPS resident engineers and other advance contractors, I do not believe that Mr. Egan was given any reason to pause before proceeding with what he believed was his contractual obligation to demolish the structure on the site.
82. It was further submitted, on behalf of RPS, that since Midland had also been awarded the contact for the removal of unwanted hedges on lands acquired for the scheme, and since it had performed that contract in the months leading up to September, 2006, that it would have been familiar with the site boundaries including those in the vicinity of the plaintiffs’ house. I do not accept this submission for two reasons. Firstly, it assumes that the same personnel were involved for Midland in performing the hedge contract and the demolition contract, whereas in fact Mr. Egan confirmed that performance of the hedge contract of Midland was undertaken by his colleague, Mr. Austin. Secondly, it also assumes that in performing the hedge contract, Midland would have observed the site boundaries and would therefore have learned that the plaintiffs’ house was outside of the site. This is clearly incorrect because the site boundaries were not defined by a fence line in the vicinity of Plot 156a/the plaintiffs’ house and this was confirmed by Mr. France of RPS.
83. It was also submitted that the fact that Midland did not pursue LCC for the payment due to it by LCC in connection with the demolition of the plaintiffs’ property was an admission of wrongdoing. Mr. Egan in his evidence said it would not have been a cost effective exercise for him to pursue LCC for the amount due, which was €3,500, and this is, to me, a good answer to that submission.
84. For all of these reasons, I do not believe that Midland was negligent in proceeding to demolish the plaintiffs’ property and that it would not be appropriate to attribute any blame to Midland for doing so. Accordingly, I am satisfied that Midland is entitled to a full indemnity from LCC and RPS in respect of any liability it may have to the plaintiffs in these proceedings.
85. As to LCC and RPS, while each were negligent in acts and omissions that resulted in the demolition of the plaintiffs’ property, the significant distinction between them is that RPS was retained by and paid for its services by LCC. Therefore RPS not only had a duty of care to the plaintiffs but it had separate duties and obligations to LCC under the terms of the multiple framework contract of 25th July, 2000 and the model form of agreement between a client and consulting engineers which applied to the scheme. While LCC, as with most road authorities, would have expertise of its own in relation to the undertaking of road improvement schemes and the statutory processes associated with such schemes, the very reason that it retained RPS was because of the scale and complexity of this particular scheme which meant that LCC required external assistance from experienced and well resourced consultants such as RPS. Of its very nature what that means is that LCC was reliant upon RPS to undertake its services in a competent and diligent manner and part of this obligation necessarily means being alert to and correcting any errors that may be made by LCC in its interaction with RPS in the implementation of the scheme. Furthermore, some of the very factors that contributed to the circumstances that resulted in the demolition of the plaintiffs’ property had previously been raised by LCC in correspondence with RPS and while those issues may have been responded to satisfactorily by RPS at the time (in correspondence at least, whatever about on the ground), nonetheless that correspondence should have served as a warning light to RPS that all was not as it should be on site.
86. While it is unnecessary, in the words of Clarke J. “to disentangle the causal effects of two concurrent wrongdoers”, it is clear that each of LCC and RPS played their part in the events that unfolded. LCC gave a mistaken instruction to RPS, and RPS should have realised that the instruction was made in error, or should have raised queries or investigated it further in order to be satisfied that it was possible to implement the instruction before proceeding to incorporate it into the demolition contract, particularly in circumstances where the first draft of the demolition contract prepared by RPS had correctly identified the properties to be demolished.
87. In determining blameworthiness as between LCC and RPS the Court must have regard to the contractual relationship between RPS and LCC and furthermore it should take into account the fact that some of the very matters that contributed to the circumstances that resulted in the demolition of the plaintiffs’ property had previously been raised by LCC in correspondence with RPS. Against that background, it is my view that RPS failed in its duty to LCC to provide its services to LCC with all reasonable care and diligence. But even if RPS considered that it had dealt satisfactorily with the earlier concerns expressed by LCC in correspondence, RPS in any case failed in its duty of care under the terms of its contract with LCC, in failing to supervise the site properly, in failing to ensure that the resident engineers were sufficiently familiar with the boundaries of the site in failing to ensure the site boundaries were complete in the vicinity of the plaintiff’s property and in failing to check that the premises shown in the photograph provided by Mr. Boland was located at plot 156a, or that it was one of the premises scheduled in the EIS for demolition.
88. For its part however, there can be no doubt but that LCC was negligent in instructing RPS to include plot 156a in the demolition contract; in incorrectly identifying plot 156a as the plaintiffs’ property, and also in failing to ensure that its personnel who were working on the project were sufficiently familiar with site boundaries and project documentation, such as the material assets part of the EIS which included the list of properties to be demolished. While LCC has submitted that it cannot be held vicariously liable for the acts of its independent contractors, I do not think that this defence avails LCC in circumstances where it has itself been found to be negligent. In considering blameworthiness, it is in my view just and equitable to apportion a measure of responsibility for the damages suffered by the plaintiffs to LCC also.
89. Having regard to the separate duties owed by RPS to LCC under the terms of the multiple framework contract and the model form of agreement, I think it appropriate to apportion blame as between LCC and RPS in the proportions of 30% to LCC and 70% to RPS for the purposes of section 21(2) of the Civil Liability Act, 1961. In view of my earlier finding that Midland is entitled to a full indemnity from LCC and RPS, I hereby exempt Midland from liability to make any contribution to the plaintiffs’ damages. It follows from the above that the amount payable under the terms of the settlement agreement between the parties, including the plaintiffs’ costs shall be paid as to 70% by RPS and 30% by LCC. However, there shall be reduced from the amount payable by LCC the amount of payments made by LCC , ex gratia , to the plaintiffs in the sum of €20,000.
McCarthy v Kavanagh (t/a Tekken Security)
[2018] IEHC 101
JUDGMENT of Mr. Justice Cross delivered on the 6th day of March, 2018
1. The plaintiff was born on 13th July, 1985. He is a psychiatric nurse by profession. After secondary school, he went to University College Cork where he completed a BSc in psychiatric nursing in 2008 and was employed thereafter by the HSE in North Lee Mental Health Services from 2008. After his employment, he decided for promotional purposes to get a higher diploma in acute and in enduring mental illness and in October 2011, he was in the course of studying for this diploma.
2. Briefly put, the plaintiff, who throughout the incident was the innocent party in all altercations, attended the second named defendant’s supermarket premises in the early hours of 31st October, 2011, and after an incident was evicted by the first named defendant’s security staff and was shortly thereafter assaulted by a third party. The plaintiff suffered serious injuries and claims that these injuries were caused by reason of the negligence of the defendants or either of them.
3. The defendants initially were separately represented and filed full defences including each blaming the other but both defendants are now represented by the same firm and no issue arises between them. The defendants deny liability, deny that they owed any duty of care to the plaintiff, plead a novus actus interveniens and further pleaded the provisions of s. 35(1)(i) of the Civil Liability Act 1961.
4. The facts in this case are not greatly in issue save for two matters which will be considered later and considerable evidence was furnished by the witnesses and also by CCTV footage and stills which will be discussed below. I find the essential facts are as follows:-
(i) On the evening on 30th October, 2011, Halloween weekend and also the weekend of the Cork Jazz Festival, a very busy weekend, the plaintiff and his then girlfriend (now his wife) went to a well known public house, Costigans in Washington Street, had a number of drinks there and went on with friends to the nearby licensed premises and indeed, nightclub, known as Reardans, opposite the Courthouse.
(ii) The plaintiff had a number of drinks in both premises and he says he would not have been fit to drive but there is no suggestion and no evidence exists that alcoholic drink or indeed any other act of Mr. McCarthy was in any way to blame for what happened. Mr. McCarthy was, at all stages, an innocent party. Though contributory negligence was pleaded against the plaintiff, this has not been maintained and no evidence exists of any contributory negligence. For the avoidance of doubt accordingly I hold that there is no contributory negligence against the plaintiff.
(iii) At some time after 2am, Mr. McCarthy and Ms. M decided to go to the first named defendant’s Centra shop on the Grand Parade, Cork, to purchase some rolls to eat. The CCTV cameras show a very large number of people milling around in front of the Centra supermarket. It was Halloween weekend. There was clearly a fancy dress engagement going on nearby as people are to be seen in “drag” and other fancy dress outfits. It is common case that the gardaí had just left the front of the premises having to deal with an incident or disturbance in front of the shop moments before the plaintiff arrived. However, though the crowd outside the supermarket was very large, the CCTV films show, apart from the central actors in the affair that other citizens were milling around and took no part in what occurred.
(iv) There were a large number of patrons in the shop, along with the staff and two security guards who were on duty on behalf of the second named defendant. One of them, Mr. F was back near the counter and the other, Mr. P was near the front door. A queue formed up on the right hand lane as one looks at it from the front door which queue then turned slightly to its left in front of the deli counter.
(v) The plaintiff and Ms. M entered the shop and made their way up the queue with a number of people in front of them including two ladies, who turned out to be the O’M sisters who wore fancy or distinctive dresses.
(vi) A man, who turned out to be Mr. O’C, entered the shop with a cardboard box on his head by way of fancy dress presumably. He attempted to go to the deli counter direct without going through the queue but were redirected by the guard, Mr. F, back to the queue. Mr. O’C then is seen attempting to jump the queue, by moving upwards towards where the O’M sisters were placed in front of the plaintiff. The plaintiff and his fiancÉ, not unreasonably objected to this. It is possible that one of the O’M sisters who were in front of the plaintiff indicated that Mr. O’C was with them and that one of them would leave the queue to enable Mr. O’C to take his place.
(vii) In any event, Mr. O’C is seen, and is noticed by the guard, Mr. F, to be manhandling his way up to the front and this, apparently, caused some protest from the plaintiff and his girlfriend. One of the O’M girls went over to the security guard and the plaintiff is seen calling out probably to her or to the guard, something to the effect that people should mind their manners. Both Mr. O’C and in particular the O’M sister who was left in the queue objected to the plaintiff’s conduct and words followed and the remaining sister in the queue is assaulted the plaintiff around his jaw and mouth.
(viii) The security guard, Mr. F, went over to the queue and because he apparently wanted to separate the plaintiff who was, as he saw it, one person in a row with three people, he escorted the plaintiff out of the shop. Mr. F was not it seems aware of Ms. M’s connection to the plaintiff or that he was in fact separating the plaintiff from her. He handed the care of the plaintiff over to the second security guard, Mr. P, and omitted to tell Mr. P, as he now accepts to be the case, that the plaintiff was the innocent party in the affair.
(ix) The plaintiff was followed almost immediately from the shop by the O’M sisters and by Mr. O’C. Mr. F apparently did request them not to follow but did not communicate to Mr. P that the three persons exiting the store immediately after the plaintiff were the perpetrators of the row against him.
(x) When the plaintiff exited the premises he was chased by the three pursuers who attempted to hit him about the head while at all times the plaintiff offered no resistance and backed away trying to cover his head to prevent these assaults.
(xi) The plaintiff then managed to break loose from his pursuers and made for the front door of the shop seeking safety. He was pursued by Mr. O’C.
(xii) Mr. P did not know that the plaintiff was the innocent party in the initial row and did not witness the plaintiff being beaten and pursued outside. Mr. P barred the plaintiff’s re-entry and either pushed him away or puts his hands up so as to cause the plaintiff to bounce off him. Whether Mr. P merely barred the plaintiff with his two hands as he maintains or pushed the plaintiff back is one of the few factual matters of dispute.
(xiii) The plaintiff states that he was pushed backwards by Mr. P and fell over an unconnected person, Ms. H. In this, he is supported by Ms. L O’S an independent witness who was inside the store and also another independent witness, Mr. C O’S who was outside. Mr. P says that he blocked the plaintiff with his two hands and Ms. AG, a third independent witness heard Mr. P telling the plaintiff to stop and did not see him push the plaintiff. Examining the photographs, it is clear that whatever occurred and whether or not Mr. P’s hands were moving towards the plaintiff in a push or were merely held up, the force of the impact of the plaintiff on Mr. P’s hands caused him to stumble back towards Ms. H and towards the assaulting arms of Mr. O’C. I believe that all witnesses were attempting to tell the truth as they saw it but examining the CCTV and the still photographs especially from Camera 5, none of them show Mr. P with his two hands raised in a blocking position as he maintained. The photographs do show the plaintiff in collision with Mr. P and being pushed or falling backwards and in particular one photograph taken at 02:25:34:64 exhibited in Mr. Romeril’s report shows Mr. P with not two hands but one hand raised and I conclude that what Mr. P did was, in fact, to push the plaintiff back towards the crowd and in particular, towards Mr. O’C. However, I am not persuaded that the resolution of this factual dispute causes any substantial difference to the outcome of the case.
(xiv) The only other issue of fact in dispute is whether the plaintiff then fell and knocked over Ms. H due to the direct impact of the push or whether he was assisted in that impact by being entangled with Mr. O’C. The defendants contend that it was the entanglement of the plaintiff with Mr. O’C after he had been pushed or blocked backwards which caused the plaintiff to knock down Ms. H. Again, while the film is not definitive on this, I hold that the best explanation for what occurred and what is shown in the photographs is that indeed, the plaintiff was pushed back in a falling motion and was grappled by Mr. O’C as he was falling. It was a combination of Mr. P’s push and Mr. O’C that caused the impact with Ms. H. However, again I am not persuaded that the resolution of this factual dispute causes any significant change in the outcome of this case. It should, of course, be pointed out that Mr. C must have been of the view that the main cause of the impact with Ms. H, his girlfriend, was the plaintiff, hence Mr. C’s response.
(xv) The plaintiff stumbled backwards from the push of Mr. P and with the assistance from Mr. O’C who had now caught up with the plaintiff and this caused the plaintiff to trip over and knock to the ground Ms. H who had nothing to do with the incident but was standing on the payment outside the shop.
(xvi) Unfortunately Ms. H’s boyfriend, Mr. C who was behind or beside Ms. H intervened with a massive fist to the plaintiff’s head causing him to fall to the ground crack his head and suffer a serious head and brain injury.
