If you are considering bringing legal proceedings for professional negligence the Court of Appeal has recently confirmed you will need an expert report or opinion. If you do not have such an opinion your claim is ‘bound to fail’ according to the High Court in Andrew Mangan (a minor) v Julian Dockeray and By Order Brian Denham and Mount Carmel Hospital.
In this case Mr. Mangan’s case against the defendants was dismissed by reason of the absence of expert medical evidence.
Background
Mr. Dockeray, a consultant obstetrician, had provided antenatal care to Mr. Mangan; Mr. Denham, a paediatrician, had provided neonatal care and Mount Carmel Hospital was where Mr. Mangan was born in 1995. It was at the time of his birth that Mr. Mangan had suffered various injuries including cerebral palsy.
In 2008 Mr. Mangan brought legal proceedings against Mr. Dockeray, the obstetrician. Mr. Dockeray brought an application to join Mr. Denham and Mount Carmel Hospital and this application was grounded on an affidavit of Mr. Dockeray’s solicitor. This affidavit stated that an expert opinion had been obtained by Mr. Dockeray and this expert report criticised the care provided by Mr. Denham and the hospital. This expert report was not exhibited in the solicitor’s affidavit, however, and Mr. Mangan never had sight of it.
Application to joint defendants
Mr. Mangan’s application to join the second and third defendants to his proceedings succeeded but Mr. Mangan confirmed he did not have any expert opinion or report which supported his claim against the second and third defendant; he was relying on the expert report of Mr. Dockeray’s, a report he had never seen.
The second defendant, Mr. Denham, the paediatrician and Mount Carmel hospital applied to have the proceedings against them struck out on the basis that Mr. Mangan had no expert report alleging negligence against them as required by the Rules of the Superior Courts (Order 19 Rule 28). Their argument was that the action against them had no prospect of success and was frivolous and vexatious, particularly in the absence of expert opinion against them.
Mr. Mangan was relying on the affidavit of Mr. Dockeray’s solicitor alleging negligence against Mr. Dockeray and the hospital but neither Mr. Mangan nor his legal team had seen this expert medical report.
High Court Decision
The High Court dismissed Mr. Mangan’s claim against the hospital and Mr. Dockeray for he had never made any allegations against them. Moreover, Justice Binchy found
Mr. Mangan’s expert report made no connection between his injuries and Mr. Dockeray and the hospital
Mr. Mangan could have sought more time to obtain his own expert report but had not done so
When a plaintiff declines to make any allegations against another party his pleadings will not disclose any reasonable cause of action, contrary to Order 19, Rule 28 of the Rules of the Superior Courts
It would fly in the face of logic to allow a claim against two defendants in circumstances where Mr. Mangan had made no allegations against them and he was merely relying on an affidavit of another solicitor which makes reference to a medical report but does not exhibit it in the affidavit.
Court of Appeal
Mr. Mangan appealed the decision of the High Court to the Court of Appeal and sought more time to obtain his own expert medical opinion. The Court of Appeal did not allow his appeal and decided the High Court had correctly applied the law to the facts of the case.
The Court of Appeal held that, having regard to the long timeline involved in this case, to give Mr. Mangan further time would be unfair to the hospital and the paediatrician.
The High Court decision in Rossiter v Donlon is a useful one
to look at when it comes to increasing our understanding of professional
negligence, and what you need to prove to bring home such a legal action.
Background
The background to the case is that Ms. Rossiter sued Dr.
Donlon for professional negligence arising from his advice and care in a
consultation in which she presented with a history of an armpit lump.
Ms. Rossiter noticed a lump in her left armpit and after
three months she went to Dr. Donlon. She was 32 years old at that stage in
2014. Dr. Donlon examined her left armpit and could not discern any lump. Dr. Donlon
reassured her and told her to return to if the lump returned.
Ms. Rossiter attended Dr… Donlon, and other doctors, for approximately
two years for the treatment of eczema but there was no further mention of the
armpit lump.
In August 2016 she attended another doctor with a lump on
her left breast and was diagnosed with terminal breast cancer.
Ms. Rossiter claimed the breast cancer could have been diagnosed
earlier if she was referred to a Breast Clinic in 2014 by Dr. Donlon; she
further claimed that Dr. Donlon had carried out an inadequate examination and had
failed to carry out a breast examination in 2014.
Dr. Donlon’s evidence was that a breast examination was
offered but this was declined, and she asserted that Ms. Rossiter agreed with her
on the day that there was no lump present. Ms. Rossiter denied Dr. Donlon told her
to return if there was a recurrence of the lump and she claimed that the lump
persisted after the September 2014 consultation.