(xvii) Ms. M came out from the shop just as this was happening she herself remonstrated with and is then assailed by the OM sisters and then Mr. M saw the plaintiff on the ground bleeding profusely and went over to him.
(xviii) The gardaí came and Mr. C was subsequently charged and pleads guilty to Assault Occasioning Serious Harm and was appropriately sentenced and the O’M sisters and Mr. O’C were appropriately sentenced for public orders offences.
(xix) The plaintiff has no recollection of the incident or its aftermath until he awoke after being in a coma in hospital.
(xx) The entire incident is captured by a number of CCTV cameras. I have had the benefit of viewing these cameras and the stills extracted from the films on a number of occasions. The CCTV film, as is normal, is not a continuous movie but jumps from frame to frame as what is captured is not a continuous flow but rather millisecond after millisecond. I have also had the benefit of a frame by frame analysis by consulting engineers of what was to be seen and a discussion by Counsel of these matters.
(xxi) The entire incident occurred in real time not in fragmented milliseconds. This case can only be assessed by allowing for the fact that the incident happened in real time. The interval between the plaintiff being removed from the shop and being hit by Mr. C is less than ten seconds which period involved him being beaten by O’M sisters and by Mr. O’C, braking loose from them making for the door being pushed back and knocking over Ms. H as well as the punch. The interval between the plaintiff being pushed back by the security guard and the blow from Mr. C is just two seconds.
5. The issues of liability maybe summarised as follows:
(a) Did the defendants owe to the plaintiff a duty of care in the circumstances?
(b) If so were the defendants in breach of their duty of care.
(c) If so were the plaintiff’s injuries caused by reason of the defendants’ breach are the actions of Mr. C in assaulting the plaintiff to be regarded as a novus actus interveniens.
(d) If there is a duty of care and if the principle of novus actus interveniens does not apply, do the provisions of s. 35(1)(i) of the Civil Liability Act serve to defeat the claim.
Does the defendant owe the plaintiff a duty of care in the circumstances and were the defendants in breach of their duty of care?
6. I have had the benefit of extensive submissions on behalf of the plaintiff and the defendant of which I have read.
7. The defendants submit that insofar as they owe a duty of care to the plaintiff it does not extend to the conduct of third parties such as Mr. C and that Mr. C’s assault and the injuries sustained by the plaintiff were not reasonably foreseeable and certainly not reasonable probable and in the absence of any special relationship between the defendants and Mr. C the imposition of responsibility on the defendants for the criminal actions of Mr. C cannot be justified.
8. The defendants admit that they owe the plaintiff a duty of care while in the Centra premises and this duty is owed not just to the plaintiff but to all customers and the defendants assert that their duty was “to take reasonable care to ensure the safety of such customers by employing security staff, floor staff, operating systems of queuing as they did and expelling customers and refusing re-entry were that appeared recently necessary”. They submit that the duty did not extend to policing outside their premises on Washington Street and in particular they submit had they left their post to police any matter outside the ambit of their role they would have been guilty of dereliction of their duty to remaining customers. The defendants submit that the plaintiff was ejected from the premises in order to avoid a confrontation inside the premises which if it had escalated would have affected a large number of customers and that it was not reasonably foreseeable that Mr. O’C or the OM sisters would follow the plaintiff outside or that the security guard’s decision to decline the plaintiff’s permission to re-enter would result in Mr. C punching the plaintiff as he did. It is submitted that in order for the defendants to have a liability for the actions of third parties that they must be “a special relationship” as referred by Hogan J. in Ennis v. Heath Service Executive and Jarlaith Egan [2014] IEHC 440 and that no such special relationship existed between the defendants and Mr. C.
9. The plaintiff in their submissions rely upon the ex tempore ruling of this Court on the application of the defendants for a Direction on Day 7. That determination by the court does not satisfactorily deal with the issue of duty of care. The defendants’ Direction application was on the principal of novus actus interveniens and, for that purpose, counsel on behalf of the defendant conceded that it was open to the court to find (a) that the defendants owe a duty of care to the plaintiff, (b) that that duty does not cease at the door of the supermarket, (c) that the defendants breached or may have breached that duty in allowing the three pursuers to follow the plaintiff without any ramifications and also possibly in the manner of their eviction of the plaintiff in the first place by not advising the security guard of the facts and by failing to allow the plaintiff back into the store and pushing the plaintiff out into the open air. In the aforementioned ruling the court stated that the defendants “had a duty knowing the plaintiff who they had excluded from their premises and who they had allowed to be pursued by three pursuers would be offered safety by the security official and could easily have been re-admitted as though he was pursued by Mr. O’C he had escaped from his clutches and the security guard of which he could have admitted the plaintiff and stopped Mr. O’C and let (the plaintiff) back in. And also they had a duty not to push the plaintiff back towards his assailant …” the plaintiff’s rely upon that determination.
10. Given that the determination was limited to the issue of novus actus interveniens, in the circumstances when, for the purposes of the direction application, counsel for the defendant conceded that a duty of care existed beyond the door of the shop, my decision is not determinative of the issue now raised by the defendants, after all the evidence has been heard as to whether they owed a duty of care to the plaintiff.
11. Prior to the decision of Glencar Exploration Plc. v. Mayo County Council (No. 2) [2002] 1 IR 84 a plaintiff seeking to establish the existence of a duty of care had to satisfy two tests. That there was a sufficient proximity of relationship between the parties to warrant the imposition of a prima facie duty of care and that there were no policy reasons for not imposing such a duty. After Donoghue v. Stevenson [1932] AC 562 courts in England and in Ireland utilised the Biblical simplicity of the Neighbour Principle of Lord Atkins to establish whether a duty of care exists.
12. Anns v. Merton London Borough Council [1978] AC 728, referred to this test to be: is there a “sufficient relationship or proximity or neighbourhood such that in a reasonable contemplation of the former carelessness on his part may be likely to cause damage to the later, in which case a prima facie duty of care arises…” and as the learned authors in McMahon & Binchy (4th Ed.) at para. 6.13 state:-
“Proximity does not require closeness in either space or time. Liability in negligence may attach to conduct that results in injury or damage thousands of miles away in decades later to a plaintiff not born at the time when the conduct was contemplated…”
13. The language of Anns was adopted by McCarthy J. in the Supreme Court in Ward v. McMaster [1988] I.R. 337. Though in Glencar, Keane C.J. was of the view that “by no means clear” that Ward v. McMaster had involved unqualified endorsement of the Anns two step test and Keane C.J. stated the test for the existence of a duty of care involves four rather than two steps as follows:-
“There is, in my view, no reason why courts determining whether a duty of care arises should consider themselves obliged to hold that it does in every case where injury or damage to property was reasonably foreseeable and the notoriously difficult and elusive test of ‘proximity’ or ‘neighbourhood’ can be said to have been met, unless very powerful public policy considerations dictate otherwise. It seems to me that no injustice will be done if they are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff…” (Emphasis added)
14. The somewhat academic discussion as to whether the authorities after Glencar (above) introduced a three step rather than a four step analysis need not concern us here.
15. In the vast majority of cases, it is not, of course, necessary to analyse the principles in Glencar to establish a duty of care. Road users clearly owe duties of care to other road users, employers to employees, local authorities to persons injured to defective repairs or of the highway. But in this case, as the existence or nature of the duty of care is in issue, reference must be made to the duty of care as clarified by Glencar and subsequent cases.
16. The defendants submit that they owe no duty of care in respect of the actions of Mr. C. Whether Mr. C’s actions represent a novus actus interveniens will be considered later but at this stage, the issue is whether the defendants owed a duty of care to the plaintiff in respect of their actions or inactions. It is important not to confuse or to overlap the issue of the existence of a duty of care and the issue of novus actus interveniens. The issue of novus actus interveniens only arises if a duty of care is found and there is breach of it.
17. The defendants did not punch the plaintiff or knock him on the ground that is clear and the defendants accept that they were under a duty to take “reasonable care to ensure the safety of their customers…or (by) operating systems of queuing…and (by) expelling customers and refusing re-entry where that appeared reasonably necessary”. It is the action of the defendants rather than of Mr. O’C or the OM sisters or Mr. C that are relevant in relation to the existence of the duty of care. Mr. O’C, the OM sisters and Mr. C are not agents of the defendants whether the defendants are liable for what Mr. C did will be considered under novus actus interveniens.
18. The plaintiff to whom the defendants owed a duty of care on the premises was ejected, reasonably peacefully, though with some protest, from their premises. The defendants were entitled to do this. The first security guard, Mr. F, says, and I accept this to be the case, that he advised Mr. O’C and the OM sisters that they should not follow the plaintiff and this, I accept, was part of the defendants’ duty of care. Having done so, however, Mr. F did not advise Mr. P, that the plaintiff was the innocent party in the affray. Mr. P knowing that Mr. F was a highly trained security guard, naturally assumed that the plaintiff was the guilty party. Mr. F did not advise Mr. P that the three persons immediately following the plaintiff out of the premises were those who had been involved in an altercation and indeed, an assault on the plaintiff which was the reason that the parties were separated. Not knowing that the three pursing persons were those who had assaulted the plaintiff, Mr. P had no reason to notice what was apparent to independent persons that immediately he left the shop, the plaintiff was being assailed by the pursing threesome, was offering no resistance but shielding his head from their blows. Similarly, Mr. P had no reason to notice, and did not notice that the plaintiff had broke free from his assailants and was running to the shop door for safety. When he saw the plaintiff, attempting to re-enter the premises, Mr. P did not know that he had been assaulted both inside and outside the premises and was attempting reasonably to flee from his assailant.
19. As Mr. P very fairly said in his evidence had he known these things, he would not have prevented the plaintiff from being readmitted into the premises, would not have put his hands up or pushed the plaintiff away causing the plaintiff to move or fall backwards over Ms. H and would rather have let the plaintiff in and denied admission to Mr. O’C. It is clear that if the issue is confined to the neighbour principle then in the words of the good neighbour Mr. P, the plaintiff would have been readmitted and his injuries would not have occurred.
20. The issue here to be discussed is whether a duty of care in the light of Glencar was owed by the defendants after they had evicted him from their premises. I fully accept the submission by the defendants that they were not to know and indeed were completely ignorant of Mr. C’s propensities or indeed of his presence. However, to introduce Mr. C into the discussion at the moment is again to fall into the trap of conflating the issues of novus actus interveniens with that of a duty of care.
21. In Lyons v. Elm River Limited (Unreported, High Court, Barr J., 16th February, 1996), the High Court on appeal from the Circuit Court imposed liability upon the operators of a disco in respect of assault from the plaintiff. I do not accept that this liability was on the basis of any “special relationship” as submitted by the defendants, rather the defendants were aware of the menace of the perpetrators towards the class of person like the plaintiff and they gave no warnings to the plaintiff before he left the premises though they were aware of other assaults.
22. However, insofar as a “special relationship” between a plaintiff and a defendant, rather than between the defendant and the perpetrator, is required, the plaintiff in this case was in a “special relationship” with the defendant. The plaintiff is not a stranger unconnected with the defendants’ premises who was assaulted out on the Grand Parade. The plaintiff was a customer in the defendant’s premises. The defendants admit that they owe a duty of care to him and to other customers. In this case, I find the defendants’ duty of care did not stop at the door of their premises. The defendants were entitled to eject the plaintiff though he was entirely innocent in order to avoid confrontation with Mr. O’C and the O’M sisters. This is part of the duty of care they owed to their customers or visitors. Mr. F says that he advised the O’M sisters and Mr. O’C to remain in the store and I accept that that also was part of the defendants’ duty of care. Being aware of the dangers posed by a continuation of the row, Mr. F ought to have noticed the three following the plaintiff and ought to have advised Mr. P of the situation. This, at the very least, would have led Mr. P, if he himself could not have persuaded the pursuers to remain in the store, to keep what was going on outside the store under observation and rather than pushing the plaintiff back as I find to be the case or blocking his re-admittance as he himself contends, he would have allowed the plaintiff back into the safety of the store. The neighbour question has been answered by Mr. P when he fairly said that had he known the circumstances he would, indeed, have not had denied the plaintiff access to the store. A property owner or its security staff, duly entitled, may lawfully evict a customer from their premises, but that eviction cannot involve the person, in effect, being thrown to the wolves, with the property owner having no concerns of legal liability for anything that occurred once the eviction had taken place.
23. Following the decision of Glencar, I hold that injury to the plaintiff, though not necessarily the indexed injury, was reasonably foreseeable as when the plaintiff was denied readmission, the defendants ought to have been aware that he was likely to have been assaulted and injured. The proximity test has been met. I also hold that in all the circumstances it is just and reasonable that the law should impose a duty of care upon the defendants and indeed that there are no public policy considerations to prevent it.
24. It is just and reasonable to impose a duty of care upon the defendant as otherwise security guards could eject customers involved in a minor row and thereby subjecting their former customers to risk of more serious injury outside their premises. If a defendant were entitled, in effect, to wash their hands under a supposed rule of law that no duty of care extends beyond their hall door, such a rule would not merely legitimise walking by on the other side of the road but also legitimise pushing a traveller out into the arms of brigands.
25. The duty of care is not to act as a policeman, it is not necessarily to intervene if persons unconnected and, therefore, without any “special relationship” with the defendants’ premises are in danger (though I am not deciding that point) but rather where somebody who has been, in effect, placed in danger by the actions of the defendants is attempting to avoid that danger and such danger can readily be avoided by the readmission of the party into safety then it is not only just and reasonable that the law should impose a duty but public policy considerations cry out for such duty to be imposed.
26. Having decided to eject the plaintiff, Mr. F ought to have informed Mr. P that the plaintiff was, in fact, the innocent party. He did not do so. Having advised the three persons that they should not leave the premises Mr. F ought to have noticed that rather than accepting his advice, they were in hot pursuit of the plaintiff, he did not take any such notice. Furthermore, having seen the three in pursuit of the plaintiff, Mr. F should have notified Mr. P of this fact. He did not do this. Had Mr. P been aware of the facts, he would have kept the parties under observation and when he saw the plaintiff being assailed by his pursuers in attempting to return, he would have admitted him rather than forcibly excluding him. Unfortunately, this did not occur. The defendant accordingly did owe a duty of care to the plaintiff and were in breach thereof.
Novus Actus Interveniens
27. The determination made at the close of the plaintiff’s case on the application for direction by the defendant in relation to novus actus interveniens is not necessarily determinative of the issues and I must revisit the issue de novo in the light of all the evidence heard.
28. The defendants submit that the causal link between any actions of the defendant and the plaintiff’s injury was broken by the actions of Mr. C, a unconnected third party severely and criminally striking the plaintiff and being the sole cause of his injuries. The defendants submit that any action or inaction on their part was a causa sine qua non but not the causa causans. The defendants rely upon the passage of Charlesworth and Percy on Negligence (13th Ed.) at para. 6-77:-
“Generally where a claimant’s damage has resulted from the act of another person independent of the defendant, the mere fact that the defendant’s breach of duty has given, as it were, the third party the opportunity to intervene does not suffice to make the defendant responsible for the consequence of the intervention. Rather these consequents must be within the scope of the risk created by the defendant’s conduct.”
29. The defendants also cite the passage from the learned authors of McMahon and Binchy (4th Ed.) para. 2.49:-
“In examining the circumstances when the intervening act would have the effect of relieving the original perpetrator, two factors feature in the judge’s approach: first, whether, and to what extent the intervening act was foreseeable by the original actor, and second, what was the mental attitude of the subsequent intervener – was he careless, negligent, grossly negligent, reckless or did he intend to do the damage?”
30. The Supreme Court in Breslin v. Corcoran [2003] 2 IR 203; stated per Fennelly J., in relation to novus actus interveniens:-
“From all these cases, I draw the following conclusion. A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.”
31. The defendants, in effect, submit that there is an unbridgeable chasm between their actions or inactions and the act of Mr. C. The defendants concede that the situation might be different if the injuries sustained was inflicted by the OM sisters or Mr. O’C. The defendants also conceded that had Ms. H, who the plaintiff knocked down, jumped up and injured the plaintiff by an assault that there might be a connection with their actions but contend that the action of Mr. C is independent of any act or inaction of the defendants.
32. The learned authors of McMahon and Binchy summarised the law in relation to novus actus interveniens at para. 2.79 as follows:-
“From the case law we may state the following propositions with some degree of confidence:-
(i) If the third party’s act is wholly unforeseeable then the original defendant will not be liable.
(ii) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act, or is very likely, then the original defendant is still considered the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which would break the chain of causation between the plaintiff’s damages and the defendant’s conduct. This is more obviously true when the intervening event is not a voluntary act at all: where A pushes B against C.
(iii) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervener’s act in addressing this problem. If the intervener’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly, if the third party’s act is intentional in Lambe [Lambe v. Camdon LBC [1981] QB 625] Watkins L.J. described the squatter’s acts as ‘unreasonable conduct of an outrageous kind’ when he held that the defendant wrongdoer could not be responsible for it. In Perl [Perl (Exporters) Limited v. Camdon LBC (1983) 3 WLR 769], the act of thieves interposed between the defendant’s conduct and the plaintiff’s injury meant that the defendant was not liable. If the intervener’s act, however, is merely careless, negligence or perhaps even grossly negligent it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case in Crowley v. AIB [and O’Flynn & Ors [1988] ILRM 225]. We have seen that a negligent omission by the defendant bank was deemed sufficient to break the chain and relieve the third party architects.
(iv) The defendant (i.e. the original wrongdoer) will not be relieved of responsible if the act or damage caused by a third party is ‘the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not’.”
33. I agree with the above summary which also was quoted with approval by Kearns J. in Hayes v. Minister for Finance [2007] 3 IR 190 at p. 206.
34. It is undoubtedly the case that the action of Mr. C was a criminal assault upon the plaintiff either deliberate or presumably in this case reckless. Had the plaintiff been injured by an assault from the O’M sisters or from Mr. O’C that would also have been a criminal and a reckless act. Had the plaintiff been assaulted by Ms. H whom he knocked down, that would also have been a criminal act. In order to establish whether the acts of Mr. C are, in effect, divided from the defendants’ actions by a “unbridgeable chasm” which any actions of the O’M sisters, Mr. O’C or, indeed, Ms. H might not be, one has to look at the sequence of events.
35. In an image taken from camera 7 at 02:25:35, the plaintiff is to be seen with Mr. O’C behind him stooping and being pushed downwards with Ms. H invisible in front of him. Shielding Ms. H from view is the rear of Mr. C. In an image timed at the next second 02:25:36, the plaintiff’s head has all but disappeared downwards, Mr. O’C is to be seen behind him and Mr. C is seen standing apparently unmoving. In the next image timed at the same second (02:25:36), Mr. C’s right hand fist is seen swinging backwards in preparation for the blow. As I concluded at the application for direction, there is no unbridgeable chasm between the actions of Mr. C and what preceded it. It was an instant reckless response to seeing his girlfriend, Ms. H being knocked to the ground by the plaintiff that caused the blow. I hold that though criminal, Mr. C’s action was reasonably foreseeable to anyone asking whether the boyfriend of an innocent person knocked to the ground would violently react against who he perceived to be her assailant. It is the action of an incident. Though the precise nature of the vicious assault was not foreseeable, I hold that under subpara. (2) of the summary of the law as contained in McMahon and Binchy (above) that a response to the plaintiff being pushed over and knocking down Ms. H was “very likely”. I also hold that the act or damage caused by Mr. C is, indeed as per Clause 4 (above) “the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not”.
36. Mr. C is not an agent of the defendant. The defendants are not vicariously liable for his actions but they are liable in Tort because in failing to readmit the plaintiff in the circumstances and in pushing him back towards the danger, they knew or ought to have known as a matter of virtual certainty that the plaintiff would suffer some assault and some harm. He had already been assaulted both inside their premises and outside by his pursuers. The act of Mr. C flows directly from the actions of the defendant. The defendants conceded that assuming they did have a duty of care to the plaintiff that they might be liable for any actions of Mr. O’C, the O’M sisters or possibly Ms. H, then it is entirely unrealistic and artificial to suggest that they are not liable for the actions of Mr. C.
37. In Conole v. Red Bank Oyster Company & Anor [1976] I.R. 191, the first named defendant’s motor vessel capsized and a number of its passengers drowned. The vessel had been built by the third party and was unseaworthy when delivered to the defendants, a fact of which they were aware and it was held that “direct and proximate cause of this accident was the decision of the defendants…to put to sea with passengers when they had a clear warning that the boat was unfit for the task. The defendants were the sole initiators of the cause of negligence…”. In that case and in other cases, there is a considerable time lapse between any negligence of the alleged novus actus and of the defendants in this case there is but a gap of two seconds. However, time is not the only factor to be considered though it is, in this case, very important.
38. In Millington v. Traynor (17th July, 2002) (Circuit Court Judge McMahon), the plaintiff who was an employee of the defendant challenged a thief who had entered the back of the house where she worked and stolen her handbag and the keys of her car, the thief jumped into the car, reversed it to make his getaway and in an effort to prevent his escape, the plaintiff threw herself on the bonnet and was injured. The employers were aware that the backdoor entrance from the car park to the public house represented a security risk and the method the employer devised to prevent unauthorised entry was inadequate. The anticipated risk of a thief entering the premises was a risk that actually materialised and, accordingly, a novus actus did not apply.
39. In this case, there is a far closer connection between the defendants’ actions and that of Mr. C than between the defendants in Millington and the thief. The acts of burglary, car theft and reckless driving in Millington were all criminal. Though the consequences may not have been as severe as in this case, the acts were far more premeditated than any act of Mr. C. However, in Millington, as well as in this case, the key principle is as Fennelly J. stated in Breslin v. Corcoran [2003] 2 IR 203 that “the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not”. This case is far removed from the defendants’ breach of duty merely resulting in the third party having an “opportunity to intervene” as stated in the passage from Charlesworth cited at para. 27 above. This case is also entirely different from Conole (above at para. 36). In this case, there is a seamless rapid, almost instantaneous connection between the acts and inactions of the defendants which I have held to constitute a breach of duty and, what occurred to the plaintiff at the hands of Mr. C.
40. In order for liability to exist, the precise nature of the harm to the plaintiff does not have to be anticipated with particularity. What must, however, be clear is that when the plaintiff was denied re-entry to the premises and pushed back into the crowd, injury to him was “the very kind of thing” which the defendants were bound to expect and to guard against. In the circumstances, the defendants knew or ought to have known that the plaintiff was being exposed to, not alone a risk but the essential likelihood of, an assault which is precisely the type of harm that he actually suffered and that the defendant had a duty to prevent. There is nothing in the evidence adduced by the defendants that in the circumstances would lead me to change the finding on novus actus interveniens, I delivered ex tempore when the application for direction was made. In fact, the evidence, of the defendants especially that of Mr. P, if anything, strengthens the plaintiff’s case.
41. The defendants’ plea of novus actus interveniens must fail in this case.
Section 35(1)(i) of the Civil Liability Act 1961
42. The defendants contend that as the plaintiff has not joined Mr. C as a co-defendant that they are entitled to, in effect, a full defence and that, pursuant to the provisions of s. 35(1)(i) of the Civil Liability Act 1961, the plaintiff should be identified with the acts of Mr. C, not a party to these proceedings.
43. In his preface to the fourth edition of the Civil Liabilities Acts, Mr. Anthony Kerr quotes a judicial source as describing the Civil Liability Act 1961 as “a catalogue of metaphysical conundra”. With reference to the entirety of the 1961 Act, such a criticism is, I suggest, unfair. The Act itself is a wondrous creation drafted by a renowned Legal Academic, piloted through by a reforming Minister and subject to detailed opposition scrutiny by a number of the leading members of the Round Hall at the time. However, were those remarks to be confined to s. 35 of the Act, it would be hard to argue the contrary.
44. As O’Donnell J. stated in Hickey v. McGowan [2017] 2 I.R. 196:-
“One of the main provisions of the 1961 Act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff…”
45. Under s. 11(1) of the 1961 Act “two or more persons or concurrent wrongdoers where both or all are wrongdoers and are responsible to a third person (in this part called the injured person of a plaintiff) for the same damage…”.
46. Clearly, based upon my findings so far, the defendants and Mr. C are concurrent wrongdoers.
47. Section 35(1) states:-
“(1) For the purpose of determining contributory negligence—
…
(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;.”
48. In this case, proceedings have been initiated against the named defendants only. A separate Plenary Summons dated 19th October, 2017, has been issued by the plaintiff against the O’M sisters and Mr. O’C bearing number [2017 No. 9361 P.] and a separate Plenary Summons dated 19th September, 2017, has been issued against Mr. C bearing record number [2017 No. 8373 P.]. Each of these writs claim damages for assault and trespass to the person. The plaintiff in his reply to the defence offers to assign to the defendants the benefit of these Plenary Summonses.
49. The plaintiff submits that as the other concurrent wrongdoers, and in particular Mr. C, have not been joined in these proceedings given that the time limit for a personal injury action has passed that the plaintiff must be identified with all the negligence or fault of Mr. C and they contend Mr. C should be responsible for the entirety of the injury and, accordingly the plaintiff should be identified with all the fault of Mr. C and not be entitled to succeed.
50. The defendants submit that they had no obligation to join Mr. C as a third party especially on the basis that the plaintiff well knew of the existence of Mr. C and his involvement and submit that the proceedings for assault and trespass to the person do not defeat the provisions of s. 35 as they are not made in the same proceedings. The defendants also seek to distinguish between an action in assault against Mr. C and an action in negligence for personal injuries and submit that the actions for assault against Mr. C do not relate to the same damage at law.
51. The provisions of s. 35(1)(i) of the Civil Liability Act were always known to be a legal nuclear deterrent, the consequences of which were uncertain and left unspoken. It is to the credit of the good sense of the Round Hall over the years that s. 35(1)(i) has been kept in the arsenal as a deterrent for over 50 years and was not allowed to slip into the untrustworthy sphere of a judicial determination.
52. Indeed, the most recent edition of McMahon and Binchy 2013, there is no case cited referencing section 35(1)(i). However, the “good sense” of the Round Hall must have diminished in recent years as s. 35(1)(i) has been subject to judicial comment.
53. Some recent Supreme Court cases have referred to the subsection. O’Malley J. in Roche v. Wymes [2017] IESC 57 at para. 50 referred to the subsection stating:-
“…that if damage to a plaintiff is caused by concurrent wrongdoers, and the claim against one of them becomes statute-barred, the plaintiff shall be deemed responsible for the acts of that wrongdoer.”
54. A strict reading of s. 35(1) might utilise the fact that subsection is stated to be “for the purposes of determining contributory negligence” and seek to debate issues of injuria and damnum. However, the judgment of O’Donnell J. in Hickey v. McGowan (above), puts an end to any such “metaphysical conundra”. As O’Donnell J. stated:-
“It seems to me that this section can be understood more readily and more naturally as merely a deeming provision which deems the liability of the statute barred defendant a form of contributory negligence which can then be pleaded against the plaintiff in reduction of the plaintiff’s award. The purpose of a deeming provision is to give a meaning to something for a particular purpose which it would not otherwise have more generally. Breach of contract or an intentional tort is not normally contributory negligence if committed by the plaintiff, but when committed by a concurrent wrongdoer not sued and now protected by the Statute of Limitations, it is deemed to be so for the limited purposes of the identification provisions of the Civil Liability Act.”
55. O’Donnell J. in Hickey (above) did go on to indicate that there may be certain cases in which the strict effects of s. 35(1) might operate entirely too harshly and expressly held open the prospect of the section being further examined in detail. However, for the reasons outlined below, I have come to the conclusion that I need not depart from the ordinary meaning of the Act as summarised by O’Malley J. in Roche (above) and by O’Donnell J. in Hickey (above), i.e. if damage to a plaintiff is caused by a concurrent wrongdoer and the claim against one of them becomes statute barred, the plaintiff shall be deemed responsible for the acts of that wrongdoer.