It was clear from the evidence of both parties that there were
important conflicts of evidence on a number of points as to what was said at
the September 2014 consultation. The Court preferred Dr. Donlon’s evidence on
most heads, however, because she had made notes at the time of the consultation
and these notes were preferred to the memory recall of Ms. Rossiter.
Dr. Donlon’s notes stated, “declined breast exam”. If the
Court was to accept Ms. Rossiter’s evidence over the notes of Dr. Donlon it
would meant that this note was a lie and added after the fact. This would be an
extremely serious finding for the court to arrive at against a doctor and,
furthermore, Ms. Rossiter’s legal team did not make this allegation or put this
proposition to Dr. Donlon during cross-examination.
Expert medical evidence was produced by both sides as to the
rate of tumour growth in an attempt to arrive at the likely size of the tumour
in 2014. The evidence of Dr. Donlon’s expert witness was preferred and, on that
basis, it was estimated that the size of the tumour in September 2014 would
have been .6cm in size which is below the threshold size of 1 cm to have been
discoverable on palpation by a GP at that time.
Negligence?
Mr. Justice Barr had to look at two questions when deciding whether
Dr. Donlon was negligent or not:
Should Dr. Donlon have insisted more strongly
that Ms. Rossiter attend for a breast examination when it was declined?
Should Dr. Donlon have arranged a review
appointment at a later date?
It was decided that where both doctor and patient disagreed about
the presence of a lump a further consultation should have been scheduled;
however, in this case there was agreement that there was no lump and, therefore,
no need to arrange a further consultation.
Mr. Justice Barr also found that even if Dr. Donlon was
negligent in failing to refer Ms. Rossiter for a breast exam in 2014 this failure
did not lead to any loss or injury.
He also held that, having regard to the rate of growth of the tumour from 2014 to 2016 when it was discovered, it would not have been detectable in September 2014 due to its small size.
A secondary school student has had his High Court legal
action thrown out by the Judge.
The background is the student was suspended from a secondary
school over the allegation that he had sold €20 worth of cannabis in the
school. The student admitted using the cannabis which was found in his
schoolbag on the school premises.
He denied, however, he was involved in supplying the drug.
His application to the High Court was grounded on his
assertion that the decision which would be arrived at as part of the
disciplinary procedure was contaminated and prejudged as he claimed the school
principal had contaminated the process by reason of his making findings of fact
as part of the investigation stage.
He also alleged he would not be able to challenge the
evidence against him at the proposed disciplinary hearing held by the board of
management of the school and claimed an absence of fair procedures to date.
The Judge did not agree.
Premature application
The Judge in this High Court application said the application
was premature and came nowhere near meeting the threshold for court
intervention.
Justice Simons pointed to the fact that the school
disciplinary process had not yet been completed and even when it was completed
there was a statutory appeal process open to the student pursuant to section
29 of the Education Act, 1998.
This section 29 appeal involves a full hearing of the case
on its merits before a committee of 3 persons appointed by the Department of
Education. This should be availed of before heading off to the High Court, said
Justice Simons.
The Judge stated that availing of these procedures would be
cheaper and faster than going to the High Court and rejected the student’s
application to judicially review the proposed disciplinary process. Justice
Simons commented that this application could cost six figures in legal costs.
Interestingly Justice Simons also commented that school boards
would be very slow to expel students if they are exposed to significant legal
costs, even if they won their case, and a decision by him to grant the
application wold have a ‘chilling effect’ on school boards of management.
In summary, the Judge said this application was premature
and the student should have availed of the cheaper and faster procedures open
to him rather than going to the High Court to try to halt the disciplinary.
Choosing which Court to pursue your legal proceedings in is an important decision with a potentially costly outcome if you pursue your cause of action in the wrong Court. Two recent cases illustrate this:
Moin -v- Sicika and
O’Malley -v- McEvoy
Two personal injuries cases were brought in the High Court but the awards were within the Circuit Court scale. The plaintiff was awarded costs on the Circuit Court scale but the Judge refused the defendant’s request for a differential costs order.
The defendant appealed this decision to the Court of Appeal and succeeded in getting a differential costs order.
This order allows the Judge who makes the award of damages to the plaintiff on the lower court scale to order that the plaintiff pay the difference between the costs actually incurred by the defendant and those that would have been incurred if the case was brought in the correct court.
The Judge can measure these costs or order that they be taxed and the differential costs provision also provides for a set-off against the plaintiff’s costs.
“Limitation on amount of plaintiff’s costs in certain proceedings.
17.—(1) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsections (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.
(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds £25,000 but does not exceed £30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.
(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds £5,000 but does not exceed £15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.
(4) It shall not be lawful for rules of court to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this subsection shall prevent the insertion in rules of court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by this section nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding.