56. I do not accept the submission by the plaintiff that as the Statute of Limitations must be pleaded and a party might decide not to rely upon the statute and indeed exclusions might arise even if reliance was made and that accordingly, the mere efflux of time is not sufficient as a judicial determination must be made that the action is statute before s. 35(1)(i) could be successfully invoked. It is clear that the subsection is only relevant where the concurrent wrongdoer has not been sued and therefore is not in a position to plead the limitation provisions. Accordingly, where s. 35(1)(i) is pleaded, a court must make a determination as if the un-joined concurrent wrongdoer was now joined and pleaded the Statute of Limitations. Clearly, the two year limitation period for a personal injury summons has expired. The plaintiff also clearly could not rely upon any date of knowledge provisions, and accordingly if the personal injury summons was the only pleading to be considered, s. 35(1)(i) would apply. The limitation period, however, for an action for trespass to the person or assault had not expired when the separate writs were issued.
57. Had the plaintiff sued Mr. C in these proceedings that would have included the case made against him for damages for assault and trespass for the person. An assault may, of course, be a negligent or intentional or reckless but given the plea in the criminal courts of guilty, a plaintiff would not rely upon mere negligence against Mr. C. I do not accept the submissions of the defendant that because Mr. C has been sued in assault rather than in negligence that he is not being regarded as a concurrent wrongdoer by the plaintiff or that the plea of the plaintiff’s action in assault somehow is insufficient for the plaintiff as an answer to a plea of section 35(1)(i). It is true that the assault actions do not necessarily require proof of personal injuries but in an assault action brought arising out of this incident against Mr. C, it flies against reason to suggest that personal injuries would not be proved. The plaintiff does not, in my view, have to frame his case against Mr. C as a negligent personal injury action in order to prevent s. 35 operating. As O’Donnell J. made clear in Hickey, the liability of the concurrent wrongdoer might arise in acts other than those which constitute negligence or want of care:-
“…it would make little sense to read the identification provisions of s.35 as only having a practical effect in relation to those acts of a concurrent wrongdoer which constitute negligence or want of care.”
58. Whereas clearly, the plaintiff has decided in these proceedings to “throw all the loss upon one defendant” and clearly he has done so for precisely the same reason as the defendants have chosen not to issue third party proceedings against Mr. C, such considerations are not relevant to my determination.
59. The plaintiff’s case is not statute barred against Mr. C. The plaintiff has a live unbarred action for trespass to the person against Mr. C and the plaintiff has offered the benefit of any such action against Mr. C to the defendants in this case.
60. Had the plaintiff joined Mr. C as a co-defendant, absent any contributory negligence on the part of the plaintiff, the plaintiff would be entitled to a decree jointly and severally against the existing defendants and Mr. C. In such circumstances, the plaintiff would undoubtedly enforce his judgment against these defendants. These defendants would presumably also after judgment seek to have an order of indemnity or contribution against Mr. C and it is likely that the large preponderance of the contribution would be ordered against Mr. C if these defendants were not given a complete indemnity. Given my finding that the defendants do not have a defence on the basis s. 35(1)(i), I do not have to determine the amount of the contribution or indemnity that would have been ordered against Mr. C or, therefore, the extent of any reduction in the plaintiff’s damages had the s. 35(1)(i) defence succeeded.
61. Section 35(1)(i) ought not to be given any extra effect than the ordinary meaning of language and clearly as the plaintiff’s claim against Mr. C for his injuries caused by the assault has not been barred, then the utilisation by the defendants of s. 35(1)(i) does not offer a defence.
62. Accordingly, the plaintiff is entitled to recover in full against these defendants, no submissions were offered that there should be any differentiation between the liability of the two defendants.
Quantum
63. There can be no doubt that the injuries sustained by the plaintiff were of the most serious kind. There is very little difference between the medical experts in this regard.
64. The plaintiff in this case is, as stated, a most pleasant young man born on 13th July, 1985 who is a psychiatric nurse into which profession he followed his father. He was employed by the HSE in North Lee Mental Health Services from 2008 up to the accident and was, at the time, with his fiancÉ, now his wife, studying a Higher Diploma in Acute and Enduring Mental Illness which was a necessary precursor for promotion to the grade of Clinical Nurse Manager 2 which he desired. The plaintiff married his fiancÉ in 2014 after the accident, and she is shortly expecting their first child.
65. The plaintiff was taken by ambulance to the nearby Mercy Hospital, Cork and at 5:30pm on the same day he was transferred to the Cork University Hospital. He was, in effect, unconscious and was intubated. His head injury was significant. He had a fracture in two places of the skull, bilateral multifocal intraparenchymal haemorrhage and haemorrhagic contusion of the left frontal lobe and both temporal lobes, both cerebral hemispheres and there was a volume of subarachnoid haemorrhage and a small volume of a left dural haematoma in the same place. He had a transverse fracture of his right temporal bone with blood filling the middle ear cavity. There was a no displaced right parietal fracture and his sinuses also contained blood. He was transferred to the Cork University Hospital in the afternoon of 31st and admitted under intensive care and was unconscious for many weeks and he was detained in hospital to assist his recovery until the end of November. The plaintiff commenced rehabilitation under Dr. Hanranhan and a multidisciplinary approach was adopted. The plaintiff was identified with having a brain injury affecting his cognition, an injury to his inner ear which affected his hearing and this is still affected and the brain injury was affecting his voice. He had problems with dysphasia and with reflux when he drank liquids. He underwent rehabilitation with speech and language, occupational physiotherapy under the supervision of Dr. Hanrahan.
66. An attempt was made to get the plaintiff back to work at the end of 2012. He was viewed by the occupational health doctor for the HSE who was persuaded that it would be in the plaintiff’s best interest if he got back to some work. This he did under a most sympathetic employer. He returned to work initially under supervision and on a part time basis and gradually the part time became fuller, though the plaintiff did not return to the same work with the same responsibilities as he previously had. He previously worked on his own initiative but now he worked in groups and did not administer drugs. This is still the position.
67. After he was released from hospital, the plaintiff went to the care of his supportive parents in Middleton even though he had been previously living in an apartment in Cork.
68. The defendants’ consultant neurosurgeon, Mr. George F. Kaar agrees that the plaintiff suffered a serious and significant brain injury. Of that, there can be no doubt.
69. The plaintiff’s senior clinical neuropsychologist, Mr. Mark Mulrooney, states:-
“In reviewing this man’s current profile there appears to be reasonable evidence of premorbid functioning at the upper end of average approaching the 75th percentile relative to his own age cohort. There is a marked and significant impairment which the examiner would identify as being moderate to severe in regard to reduction in overall cognition having regard to current intellectual functioning. There is even more marked impairment approaching real significance at two standard deviations in reviewing verbal memory and visual memory. These are most likely attention loaded deficits and at three years post accident are likely to continue. There is evidence of dedradion of executive functioning which was more apparent in language and behavioural manifestations including preservation of thought, rigid fixation behaviour and some deterioration in mood perception…”
70. The plaintiff manages in relation to his memory impairment by keeping a system of notes to remind him to do various tasks and this works in a practical level.
71. Though the plaintiff has made great strides and has been congratulated by all the experts for this, as was stated in evidence, his brain cells will not regrow and he is going to be left with a permanent deficit. The real source of his improvement has been the plaintiff’s ability to cope with his disability due to the therapies learnt at Headway and from his other medical and therapeutic assistance.
72. Happily, the plaintiff married in 2014 and though he indicates that his mood is not what it used to be and that he can be difficult at home, he is extremely grateful that his fiancÉ continued to support him and has married him and he is looking forward to the joys and burdens of fatherhood.
73. Notwithstanding the fact that he manages to work, and that he does so without complaint, I do not believe that he will regress back to his previous level of independence.
74. Before the accident, the plaintiff was studying with his fiancÉ for a higher qualification which, he hoped, allow for a promotion. Certainly promotion would not be reasonably possible without such extra qualifications. He was unable to continue with his advance qualifications are the accident due to memory problems and I do not believe as a matter of probability that he will be able to return to such fairly intense academic work.
75. Given his initial ambition to go on the course, the level of his commitment to his job, his enthusiasm to utilise all the coping strategies learnt in order to be able to maintain his present job and also the level of his family connections with the psychiatric services, I believe that had it not been for the indexed event, the plaintiff, having qualified with his advanced diploma, would have gone on for promotion for Clinical Nurse Manager 2 and advance his career.
Damages
76. Damages must be assessed on the basis of (a) special damages to date, (b) loss of earnings to date, (c) loss of earnings into the future, and (d) general damages.
(a) Special damages to date
77. Past special damages have been agreed in the sum of €75,243.39 being made up of €40,000 for retrospective care provided for by his family and €17,100 in respect of loss of earnings to date.
(b) Future loss of earnings
78. I have been furnished with the actuaries’ reports from the plaintiff’s and the defendants’ actuary. I believe that the plaintiff would have achieved promotion to Clinical Nurse Manager 2. The age of 35 given by the actuary for his promotion is reasonable and, therefore, the actuarial total of the plaintiff’s future loss of earnings amounts to €235,808 to which sum should be added the sum of €97,696 for future pension and loss of future lump sum of €23,911, totalling together the sum of €357,415. I believe that this is a more realistic basis for assessing the plaintiff’s loss than that compiled by the defendants’ actuary, Mr. Byrne which concentrated on loss of premium payments but not factoring in the fact that the plaintiff will be promoted. Actuarial figures are, of course, to be seen as guides rather than rules and the figures do not allow for Ready v. Bates or other deductions. Given the fact that the plaintiff would be working in the secure employment of the HSE, any true Ready v. Bates reductions would be likely to be small. The figures from the plaintiff’s actuary assumed that the promotion would have taken place at 35 years of age which is not unreasonable and in the circumstances, I will assess the total of their future loss of earnings in the sum of €325,000.
(c) General damages
79. I have previously expressed my concerns in relation to the second Book of Quantum and the method of its compliance. However, in this case the book is of no real significance as they do not refer to brain as opposed to generalised head injuries.
80. The brain injury is the plaintiff’s main disability. From my findings above, the plaintiff though he has made a reasonable recovery is left with a permanent ongoing sequelae of a very serious nature.
81. The plaintiff is not in a position of someone with a catastrophic injury all of whose needs including transportation and holidays and accommodation are allocated for in special damages and accordingly, the “cap” on general damages is not relevant other than in general terms.
82. Each plaintiff must be examined as an individual to ascertain the sum of money reasonable to himself and the defendants to compensate him for the injury he has suffered. One does not commence such evaluations by comparisons and comparisons treated in that manner would almost always results in a downward spiral. One must look at the plaintiff’s case in the round. It is true that the injuries sustained might not be described as “catastrophic”, however, the plaintiff is clearly fully conscious of all he has suffered and all that he has lost and will continue to lose. The plaintiff has had a most significant and serious injury with permanent serious effects into the future. His enjoyment of life and career have all been adversely affected.
83. Being fair to both parties, I will assess general damages as follows:-
Pain and suffering to date €200,000
Pain and suffering into the future €150,000
Summary
Special damages to date €75,243.39
Future loss of earnings €325,000
General damages to date €200,000
General damages into the future €150,000
Total €750,243.39
84. Observing the total sum, I believe the same is fair and reasonable in all the circumstances and award same.
Boland -v- Dublin City Council & Ors
[2011] IEHC 176
Judgment of Mr Justice Michael Peart delivered on the 5th day of April 2011:
The plaintiff is now aged 20, but when he was aged 17 years he sustained a serious injury to his right arm on the 14th May 2008 when he fell on Lower Sheriff Street, Dublin at a location where certain road works were being undertaken by the defendants. The plaintiff says that he fell while walking through an area where there were some heavy plastic barriers lying on the ground. These are a type of heavy barrier frequently erected in order to cordon off the area in which works are being carried out, so that members of the public are prevented from entering upon the area. They are designed so that they can be attached together in order to form a fence around the area. The plaintiff has stated that the barrier he caught his foot in as he walked through the area was not attached to any other but was one of a few such barriers which were simply lying on the ground and which he had to negotiate his way through, there being no way round them.
The circumstances in which this injury occurred are hotly disputed by the defendants. The defendants have pleaded that the plaintiff was the author of his own misfortune, and, contrary to how he has pleaded that this injury occurred, that he had on the occasion in question attempted to jump over a barrier which was erected and attached to another barrier at the time, and that in so attempting to jump over the barrier he caught his foot on the barrier, causing him to fall heavily, thereby causing this injury.
The defendants called a witness who, unknown to the plaintiff, actually saw this incident occur. He was seated in a JCB which he was operating at the site that day. In response the plaintiff has stated that the incident witnessed by this witness must be a different one which must have occurred earlier on the same day. The plaintiff states that his injury was sustained at about 3.30pm, whereas the witness has stated that what he saw happen occurred during lunch hour and he puts sometime between 1pm and 2pm but probably about 1.30pm. He cannot be certain of the precise time, except that it was during the break for lunch.
Given the complete conflict in the evidence, I will set it out in some detail.
The plaintiff’s evidence:
The plaintiff has stated that a few days before this incident his brother had given him a job as a window fitter at a wage of €500 per week, expected to last for at least one year. This accounts for the fact that on this date he was walking down Lower Sheriff Street at about 3.30pm on his way home from work, having first been dropped in O’Connell Street and from where he walked via Talbot Street in the company of a friend of his, Gerard Meehan, who was also so employed.
He says that having walked down Talbot Street he crossed over from the North Star Hotel to the small traffic island in Amiens Street at the entrance to Lower Sheriff Street and then walked down diagonally from the island to the pavement running down Lower Sheriff Street and to the left of an area where works were being carried out by the defendants. He says that this was the way indicated for pedestrians to walk. He says that having walked under a bridge and exited from beneath it, he came to some of these plastic barriers which were lying on the pavement, and that in order to get by them he had no choice but to walk over them, and that in doing so he caught his foot, causing him to fall heavily.
He states that this occurred at about 3.30pm, and he says that it must have been that time since he had knocked off work at about 2.45 pm, and was driven back to O’Connell Street by a Gerard Cashin, arriving there at about 3.15pm.
He said that as he passed under the bridge there was a JCB parked to his left and which he went by. He then got to his feet, but his arm was badly injured, and he described his elbow as being “like jelly”. He also said that he looked about the location to see if there was anybody who could help him, but saw nobody either at the works site itself or in a security box there. He and his friend who was with him, Gerard Meehan, walked on to his home, and he states that his friend rang his girlfriend who had a car and Gerard Meehan drove him to the Mater Hospital. Hospital records show that he arrived at Accident and Emergency at 16.10hrs that same day.
There is no doubt that he sustained a serious fracture to his elbow. He required surgery so that a metal plate could be inserted, and a cast applied. His recovery was not uneventful as his arm became infected at Christmas 2008, and further hospitalisation was required. There are further sequelae pleaded, namely that this incident has caused him to suffer from depression and that it exacerbated an addiction to alcohol and to drugs, and that his arm is under-strength now to the extent that he can no longer do work that requires heavy lifting and he can no longer work as a window fitter.
Prior to the days prior to this injury he had been drawing unemployment benefit, and at the present time he receives disability benefit on the grounds of depression. There is no prospect of him gaining employment in the short-term at least.
He completely denies that he was the person who the defendant’s witness, Thomas Carroll, had observed during lunch-hour attempting to jump over one of these barriers, and falling heavily to the ground and holding his right arm in the immediate aftermath thereof. He says that he could not have attempted to jump this barrier given the sort of boots he was wearing for his work that day. He also denied that he was wrong in his description of the route he took down Lower Sheriff Street and the point at which he crossed over to the other side of the road before attempting to jump this barrier.
The plaintiff’s friend, Gerard Meehan gave evidence also. He is a neighbour and friend of the plaintiff, and says that he was working with the plaintiff on this day and came back into O’Connell Street with him after work ended. He confirmed that they knocked off work at 2.30-2.45pm and got a lift back to O’Connell Street with Derek Cashin, and that they crossed over to Lower Sheriff Street and proceeded to walk down the pavement on the left hand side of the road to the left of the area where works were being carried out.
He says also that they walked under the arch shown in the photographs and that he saw a number of barriers lying on the ground ahead of them. He managed to get through them by stepping over them, but that having done so he suddenly heard a scream behind him and saw that the plaintiff had fallen to the ground. He denied that this area had been blocked off by barriers and stated that the pavement down which they walked was open and had not been closed off by barriers.
He denied that the plaintiff had tried to jump over the barriers because they were on the ground and not erected, though when cross-examined he confirmed that he had not actually seen the plaintiff fall as he was ahead of him. He helped the plaintiff to his feet, and stated that they had looked around to see if there was anybody at the site but found nobody, and stated that there was nobody in the security hut at the location. He stated that they walked home as they could not go to the hospital “looking like this”. I presume that he referred to the fact they must have been in working clothes.
When they got home, he says that he rang his girlfriend who has a car, and drove the plaintiff to hospital. He thinks that they arrived at the hospital about 45 minutes after this incident. It will be recalled that the hospital notes indicate that the plaintiff was seen at 16.10hrs. Mr Meehan denied that this incident occurred at lunch hour. He denied also that the pavement area where they had walked was in fact fenced off, as the defendants state. He also denied that they had in fact opened some barriers in order to cross an excavated area before the plaintiff ran and jumped over another erected barrier.
Darren Boland, an older brother of the plaintiff also gave evidence. Relevant for the moment is that he stated that he has a window fitting business, and that a few days before the date of this incident he had given the plaintiff a job as a window fitter because he had a few contracts at that time and needed help as he was very busy in 2008, and that the plaintiff had been ‘on the dole’ prior to that. He said that the plaintiff’s gross pay for that employment was €513 per week. He was also able to confirm that before the plaintiff, Gerard Meehan and Derek Cashin knocked off work they had phoned him for permission to leave the work site as their work was done. He stated that he had said that they could leave work at 2.30pm, and no earlier. This ties in with the time that the plaintiff states that he was dropped off at O’Connell Street and would, if true, confirm that either Mr Carroll is wrong about the time he observed a man injuring himself as he jumped one of the barriers, or that there were two almost identical incidents on that same day, and that Mr Carroll did not in fact observe the incident in which the plaintiff injured himself – the other one being one which was not noticed or reported by anybody.
Darren Boland said that he had no written confirmation that he had employed the plaintiff a few days prior to this incident. When asked if he had actually paid the plaintiff for the few days work which he did before this accident he stated “I suppose I did”. But there is no evidence in that regard, though he said that he kept records and says that he kept tax returns and so forth. But none were produced to the Court. He said that his accountant would have these records.
Evidence of Tom Carroll:
Mr Carroll was employed on this date by Breffni Plant Hire, a company contracted by the third named defendant in relation to ground-works at this location on this date. He recalled the 14th May 2008, and that between 1pm and 1.30pm as far as he could recall, but at all events between 1pm and 2pm during the lunch break while he was seated in the cab of the JCB he was operating on that date, he was facing towards the archway through which the plaintiff passed on foot. He saw two men approaching from his right and crossing the road towards where he was situated. He saw them pull aside a barrier which was standing in position and passing through an area which had been excavated, and he saw one of these men start to run towards another barrier and attempt to jump over it, and falling to the ground. The barrier was also knocked over by the man who jumped it. He says that when this man got up, he looked back in his direction, and was talking to his companion. They moved on and looked back again and proceeded on down Lower Sheriff Street beyond the arch before turning to their left. He did not see them again.
He said that he saw the whole incident happen, and confirmed that the barrier over which the man jumped was erected at the time and not lying on the ground as described by the plaintiff and Mr Meehan. He states that the pavement area leading down Lower Sheriff Street to the archway was blocked off by barriers on this date. He also stated that after the man fell his companion went to him and helped him to his feet. The injured man was holding his right arm as they were talking and as they walked on and turned left. He said also that as the plaintiff walked away after his fall he presumed that he was okay, but that if he had remained on the ground he would of course have gone over to him in order to help him. He did not see them come back up Lower Sheriff Street in search of any person who might have been working there. He stated also that after lunch hour ended and when others returned to the site he reported what had happened and remained at work for the rest of that day, and did not observe any further incident of this kind during the rest of the day. He thinks that those others returned to the work site 15-30 minutes after this incident occurred and when lunch hour was over.
Gareth Byrne also gave evidence for the defendants. He was the foreman and in charge of ensuring that the site was safe while the works were being undertaken. This involved ensuring that fencing was put in place in order to prevent danger to the public, and placing appropriate signage in place in order to direct pedestrians where to walk while the works were in progress. He confirmed that the footpath along which the plaintiff says he and his companion walked was blocked off by plastic barriers, and that bridge/archway was similarly cordoned off with barriers. He is absolutely certain that these barriers were in place during the morning and at the time that he left the site for a short period at about 2.45pm – 3pm in order to get some materials from a depot nearby. He was absent for about 20 minutes and was not present at the time when Mr Carroll says he saw the plaintiff fall, but that as soon as he returned Mr Carroll reported the incident to him. He inspected the area where Mr Carroll said that the fall had occurred and he found a barrier lying on the ground, and he re-erected it.
Conclusions on liability:
There is no doubt that the plaintiff suffered a serious injury to his right arm when he fell on Lower Sheriff Street on the 14th May 2008. However, the onus rests upon the plaintiff to satisfy the Court that as a matter of probability he fell and injured himself in the manner in which he has stated by falling over a barrier or barriers lying on the ground. A difficulty which he now faces is that if Mr Carroll is a reliable witness and if the incident which he observed during his lunch-hour was that in which the plaintiff fell and injured himself, the plaintiff’s account of this incident is false and deliberately so, and his claim must be dismissed.
The first thing to be said is that I am completely satisfied that Tom Carroll is a truthful and reliable witness. There is no room for any other conclusion as to his credibility. There is no doubt that he saw two men during lunch time on the 14th May 2008 one of whom attempted to jump over a barrier which was erect at the time, and who fell in the process, falling to the ground and injuring his right arm before walking off holding his right arm. It is also clear from both Mr Carroll’s evidence and that of Gareth Byrne that no other similar incident was reported or observed on that afternoon or even at any later stage.
The nature of the injury which the plaintiff sustained to his arm is relevant also. The injury was described by his Counsel as one of the most serious injuries which can be sustained to the arm, and I note that a report from Mr Peter O’Connor, Consultant in Emergency Medicine that he states:
“This patient has suffered a nasty fracture of his elbow. This type of fracture is the worst that can be suffered around the elbow joint as the internal elbow joint mechanism itself is always disrupted by the process”.
That report notes also that “this patient was first seen at 16.10hrs on the 14 May 2008. A short time previously he had suffered an injury when he fell over a barrier and landed heavily on his right elbow”.
It is described in the medical report of Darragh Hynes, Consultant Orthopaedic Surgeon as an “olecranon fracture”. This is a fracture of the articular surface of the elbow joint – in other words the bony point of the outer aspect of the elbow which is easily observed when the arm is flexed. It required surgery and the insertion of k-wires in order to close the fracture. It is an injury which requires significant direct force to the surface of the elbow, such as in a heavy fall onto the point of the elbow. It is certainly an injury which would be consistent with a fall onto the elbow from a height. It is therefore one which would be consistent with the plaintiff attempting to jump this barrier and falling in the process, as opposed to simply tripping over a barrier while it lay on the ground. The latter type of trip or even fall over the barrier while it lay on the ground would inevitably involve a lesser impact to the elbow than a fall from a height.
It is therefore an injury which would be consistent with a fall such as was observed by Tom Carroll on this date.
Another matter which reinforces the conclusion that Tom Carroll saw this plaintiff fall on this date is that the plaintiff has stated that in the immediate aftermath of his fall he looked around the site for somebody to assist him, but that there was nobody at the site. This is consistent with the fact that the plaintiff’s fall in fact occurred during lunch hour, as the men on the site would not be working at that time. If it happened at around 3.30pm, lunch hour was well over at that time, and men would have been at work.
Another matter which militates strongly against the plaintiff’s overall credibility is the claim which he has made as part of these proceedings for future loss of earnings. He has claimed that while he had had little or no employment prior to the date of this incident, he had been engaged by his brother for a window fitting job just three days before the 14th May 2008 and that this incident has deprived him of one year’s earnings at the rate of €500 per week. There is no record of his having been so employed. While his brother has said that he has records for his business no such records were produced to corroborate this. The best that the plaintiff can say is that up to this incident he had been drawing unemployment benefit, and that not having ‘signed on’ during the week of this incident that benefit ceased and he was employed by his brother. There is no evidence that his brother paid him for the three days up to this incident other than his brother’s evidence in that regard that he would have paid the plaintiff for those days. Since the incident the plaintiff has been in receipt of disability benefit but this is not because of this injury but rather because of depression. The plaintiff has lifestyle issues also, which militate against his credibility as far as ongoing employment for a year is concerned. There is no doubt, and the plaintiff has admitted this, that he was a heavy drinker and in addition was a regular smoker of ‘hash’. The hospital records which have been discovered in this action are also relevant in this regard. The notes for 15th May 2008 show that the plaintiff stated that he smokes hash every day and consumes alcohol ++. It appears from the hospital notes also that the surgery intended to be performed on the 15th May 2008 was postponed because the plaintiff had not complied with fasting obligations. Those notes show also that at 6.15am on the 16th May 2008 the plaintiff was verbally abusive to nursing staff and was complaining of delay in his surgery being carried out. Having had his surgery carried out later on the 16th May 2008 he was returned to his ward, and the notes show that soon thereafter the plaintiff asked if he could leave the ward “for fresh air” but was told that he could not do so since “he was not long post op”. However the plaintiff nevertheless left the ward. It appears that the plaintiff attended again at the Mater Hospital for a procedure to remove the k-wires from his arm on 15th December 2008, but the notes show that this had to be postponed because on arrival at the hospital he had a strong smell of alcohol and he stated that he had had “6-7 cans” the previous night and had also smoked cannabis. A new date was given for the 19th January 2009 as he was considered unfit for surgery. However it appears that these wires were in fact removed on the 5th January 2009, having had to attend again on the 25th December 2008 because his arm was causing him a lot of difficulty. It appears that his arm had become infected. The nursing notes for this time show that the plaintiff reported not only that he smokes ‘hash’ but also “cocaine at weekends”. A note for the 29th December 2008 records that a security guard had informed him or her that he found patient Kevin Boland smoking hash in a toilet at St. Agnes Ward. The plaintiff was spoken to about this but he stated that he did not smoke hash and smoked cigarettes and that he had smoked at the window of the toilet.
These matters do not affect in any way the credibility of the plaintiff in relation to whether or not the incident on the 14th May 2008 occurred in the way he has described. But they do affect his overall credibility in relation to the claim that he would have had one year’s uninterrupted employment with his brother as a window fitter, thereby giving rise to his claim for €25,000 loss of earnings, even if I accept that he was taken on by his brother three days before the date of this incident. I am satisfied that even if he had been so engaged by his brother, it is more probable than not that he would not have worked consistently during the following twelve months. His lifestyle was clearly such that as a matter of probability he could not be regarded as a person who could have continued in that employment for such a period of time.
As it happens, I believe that this claim for loss of earnings is a fabricated claim, particularly as it is completely unsupported by any evidence other than his own evidence and that of his brother.
The fact that he has so fabricated this aspect of his claim must infect also his overall credibility in relation to his truthfulness as to how this injury was sustained.
As a matter of probability I am satisfied that the incident so clearly observed by Tom Carroll on the 14th May 2008 was that in which the plaintiff sustained his injury. I have no basis for doubting the credibility of Mr Carroll. He struck me as a completely honest and impartial observer with no reason to give a false or misleading account of what he saw. I am satisfied that he saw the plaintiff fall.