(5) (a) Where an order is made by a court in favour of the plaintiff or applicant in any proceedings (not being an appeal) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the judge concerned may, if in all the circumstances he thinks it appropriate to do so, make an order for the payment to the defendant or respondent in the proceedings by the plaintiff or applicant of an amount not exceeding whichever of the following the judge considers appropriate:
(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the defendant or respondent by reason of the fact that the proceedings were not commenced and determined in the said lowest court, or
(ii) an amount equal to the difference between—
(I) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and
(II) the amount of the costs as between party and party incurred in the proceedings by the defendant or respondent as taxed by a Taxing Master of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar on a scale that he considers would have been appropriate if the proceedings had been heard and determined in the said lowest court.
(b) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his right to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first-mentioned person.
(6) In this section ‘relief’ includes damages.”.
The Court of Appeal held that it was incumbent upon a Judge where an award is made on the lower court scale to make a differential costs order unless there is a good reason for not doing so.
The Court of Appeal also noted it is necessary for the Plaintiff to pursue his case in the lowest court that can award what is reasonable in the circumstances of the case and if he does not do so then there is a serious costs risk.
In these cases the defendant had written to the Plaintiffs telling them that they believed the correct Court for the case was the Circuit Court and they would seek a differential costs order under under s. 17(5) of the Act of 1981 if the Plaintiff succeeded with his claim.
Has the danger passed? Are you just keeping the head down and hoping for the best?
Are you in a good place with respect to compliance or do you still have some concerns but hope the fears generated were exaggerated?
Just to remind you new regulations concerning personal data protection came into force in the EU from 25th May, 2015: the GDPR regulations.
What has happened since then? Was the fear and loathing justified? Was it another “Y2K” scare-all hat and no cattle-or is it too early to decide?
Firstly, GDPR came into effect in Ireland 24 hours after the commencement of a new data protection act, the Data Protection Act, 2018. There is a certain degree of trepidation amongst data controllers and processors that this new law will lead to a significant increase in the number of legal cases arising as a result of breaches for the law now allows data subjects bring civil actions for compensation.
Collective Actions
Data subjects can also now authorise not for profit organisations to bring complaints and act on their behalf. This kind of “class” action is a new development in Ireland and is likely to be availed of when there is a significant breach of personal data on a wide scale affecting a large number of individuals.
Two of these not for profit type organisations, NOYB (‘None of Your Business’) in Austria and La Quadrature du Net (‘La Quad’) filed complaints in some European countries against large tech companies within a short time of GDPR coming into effect. There is nothing stopping them from popping up in Ireland.
Right to Compensation and Damage
The right to compensation and damage is set out in regulation 82 which states,
Right to compensation and liability
1. Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.
2. Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.
3. A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.
4. Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.
5. Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2.
6. Court proceedings for exercising the right to receive compensation shall be brought before the courts competent under the law of the Member State referred to in Article 79(2).
The game changer in this regulations is the reference in subsection 1 to “material or non-material damage”.
Up to this point you had to show you had suffered actual loss or damage in Ireland to be compensated, but you could not be compensated for non-material damage.
You will also see that subsection 1 refers to “controller or processor”. Prior to this only the controller could be held liable but now a processor can be also named as a defendant.
Article 78 sets out the right of the data subject to sue-that is, a judicial remedy. It states,
Article 78
Right to an effective judicial remedy against a supervisory authority
1. Without prejudice to any other administrative or non-judicial remedy, each natural or legal person shall have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.
2. Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to a an effective judicial remedy where the supervisory authority which is competent pursuant to Articles 55 and 56 does not handle a complaint or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 77.
3. Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.
4. Where proceedings are brought against a decision of a supervisory authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.
This right to bring a data protection action in Ireland is set out in section 117 of Data Protection act, 2018. This action is founded on tort-that is, a civil wrong, and can be instituted in the Circuit Court or High Court.
Section 117 obliges the plaintiff data subject to prove that
his or her rights under a relevant enactment have been infringed as a result of the processing of his or her personal data in a manner that fails to comply with a relevant enactment
The critical change now is a data subject can sue for material and non material damage and non material damage is set out in recital 85 as follows:
A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned
You will see from regulation 82 above, section 2, that the controller and processor will be held liable where they are not compliant with the regulations; it is irrelevant whether they were negligent or at fault in any way.
How much compensation?
It is too early to say what level of compensation Irish courts will award, especially for non material damage such as damage to reputation or unauthorised reversal of pseudonymisation or loss of confidentiality.
Clearly, from the perspective of a controller or processor the smart thing to do is try to ensure that there is no breach of personal data rights in the first place. However, it is vital that a breach is notified to the Data Protection Commissioner within 72 hours of becoming aware of the breach as the Act refers to doing so “without undue delay”.
85. Where a processor becomes aware of a personal data breach, the processor shall notify the controller on whose behalf the data are being processed of the breach—