It follows that I am satisfied that not only has the plaintiff fabricated a claim for loss of earnings, but also that he has given a false account of the incident. I am satisfied that he attempted to jump the erected barrier and fell in so doing, thereby sustaining this serious injury to his arm. It would be a monstrous injustice to the defendants to find in the plaintiff’s favour and I dismiss his claim.
Ward -v- Sheridan & Anor
[2010] IEHC 308 (28 July 2010)
Judgment of Mr. Justice Lavan delivered the 28th day of July, 2010
Issue
This is an application by Mr. Patrick Ward to recover damages arising as a result of a vasectomy which he underwent following on from a road traffic accident in which his wife was injured in 1996. The Plaintiff is also claiming damages as a result of the loss of a baby which arose from the termination of his wife’s pregnancy in the aftermath of the accident, which the Plaintiff argues was necessary for his wife’s physical and mental health. The Plaintiff claims damages for pain suffered as a result of the vasectomy as well as for mental distress, depression, grief and anguish as a result of the vasectomy and the termination of his wife’s pregnancy.
The substantive action for damages for personal injury, loss, damage, inconvenience and expense sustained by the Plaintiff’s wife was settled in 2007. The Plaintiff’s mother’s claim for damages for nervous shock was also settled. No claim for damages was made by the Plaintiff arising from the road traffic accident in 1996 until the present action.
Essentially, what is at issue and what needs to be determined by this Court is whether the Plaintiff is entitled to recover damages as a result of his decision to undergo a vasectomy which he claims was necessitated following on from his wife’s road traffic accident in 1996, or whether damages are unrecoverable on the basis that the Plaintiff elected to undergo such a procedure and any pain or suffering which he experiences as a result of it are not related to the said accident. In the event that the Court is satisfied that the Plaintiff is entitled to recover damages, the Court must also consider whether the Plaintiff is suffering from pain, in the form of the condition of post operative orchalgia since his vasectomy. Further, the Court must consider whether the Plaintiff can claim damages as a result of the loss of the baby which arose from the termination of the pregnancy which the Plaintiff’s wife underwent in the aftermath of the accident.
Background
The background to the case is as follows: The Plaintiff was born on the 29th June, 1962, and is now forty-eight years of age. He is a business man and he resides at 8 Redford Court, Greystones, Co. Wicklow. He is married to Gráinne Ward since the 10th of August, 1989, and she is also forty-eight years old, having been born on the 30th July, 1961. The couple have two children, aged nineteen and sixteen years.
The Plaintiff’s wife was involved in a road traffic accident on the 6th of February, 1996, at or near the junction of the Bray/ Greystones Road and Redford Estate in Co. Wicklow. In the accident, her car was struck from behind by the first named Defendant’s vehicle and was then struck by a vehicle driven by the second named Defendant. The Defendants’ motor vehicle’s registration numbers are 90D 44796 and YZS 142, respectively. The Plaintiff’s wife suffered severe personal injury, loss, damage, inconvenience and expense as a result of the accident. More specifically, she suffered soft tissue injuries to her neck and back, a TMJ problem, tinnitus and a post traumatic stress disorder. Her claim was settled in 2007 and she received €325,000 damages.
The Plaintiff’s mother, who was not in the Plaintiff’s car at the time and who did not suffer injuries in the accident, instituted proceedings claiming damages in respect of nervous shock arising from having come across the accident scene after the accident had occurred. Her claim was also settled and the Defendants agreed to pay €45,000 damages to her for nervous shock.
The Plaintiff was not in his wife’s car at the time of the accident. He did not suffer any injury in the accident or as a result of the accident. He did not suffer from nervous shock by reason of the accident or the effect of same on his wife and/or her injuries. No claim for damages for nervous shock is made by him in the proceedings.
Following the accident, the Plaintiff’s wife became pregnant. Her medical consultant informed her of the difficulties which the pregnancy would create for her in the light of her physical injuries sustained in the accident and she decided to travel to England to have her pregnancy terminated. She was advised that any further pregnancies would be a danger to her health, both physical and mental. She was informed by her doctor that the best contraceptive method in the couple’s situation would be sterilisation and the Plaintiff’s wife was counselled about tubal ligation. The Plaintiff attended his wife’s doctor in 1998 to discuss the possibility of a vasectomy as he wished to take more responsibility. It is further observed that all of the risks associated with this procedure were discussed with the couple. The Plaintiff had a vasectomy operation on the 6th March, 1998.
The Plaintiff alleges that as a result of undergoing his vasectomy procedure he suffers from a pain condition known as post operative chronic orchalgia. He contends that he would not have had a vasectomy if the accident which the Defendants caused had not happened. It was, he argues, necessitated because of his wife’s injuries. The Plaintiff further contends that the loss of the baby which arose from the termination of the pregnancy and the inability of the Plaintiff to father any other children has caused him great mental distress, depression, grief and anguish. He contends that the Defendants, by reason of their negligent driving caused the said pain condition and are liable to him in damages for same.
The Defendants deny that the Plaintiff has suffered the alleged or any personal injury, loss, damage, inconvenience and expense. The Defendants say that any personal injury, loss, damage or distress suffered by the Plaintiff as a result of the termination of the pregnancy is not amenable to damages, as the award of same would be contrary to public policy. The Defendants argue that if, contrary to what the Defendants contend, the Plaintiff is entitled to damages for the personal injury, loss, damage and distress caused to him as a result of the termination of the said pregnancy, the Plaintiff was guilty of contributory negligence in impregnating the Plaintiff.
Thus the issue before this Court is whether the Plaintiff is entitled to recover damages as a result of his decision to undergo a vasectomy which he claims was necessitated as a result of his wife’s road traffic accident in 1996, or whether damages are unrecoverable on the basis that the Plaintiff elected to undergo such a procedure and any pain or suffering which he experiences as a result of the vasectomy are not related to the said accident. The Court must also consider the Plaintiff’s wife’s termination of the pregnancy which has caused the Plaintiff great mental distress, depression, grief and anguish and the link to the road traffic accident in 1996.
Submissions of the Plaintiff
Counsel for the Plaintiff outline that the road traffic accident in 1996 was caused by negligence and breach of duty by the Defendants to this case, Niall Sheridan and Christine Quinn. The Particulars of Negligence and Breach of Duty on the part of the Defendants include inter alia driving at an excessive speed, failing to keep any proper lookout, failing to give any adequate warning or signal of approach, failing to have any adequate brakes or to apply same, failing to stop or swerve so as to avoid collision and breach of Bye Law 18 of the Road Traffic Bye Law 1964 in driving too close to the Plaintiff’s wife’s vehicle.
Counsel for the Plaintiff submit that following the said accident, the Plaintiff and his wife decided not to continue with the pregnancy because of the risk to the health of the Plaintiff’s wife. The Plaintiff’s wife subsequently travelled to England to have her pregnancy terminated. She was also informed that as a result of her condition, it would not be advisable for her to have a sterilisation process. Consequently, the Plaintiff had a vasectomy operation on the 6th of March, 1998.
Counsel for the Plaintiff submit that the Plaintiff would not have had a vasectomy if the accident which the Defendants caused had not happened. The vasectomy was, however, necessitated because of the Plaintiff’s wife’s injuries. Counsel also contend that the loss of the baby which arose from the termination of the Plaintiff’s wife’s pregnancy as well as the inability of the Plaintiff to father any other children has caused the Plaintiff great mental distress, depression, grief and anguish. Further and other adverse sequelae are also noted as a distinct possibility. As a result of this, Counsel submit that the Plaintiff claims damages, including unascertained special damages such as doctors’ fees, hospital fees, medication and miscellaneous.
Submissions of the Defendants
Counsel for the Defendants submit that the Court must first decide whether or not it accepts the evidence of the Plaintiff that he is suffering from pain, in the form of the alleged condition of post operative chronic orchalgia, since his vasectomy. Counsel puts forward a number of factors for the Court to consider including the fact that the Plaintiff did not contend that he was suffering from pain as a result of the vasectomy until the 26th May, 2000, which was more than two years after the procedure took place and the pain was mentioned for the first time in a Reply to Notice for Particulars.
Counsel also submits that the Plaintiff’s allegation, that his wife’s termination of a pregnancy was necessitated because her life was in danger, is not supported by evidence.
Counsel also outline that the Plaintiff asserted in evidence that he could not recall the amount of damages that he had been paid on the settlement of claims relating to two road traffic accidents, in which he was involved, that occurred subsequent to the accident in 1996. The Plaintiff also asserted in evidence that he could not recall the amount that his wife received on settlement of a claim brought by his wife relating to a road traffic accident in 1987. The Plaintiff’s wife stated that she had received £84,000 compensation for this.
Counsel argues that the Plaintiff accepted that prior to undergoing his vasectomy he was fully advised as to the risks of same, including the risk of the pain condition complained of. Ms. Deborah Orr, the surgeon who performed the vasectomy, states in her report dated the 14th February, 2002, that prior to undergoing the procedure, the Plaintiff informed her that he had no concerns or questions regarding the warning given to him and had no doubt about his decision to proceed with the surgery. She records that she had not, at the time of her report, seen the Plaintiff since his operation. The Plaintiff was also advised that a vasectomy could be reversed. A reversal could remove any pain condition. The Plaintiff has not, at any point in time, taken any step with a view to reversing the vasectomy and/ or his pain condition, if same exists. Counsel also note that no objective, independent evidence was tendered to establish or support the existence of the Plaintiff’s alleged pain condition. Overall, Counsel argues that the Court should not accept the evidence of the Plaintiff to the effect that he is suffering from the pain complained of. If the Court accepts the Plaintiff’s evidence to the effect that he is suffering from pain relating to the vasectomy, legal issues arise for determination.
Counsel for the Defendants also argues that the claim made by the Plaintiff is not a recognisable cause of action under Irish law. The Plaintiff was not in his wife’s car when the accident occurred. He did not suffer any physical injury as a result of same. He did not suffer any mental injury, in the form of nervous shock or a recognised psychiatric illness, as a result of same. He does not advance a claim for damages for loss of consortium resulting from the injuries to his wife. He does not advance a claim for damages for nervous shock suffered by him arising from the proximity of his relationship to his wife. Counsel submit that his cause of action, being one for pain resulting from an independent event, namely his vasectomy, that occurred over two years following the date of his wife’s accident, is not an action that is recognised under Irish law.
As Counsel outline, subject to two exceptions, recovery of damages for injuries resulting from a tort can only be made by the person against whom the tort has been committed. The tort in the present case was committed against the Plaintiff’s wife, not against the Plaintiff. Counsel argues that the Court should refrain from extending Irish law as a matter of policy. In arguing this, Counsel referred to the case of Devlin v. National Maternity Hospital [2008] I.R. 222 to support the fact that Irish courts, as a matter of policy, are not prepared to readily, or at all, extend categories of causes of action on policy grounds.
Counsel argue that if the Plaintiff satisfies the Court that the cause of action on which his claim is based exists under Irish law, he must then establish that the tort complained of caused the injury that is alleged. Counsel submits that the Plaintiff has not established that the pain suffered by him was caused by the tortious acts of the Defendants in the proceedings. In particular, Counsel argue that the Plaintiff made a decision himself to undergo the vasectomy and that it was not necessitated as a means of contraception as the couple had other options open to them. For example, the Plaintiff’s wife could have undergone tubal ligation, despite the Plaintiff’s arguments to the contrary, as no medical evidence was produced to counter this. Further, it was argued that the evidence has established that the Plaintiff was fully advised in relation to the vasectomy and in relation to the risks associated with the procedure. Counsel also observed that the Plaintiff had an opportunity to reverse his vasectomy and he decided against doing this.
According to Counsel, if the Court takes the view that the Plaintiff has a cause of action and has surmounted the causation hurdle, the question then arises as to whether or not the damage suffered by him is too remote. The Plaintiff cannot recover damages for injury that is not reasonably foreseeable. Counsel relied on the dicta of Barrington J. in Condon v. CIE & Ors, High Court, 16th November, 1984, as follows:
“I accept that in determining liability for the consequences of a tortious act of negligence the test to be applied is whether the damage is of such a kind as a reasonable man should have foreseen. I also accept that if the damage is of such a kind as a reasonable man should have foreseen it is quite irrelevant that no one foresaw the actual extent of the damage”.
Counsel outlined a number of factors which the Defendants would have had to have reasonably foreseen, including inter alia, that the Plaintiff’s wife would travel to England to terminate the pregnancy that occurred following the accident notwithstanding the fact that her life was not in danger by reason of the pregnancy; that subsequently the Plaintiff’s wife would decline to undergo tubal ligation; that the Plaintiff would undergo a vasectomy notwithstanding the fact that a condom was used for sexual relations with his wife on at least two occasions following the termination; that the Plaintiff would undergo the vasectomy notwithstanding having been fully warned as to the possible consequences thereof, including the pain condition complained of; that the Plaintiff, because of a dislike of medical procedures, would decide not to undergo a reversal of the vasectomy, thereby causing or permitting the alleged pain to continue.
Overall, Counsel submit that on the facts of this case, it was not reasonably foreseeable by the Defendants and that the continuing pain which the Plaintiff is complaining of is too remote to enable an award of damages to be made in his favour.
Conclusions
The Plaintiff in this case made a decision himself to have a vasectomy. It is evident that the couple had other options available to them in terms of contraception. For example, the Plaintiff’s wife was counselled about the possibility of undergoing tubal ligation. Instead, the Plaintiff attended his wife’s doctor in 1998 to discuss the possibility of a vasectomy as he wished to take more responsibility. Further, all of the risks associated with this procedure were discussed with the couple and the Plaintiff was aware of the risk of pain. In this regard, it is not necessary for this Court to consider whether the Plaintiff is suffering from pain. The Plaintiff seeks damages for pain, mental distress, depression, grief and anguish suffered as a result of the vasectomy as well as for unascertained special damages such as doctors’ fees, hospital fees and medication costs arising as a result of the vasectomy. I find as fact that the Plaintiff has failed, on the balance of probability, to establish causation on the part of the Defendants. I therefore must dismiss the Plaintiff’s case. No damages are awarded in respect of this claim.
The Plaintiff is also claiming damages as a result of the loss of a baby which arose from the termination of his wife’s pregnancy in the aftermath of the accident, which the Plaintiff argues was necessary for his wife’s physical and mental health. The Plaintiff claims damages for mental distress, depression, grief and anguish as a result of this. Again, I find as fact that the plaintiff has failed, on the balance of probability, to establish causation on the part of the Defendants. I therefore must dismiss the Plaintiff’s case. No damages are awarded.
Griffin v Hoare
[2020] IEHC 40
Page 1 ⇓THE HIGH COURT[2020] IEHC 40[2017 No. 4797 P.]BETWEENCAOIMHÍN GRIFFINPLAINTIFFANDDAN HOAREDEFENDANTJUDGMENT of Mr. Justice Barr delivered on the 24th day of January, 20201. This action arises out of a road traffic accident which occurred on 25th November 2014 at06:50 hours on the Caherciveen to Killorglin road in County Kerry. The plaintiff wastravelling in his Mitsubishi Lancer car going in the direction of Killorglin, when he crashedhead-on into the defendant’s lorry, which was travelling in the opposite direction.2. The section of the road on which the accident occurred had a number of bends and wasquite narrow. The width of the carriageway on the plaintiff’s side was 9’4″. To its leftthere was a gap of 3’6″ between the broken yellow lines and the Armco fencing, beyondwhich there was a sheer drop down to the sea. However, the Armco fencing wasembedded in shrubbery, such that the only usable surface on the plaintiff’s side was thewidth of the road carriageway itself.3. On the defendant’s side, the carriageway measured 10’8″. There was a margin of 2’3″between the yellow road markings on the side of the road and the mountainside, whichrose steeply to the left of the defendant’s vehicle. Again, due to vegetation and theproximity of the rock face, the defendant effectively only had the use of the carriagewayon his side of the road.4. The defendant was driving a lorry which was made up of a DAF cab and an articulatedtrailer attached thereto, which was going to be used to transport a consignment of treeswhich have been cut into logs. The trailer was empty at the time of the accident, as thedefendant was on his way to a forest to pick up the logs. The overall length of the lorry,including the trailer, measured 49 feet.5. It was common case between the parties that at the time of the accident, it was pitchdark and it was a damp and misty morning. The surface of the road was wet.6. There is a complete divergence between the plaintiff and the defendant in relation to thecircumstances which led to the head-on collision between the vehicles. In summary, it isthe plaintiff’s case that when he came around a right hand bend, he was met with a “wallof lights” which was taking up the entirety of the road. The plaintiff stated that he had noopportunity to take any evasive action but that he kept his vehicle driving in a straightline and collided with the front of the defendant’s lorry, and then spun around so that hisdriver’s side was wedged tight up against the front of the lorry, with the front of his carfacing out towards the sea. The plaintiff maintains that he was blinded by the lights onthe defendant’s vehicle because both the dipped headlight bulbs and the full headlights onthe front of the vehicle were on, as were the lights above the cab of the lorry. The plaintiffPage 2 ⇓stated that he was travelling at approximately 75km/h prior to the accident. He statedthat the speed limit on the road was 100km/h.7. The defendant’s account is that as he was driving along this stretch of winding road, hecould see the oncoming lights from the plaintiff’s car before he actually saw the vehicle.He saw the plaintiff’s car coming around the bend on its correct side of the road, but at aterrific speed. He states that the plaintiff then lost control of his vehicle, veered over ontohis side of the carriageway and then collided head-on with his lorry. The defendant statesthat when he first saw the approach of the plaintiff’s lights, he dipped his headlightswhich automatically turned off the lights on the roof of his cab.8. The defendant was adamant that, while the rear wheel of his trailer was partially over thecentre white line on the road, the cab itself was always on its correct side of the road. Hestated that he was not in any way responsible for the accident, as he had been travellingat approximately 30 – 40km/h and had slowed to approximately 20km/h at the time ofthe impact. He was of the view that the plaintiff was entirely responsible for the accident,as he had simply lost control of his car due to the fact that he was travelling far too fasthaving regard to the condition of the road surface and the fact that it was a narrow roadwith a number of bends.9. It is common case that after the collision, the plaintiff managed to get out of the frontpassenger door of his vehicle and was able to move away from the vehicle. Anothermotorist who had arrived on the scene, Mr. O’Sullivan, came to the plaintiff’s assistanceand brought him to sit in his van. The defendant had alighted from his lorry and as theplaintiff appeared to be in considerable pain and was shivering with cold, the defendantgot a jacket from his lorry and put it around the plaintiff’s shoulders. He then returned tohis lorry to await the arrival of the gardaí and the ambulance, which had been called toassist the plaintiff. The defendant did not suffer any injury in the accident.10. The Court heard evidence from the driver who had come to the assistance of the plaintiff.Mr. Dónal O’Sullivan lives in Caherciveen. He was travelling in the same direction as theplaintiff but was a considerable distance behind him. He stated that when he came aroundthe right hand bend as shown in photograph number one of the engineer’s photographs,he saw a lot of lights ahead of him. He did not know what it was. He just saw a lot oflights together. He slowed his van and almost came to a stop. He approached quite slowlyand then he saw the plaintiff walking on the road.11. Mr. O’Sullivan stated that he pulled his van in to the right hand side and was parked some6 feet behind the plaintiff’s car which was sideways at the front of the defendant’s lorry.He parked on the right, so as not to block the left carriageway of the road. He stated thatwhen he got out of his vehicle all he could see were lights coming from the front of thelorry. He stated that they were very bright. The lights were up high and were on.12. In cross-examination, Mr. O’Sullivan accepted that in a statement which he had made tothe gardaí on 6th January, 2015, he had not mentioned seeing any lights on any of thevehicles. He explained this by stating that he only answered the questions which thePage 3 ⇓garda had put to him. He had not been asked any questions about lights. He justanswered the questions so that he could get out of the Garda Station as fast as he could.13. It was put to the witness that in a telephone conversation which he had had with thedefendant’s solicitor on 15th March, 2019, the solicitor had made a memo of theconversation in which he recorded that the witness had said “he didn’t notice anything atall about the lights on the truck”. Mr. O’Sullivan stated that he had merely returned thecall to the defendant’s solicitor, when he saw that he had received a missed call on hismobile phone. He could not recall making that comment about the lights to the solicitor.However, when pressed on the matter, he conceded that if they defended and thesolicitor stated that he had made that comment, he would accept it, but he did not recallmaking that comment.14. He accepted that other portions of the memo were correct, in particular that he had notactually seen the collision and that the accident had occurred on a “dirty morning”.However, he took issue with the memo where it said that “he was driving behind the car”,as he had not been driving behind the plaintiff’s car, he had merely been going in thesame direction.15. Mr. O’Sullivan stated that he had not seen the damage to the plaintiff’s car. It was put tohim that having regard to the extensive frontal damage to the plaintiff’s vehicle, as shownin the Garda photographs, it was implausible for him to say that he was not aware of thatdamage. The witness stated that when he pulled in his car, he saw the plaintiff walkingaway from his vehicle in obvious pain. His primary concern was to aid the plaintiff. It hadbeen a very dark morning and he had approached the vehicle from the passenger side.For all of these reasons he had not taken account of the extensive frontal damage to theplaintiff’s car.16. Mr. O’Sullivan stated that while he did not know the plaintiff, he had known the plaintiff’sdeceased father and also knew the plaintiff’s mother.17. Evidence was given by Mr. James O’Brien, a forensic collision investigator retained onbehalf of the plaintiff. He stated that he had been a member of An Garda Siochána for 37years, until he retired in July 2019. He had spent the first 10 years in Dublin andthereafter he had been the PSV Inspector and the forensic collision investigator (FCI) inCounty Kerry. In 2001 he had become a specialist forensic collision investigator. He haddone a level 7 course in police forensic collision investigating in London. That was done inthe City and Guilds Institute and was a four-year long programme. He had also done amechanical engineering degree in LIT. Since 2001 he had been part of the forensiccollision investigation team for Munster. They have regularly examined accident scenes.They would be called out to look at approximately 25 accident scenes per year. This wasonly in respect of fatal accidents, accidents in which there were life changing injuries,meaning loss of a limb, or accidents involving state vehicles. Since his retirement he hadbeen in private practice as a forensic collision investigator working with a company calledAssess Ireland.Page 4 ⇓18. Mr. O’Brien stated that the Garda photographs were “live” in that they had been taken atthe scene of the accident in the immediate aftermath thereof. It was clear fromphotograph number two that the rear right wheel on the defendant’s trailer was over thecentre white line. He was of the view that on close inspection of photograph number one,it was just about possible to make out the centre white line directly in front of thedamaged portion to the front of the plaintiff’s car as shown in that photograph. Thatindicated that at that point the front of the defendant’s lorry was some 8 – 10 inches onthe plaintiff’s side of the road.19. Based on photographs one, two and three, he was of the view that the defendant’s lorrywas slightly at an angle pointing to its left, towards the mountainside. This indicated tothe witness that the lorry had been in the process of moving to its left, into its correctlane, in the moments prior to and at the time of the impact between the vehicles. Thedirection of travel of the lorry was back in towards the left margin.20. In relation to the lights on the defendant’s lorry, there were four lights at the front of thecab. These were made up of the dipped beams which would point downwards onto theroad surface and slightly to the left. There were also the full headlight beams which wouldpoint directly straight in front. On this lorry there were also four lights mounted on theroof of the cab. These were activated by a switch on the steering column, which meantthat they could be turned off completely so that they would never come on, e.g. whenone is travelling in a city or built-up area, or they could be switched on such that theywould become operational whenever the full headlights were put on. The lights mountedon the cab would point downwards onto the road so as to illuminate an area ofapproximately 100m in front of the vehicle.21. It was also necessary to have regard to the wet surface of the road which will act in areflecting manner such that the lights from the vehicle would also be reflected back fromthe road surface itself, as could be seen with the Garda vehicle shown in photographsnumber six and seven.22. In relation to the respective weights of the vehicles, he estimated that the defendant’slorry weighed approximately 20 tonnes and the plaintiff’s car weighed approximately 1tonne.23. Mr. O’Brien stated that if the plaintiff had been travelling at the speed stated by him of 75km/h and the defendant had been travelling at approximately 40 km/h, reducing to 20km/h at the time of the impact, that would give a closing impact at the point of collisionof approximately 100 km/h. Having viewed the Garda photographs showing the damageto the plaintiff’s vehicle, it was clear that the overall damage had been caused by acombination of two impacts. The first impact had been between the front of the plaintiff’scar and the front of the defendant’s lorry, with the damage thereto being primarily in thecentre of the front of the lorry extending to its left. The secondary damage to theplaintiff’s car had been caused to the driver’s door and was due to the spinning of the carafter the initial impact and it becoming wedged against the front of the defendant’s lorry.Page 5 ⇓24. He was satisfied that the estimate of a closing speed of approximately 100 km/h at thepoint of impact was accurate having regard to the damage done to the vehicles, and inparticular the damage done to the plaintiff’s car. In this regard it was important to notethat all of the initial impact had been absorbed by the frontal zone of the car which hadcrumpled and had been extensively damaged, as shown in the photographs. However, theA pillar holding the windscreen had not been extensively damaged, nor had there beenextensive damage to the driver’s compartment of the car, nor had the windscreenshattered. He was satisfied that the damage to the plaintiff’s vehicle was consistent withthe speed as described by the plaintiff in his evidence. He would not estimate theplaintiff’s speed as being any greater, because if it had been greater he would haveexpected to have found damage to the A pillar, damage to the floor of the plaintiff’svehicle and damage to the front passenger door.25. Mr. O’Brien stated that if the lights on the defendant’s vehicle, including the cab lights,had been fully illuminated, that would have been dazzling and disorientating for the driverof an oncoming vehicle, particularly as such lights would also have been reflected fromthe wet road surface.26. In cross-examination Mr. O’Brien accepted that the accident had happened on theplaintiff’s incorrect side of the road. He accepted that the plaintiff had hit the portion ofthe defendant’s lorry that was on its correct side of the road as the impact had occurredto the centre and left side of the front of the lorry. He did not accept that the end positionof the lorry was straight, but was nosed slightly to the left. He accepted that he had notmentioned that in his report. He confirmed that he had visited the location in advance ofgiving his report.27. He accepted that each of the vehicles would have had a sight distance of in or about100m given the locus of the accident as identified by the plaintiff in photograph numbertwo of the engineer’s photographs. He accepted that on a dark morning one would beaware of the lights of an oncoming vehicle before one actually saw it. He thought that thelights might have been visible up to 150m. He confirmed that there had been no breakmarks at the scene from either vehicle, but that was not significant, given that the roadsurface had been wet. He accepted that the plaintiff was incorrect when he stated in hisevidence that he thought that he had at all times stayed on the correct side of the road.He believed that the plaintiff had veered to his right in an effort to avoid the oncomingvehicle as he knew that he had the ocean to his left.28. Mr. O’Brien did not accept that there was plenty of room for the plaintiff to pass thedefendant’s lorry had he stayed on the correct side of the road. He did not accept thatsuch proposition was feasible having regard to the position of the oncoming cars as shownin Garda photographs number two and three. He pointed out that those cars wereproceeding at a slow pace and in a controlled environment under Garda supervision.29. He did not accept that the plaintiff would have been aware of the approach of thedefendant’s vehicle from seeing its headlights, because given the contour of the road asshown in photograph number two of the engineer’s photographs, the headlights of thePage 6 ⇓oncoming lorry would have been pointing into the mountain until it rounded the righthand bend which it made before coming to the portion of the road shown in photographnumber two.30. In re-examination, Mr. O’Brien stated that having regard to the length of the lorry, andthe position that it was in, as shown in the Garda photograph number 12, he was of theview that it was pointing in towards its left at the moment of impact. This suggested thatthe direction of travel of the lorry in the seconds prior to the impact had been bringing thelorry from the incorrect side over onto the correct side of the road. This suggested thatapproximately 15m back, the lorry would have been more out onto the incorrect side thanat the point of impact.31. Evidence was also given by Mr. Vincent Kelly, consulting engineer. He confirmed thewidths of the carriageways on either side of the road as outlined earlier in the judgment.He confirmed that each vehicle would have had a sight line of the other of approximately120m. He stated that Garda photograph number two showed that the rear of thedefendant’s vehicle was approximately 1 foot over the centre white line. He was not sureabout the wheel of the cab of the lorry. It may have been inside the centre white line.32. He felt that the core issue in this case was whether the plaintiff had been blinded by thelights on the defendant’s lorry. If they had been illuminated, then an oncoming drivercould have been blinded, such that a person’s decision-making would be taken out of syncbecause they would not prepared for such an eventuality. It was an uncertain situationbecause the driver would not know what was behind the wall of lights. In suchcircumstances they were likely to make errors. Their capacity to deal with the emergencywould have been reduced.33. In cross-examination he accepted that some of his evidence-in-chief had not beencontained in his report. He accepted that he had not commented on the position of thelorry, but he had only had black and white photographs of poor quality at the time that hemade his report. He had since been furnished with colour copies of the Gardaphotographs. Even with the benefit of these photographs he could only say that the rearwheel of the lorry appeared to be outside the centre white line. He could not saydefinitively where the front wheel was located on the road surface. He could not saywhether there was a white line visible in Garda photograph number one. He accepted thatit was not possible for him to give an opinion as to what speed the vehicles weretravelling at the time of the impact from the photographs that have been supplied to him.He was not able to understand how Mr. O’Brien could give such an opinion.34. Having considered carefully all of the evidence given by the plaintiff and the defendant,together with the evidence given by the independent witnesses and having regard to thephotographs that have been furnished to the Court, together with the reports which havebeen handed into the Court, it has been possible for the Court to reach a decision in thiscase. There is no real controversy as to the point of impact between the two vehicles.This was a head-on collision between the front of the plaintiff’s car and the front of thedefendant’s lorry, primarily to the centre of the front of the lorry and extending to its left.Page 7 ⇓It is clear from Garda photograph number one that the right-hand portion of the front ofthe defendant’s lorry was not damaged. In particular the front headlight appears to havebeen undamaged and was working after the impact.35. In relation to the point of impact on the road, the Court is satisfied that contrary to theplaintiff’s evidence the collision occurred on the defendant’s side of the road. It is clearthat after the frontal collision occurred the plaintiff’s car spun around and came to restwith its driver-side wedged against the front of the cab. It is clear from the Gardaphotographs that the plaintiff’s side of the road remained largely, though not completely,clear.36. The Court is satisfied that the defendant’s lorry was partially on the incorrect side of theroad. This is clear from photograph number two of the Garda photographs, which showsthe rear of the trailer extending over the centre white line onto the incorrect side of theroad. Indeed, the defendant himself accepted that that was likely having regard to thefact that he had just made a right hand turn coming around a bend and due to the factthat the vehicle was an articulated lorry. However, the Court does not accept thedefendant’s evidence that at all time the cab remained on its correct side of the road andwas so positioned at the time of the impact. The Court is satisfied that from a closeexamination of photograph number one, the centre white line can be seen running almostcontinuously under the cab and proceeding towards the camera under the front rightheadlamp and in front of the damaged portion of the plaintiff’s car. While that is notentirely clear from photograph number one, such position is clear from photographs 12and 13, which were taken in daylight hours and show the white line immediately in frontof the damaged portion of the plaintiff’s car.37. That being the case, the Court accepts the evidence of Mr. O’Brien that the direction oftravel of the defendant’s lorry was probably proceeding from a position that was more onthe incorrect side of the road to a position on the correct side at the time of the impact.Accordingly, the Court accepts the view put forward by Mr. O’Brien that in the secondsprior to the impact, the defendant’s vehicle was, on the balance of probabilities, more onthe incorrect side than at the time of the collision.38. The Court is satisfied that neither vehicle was going excessively fast at the point ofimpact. The Court accepts the evidence of the defendant that he was travelling circa 30 –40km/h, slowing to circa 20km/h at the time of impact. The Court also accepts theplaintiff’s evidence that he was travelling at circa 75km/h as he came around the bend asshown in photograph number one, and proceeded onto the slight straight stretch inphotograph number two. In this regard, the Court accepts the evidence of Mr. O’Brien. Heis a witness with specialist forensic collision investigation skills. He has been trained to avery high degree in this area and has many years’ experience investigating suchaccidents. It seems to the Court that he is correct when he states that the entirety of theinitial damage, which is caused by the initial impact, was to the frontal portion of theplaintiff’s car. The Court accepts his evidence that there does not appear to be significantdamage either to the A pillar, or to the driver’s compartment, or to the floor thereof, or toPage 8 ⇓the front passenger door, and that the absence of such damage is indicative of the factthat the plaintiff was not travelling at a speed greater than that stated by him. The Courtis satisfied that the damage to his vehicle is consistent with his evidence in relation to hisspeed.39. The only evidence in relation to the applicable speed limit on this road, was that given bythe plaintiff, which was to the effect that the applicable speed limit was 100km/h. Thatevidence was not contradicted.40. In these circumstances the Court is satisfied that the plaintiff was not travelling at anexceedingly fast speed as he rounded the corner as maintained by the defendant. It isalso significant that the defendant accepted that the plaintiff was on his correct side of theroad when he first saw the plaintiff’s vehicle. Both parties are in agreement that the locusof the collision was somewhere on the road as shown in photograph number two of theengineer’s photographs at approximately the point from which the photographs weretaken in photographs number three and four.41. The question which therefore arises is: if the plaintiff was not travelling at an excessivespeed and was on his correct side of the road when first seen by the defendant, whatcaused him to veer across the road onto his incorrect side and collide head-on with thedefendant’s lorry? It seems to me that the only rational explanation is that he was blindedby a wall of light emanating from the front of the defendant’s lorry, due to the fact thatthe full headlights were on, together with the lights on the roof of the cab, and that thoselights were also being reflected from the wet surface of the road. Accordingly, I accept theplaintiff’s evidence that he was met with a “wall of light” when he rounded the bend asshown in photographs number one and two of the engineer’s photographs.42. I accept the evidence of Mr. O’Brien and Mr. Kelly, which indeed was accepted as aproposition by the defendant, that if his full headlights and cab lights were on, anoncoming driver would be dazzled and would become disorientated and could possiblylose control of his vehicle. I am satisfied that this was the most likely explanation for whya car that was not travelling at excessive speed should veer across the road and collidehead-on with an oncoming lorry.43. While there was no specific evidence given on this, my rough calculations would suggestthat if the plaintiff was travelling at 75km/h and the defendant was travelling at 40km/h,reducing to 20km/h at the point of impact, and given that they had a sight line ofapproximately 120m, the two vehicles would have met one another in a time of in orabout four seconds.44. The plaintiff’s account of the full lights being on on the defendant’s vehicle as he roundedthe bend, is supported by the evidence of Mr. O’Sullivan. His clear evidence was that thecab lights on the lorry were illuminated when he came upon the scene. While it iscertainly true that Mr. O’Sullivan is known to the plaintiff’s mother and was known to hisdeceased father and while he appears to have been recorded as having said something tothe contrary to the defendant’s solicitor in a telephone conversation on 15th March, 2019,Page 9 ⇓I am satisfied on the balance of probabilities that this witness has done his best to tell thetruth in his evidence to the Court. Having seen and listened to this witness, I am satisfiedthat he has not told a series of untruths with a view to assisting the plaintiff in making anunfounded claim against the defendant. I accept his account of what he saw when hecame on the scene.45. Having watched and listened to the plaintiff give his evidence I am satisfied that he is anhonest gentleman and that his account of being met with a “wall of light” was a truthfulstatement of evidence and correctly described the situation with which he was confrontedas he rounded the bend on the morning in question.46. Taking all of these matters into account, I am satisfied that this accident was caused bythe negligence of the defendant in driving partially on the incorrect side of the road andmore importantly, in driving with his full headlights and roof lights on at a time when itwas unsafe and dangerous to do so, having regard to the presence of oncoming traffic onthe road at that time. Accordingly, liability for this accident must rest with the defendant.47. As I’ve already found that the plaintiff was not travelling at an excessive speed at thetime of the accident and as I am satisfied from the evidence given by Mr. O’Brien and Mr.Kelly that once the plaintiff was dazzled by the lights coming from the defendant’svehicle, the ensuing consequences, whereby he veered across the road and collided intothe defendant’s vehicle, was not due to any negligence on the part of the plaintiff.Accordingly, I do not find any contributory negligence against him.48. I turn now to consider the plaintiff’s injuries. The plaintiff is a young man of 27 years ofage, having been born on 27th December, 1992. At the time of the accident he wasnearing the end of his apprenticeship as an electrician. On the day of the accident he wastravelling to Cork Institute of Technology for a final lecture, before an exam on thefollowing day. Notwithstanding the injuries sustained in the accident, he managed tocomplete his apprenticeship and qualified as an electrician in Spring 2015.49. As a result of the accident, the plaintiff suffered a comminuted fracture of his left patella,a fracture of his right clavicle and multiple abrasions and soft tissue contusions. He wasadmitted to Kerry General Hospital, where he was admitted for four days. During thisperiod he was brought to the operating theatre, where the knee fracture was stabilisedwith open reduction and internal fixation. The clavicle fracture was treated conservativelyby immobilising the shoulder in a sling.50. On 24th April, 2015, the plaintiff was brought to theatre for removal of the tension bandwiring. His knee was also manipulated under general anaesthetic. A left knee arthroscopywith debridement was carried out on 6th May, 2015. He had a further manipulation underanaesthetic in November 2016. His knee was also injected on one location.51. The plaintiff has experienced significant pain and disablement as a result of the fracturesand in particular as a result of the patellar fracture. Prior to the accident he had been akeen footballer playing with his local club, St Michael’s/Foilmore GAA Club. He has notPage 10 ⇓been able to play Gaelic football since the accident. Of perhaps more concern to him, isthe fact that he has been unable to pursue his chosen career as an electrician as a resultof the injuries sustained in the accident.52. He was able to manage the completion of his apprenticeship due to the fact that he wasworking with his uncle, who was aware of his injuries and was accommodating in relationto his work requirements. The plaintiff gave evidence to the Court that he had tried on anumber of occasions to return to work with his uncle as an electrician. He had onlymanaged to do a few days here and there, but had had to desist from such efforts due tosevere knee pain. In particular, he is not able to squat or kneel without experiencingsevere knee pain. This makes work as an electrician almost impossible for him. Inaddition, he has difficulty using ladders and is fearful when working with them due toinstability in his knee.53. The plaintiff did two periods of bar work, the first lasting for 6 – 7 months and the secondlasting for approximately 8 months. He was able to manage the work, but he found itdifficult due to prolonged periods of standing. In 2016, the plaintiff did some farmingwhen he rented a neighbour’s farm, which was 50 acres, but much of that was bog. In2017 he took over working his mother’s farm. He finds that he is able for this workbecause he can manage what jobs he does and he can take breaks as necessary. Inaddition, he uses a quad bike and tractor to get around the farm. The farm consists of drycattle and sheep, so the work is not too strenuous. He brings in a contractor to do thesheep shearing.54. In relation to his present condition, the plaintiff stated that his right shoulder wasrelatively good. He has a full range of movement in it. He gets occasional pain in theshoulder, which can come on spontaneously, or if he does overhead work.55. The plaintiff stated that his knee was still very bad. It would be painful when standing orsitting for a long time. He had had more than 20 sessions of physiotherapy, but was nothaving any treatment at present. He was not taking any medication. He has beendischarged from medical care and has been told that with the exception of possible futureinjections to the knee, no further surgical treatment is anticipated.56. He has difficulty lying in certain positions in his bed and the knee can stiffen if he is sittingwatching television for too long. The knee can be stiff when getting up in the morning. Hehas been told that arthritis will be a problem for him.57. The Court had the benefit of two medical reports, being a report from Mr. Kieran Barry,consultant orthopaedic surgeon in Cork, based on an examination on 5th July, 2018, anda report from Mr. Tony Higgins, consultant orthopaedic surgeon at University HospitalKerry, who was the treating surgeon and who examined the plaintiff on 19th December,2018. Both reports confirm the injuries as outlined above and the surgical treatment aspreviously described.Page 11 ⇓58. Mr. Higgins noted that the plaintiff was unable to kneel on his left side. He was of theopinion that the plaintiff will not be able to work as an electrician which will obviouslyrequire squatting and kneeling on a regular basis. He noted that further treatment in theform of injections to the knee may be indicated. Both doctors were in agreement that asthere had been disruption of the articulating surface of the patella, the plaintiff was placedat risk of developing post-traumatic patella femoral osteoarthritis in the longer term.59. The Court was impressed with the plaintiff in his account of his injuries. He did notattempt to exaggerate either the level of his symptoms nor the extent of his ongoingdisablement. The Court is satisfied that he has given a truthful account both of his injuriesto date and as to his present condition. This young man suffered a serious injury to hisleft knee together with a less serious fracture to his right clavicle.60. He has been disabled in the work aspects of his life, in that, while he can pursue someforms of employment such as farming, he has been deprived of the ability to pursue hischosen career as an electrician. In fairness to the plaintiff, he did not make a great dealabout that, but the Court appreciates that it must be a source of some sadness ordisappointment to him. The Court is also mindful that as a young man, he has beendeprived since the accident of the ability to pursue his sporting career as a Gaelicfootballer. In a rural community, that is a serious loss to a young man who was engagedin sporting activity with his local club. The Court is satisfied that the plaintiff continues toexperience the pain and suffering which he described in his evidence. The medicalevidence before the Court is that he will experience symptoms in his knee into the futureand is likely to develop post-traumatic osteoarthritis in the future.61. Taking all of these matters into account, the Court awards the plaintiff the sum of€85,000 for pain and suffering to date and the sum of €70,000 for pain and suffering intothe future, together with agreed special damages of €5,968 giving a total award in favourof the plaintiff of €160,968.
Result: Plaintiff’s claim for damages arising out of a personal injury successful
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