Categories
Negligence Personal Injury Claims

Trends in Personal Injury Law in Ireland in 2019

There has been a vigorous debate in Ireland over the last 12 months or so about insurance, the cost of insurance, personal injury claims, bogus claims, excessive awards from the Courts, small businesses struggling to afford rising insurance premiums, and so on.

The Courts appear to be showing a greater enthusiasm to scrutinise personal injury cases. For example the awards made by the High Court in 2018 were down by 29%, according to the Courts Service annual report for 2018.

Having said that Circuit Court awards for the same time period-2018-increased from an average of €18,488 to €19,304 and the PIAB report for the first 6 months of 2018 showed a level of award which was 4.4 times that of awards for similar injuries in England and Wales.

In 2019 the Courts appear to have shown a greater awareness of the plaintiff’s responsibility for his own safety. For example, in Reilly v Mangan [2019] IEHC 91, the plaintiff was held responsible for his own injuries when he was injured by a taxi who drove over his ankle when he had been drunk and involved in a fight on a busy street.

The Court of Appeal dismissed the Plaintiff’s claim in White v Doherty & Anor [2019] IECA 295. The plaintiff had suffered a trip and fall injury in a caravan park but the High Court and Court of Appeal both found that users would be expected to take care in such a park for loose or embedded stones. 

In Keegan v Sligo County Council [2019] IECA 245 the Court of Appeal sent the case back to the High Court because the High Court had not had regard for whether the plaintiff’s alcohol consumption was a factor in his accident.

In Greene v Dunnes Stores [2019] IECA 115 and Kevin Keegan (Amended by the Order of the Court to Kevin Duke) v Dunnes Stores the Court of Appeal held that employees have responsibilities for their own welfare and safety. In the Greene case the Court of Appeal upheld Dunnes Stores appeal and held that the employer did not have an absolute duty to ensure the safety of the worker and dismissed the claim.

The Court in McCarthy v Twomey [2019] IEHC 719 accepted that the defendant had been in breach of his statutory duty to the plaintiff in failing to appoint a project supervisor and failing to have a health and safety plan for work on site. However, the court also held that that breach did not cause the accident of the plaintiff.

Takeaway

  1. The Plaintiff needs to prove negligence in a personal injury case, not merely that he has suffered an injury and Courts appear to be taken a firmer line in ensuring the Plaintiff discharges this burden of proof.
  2. An employer does not have an absolute duty to ensure the safety of the worker and the spectre of “strict liability” is not accepted by the Courts.
Categories
Negligence Personal Injury Claims

No Expert Opinion? Your Claim for Professional Negligence is Bound to Fail

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.

Categories
Litigation Negligence

GP Defends Professional Negligence Claim About Breast Cancer Diagnosis in High Court

differential costs order

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:

  1. Should Dr. Donlon have insisted more strongly that Ms. Rossiter attend for a breast examination when it was declined?
  2. 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.

Read the full decision here: Rossiter v Donlon [2019] IEHC 105

Categories
Defamation Litigation Negligence Personal Injury Claims

The High Court Affidavit of Verification In Personal Injury and Defamation Actions

affidavit of verification

An affidavit of verification is required in the High Court to verify assertions or facts alleged in personal injury actions and defamation proceedings. It is to verify a pleading or replies to a request for further information and is required pursuant to section 14 of the Civil Liability and Courts Act, 2004 in personal injury actions, and pursuant to section 8 of Defamation Act, 2009.

A copy is served on the party who is being served with the pleading or replies to further information.

(4) An affidavit under this section shall be lodged in court not later than—

(a) 21 days after the service of the pleading concerned or such longer period as the court may direct or the parties may agree, or

(b) in the case of a requirement to which subsection (8)(b) applies, 7 days before the date fixed for the trial of the personal injuries action concerned. (Section 14 Civil Liability and Courts Act 2004).

The form it should take is as follows:

AFFIDAVIT OF VERIFICATION

O. 1A, r. 10

THE HIGH COURT

20…. No……
Between A.B., …………….. Plaintiff,

and C.D., …………. Defendant.

I, AB, ……………….. of …………………. , the (plaintiff, defendant or state other capacity or authority) in the above-entitled proceedings, aged eighteen years and upwards MAKE OATH and say as follows:

1. I beg to refer to the contents of the (personal injuries summons, defence, reply, further information etc. – as the case may be) delivered herein on behalf of the (plaintiff/ defendant) on the ….. day of ………….. 20 …. *[upon which this affidavit is endorsed] *[and upon a true copy of which marked “A” I have signed my name prior to the swearing hereof].

2. The assertions, allegations and information contained in the said (personal injuries summons, etc.) which are within my own knowledge are true. I honestly believe that the assertions, allegations and information contained in the said (personal injuries summons, etc.) which are not within my own knowledge are true.

3. I am aware that it is an offence to make a statement in this affidavit that is false or misleading in any material respect and that I know to be false or misleading.

SWORN etc

It is an offence to make a statement in an affidavit that is false or misleading and you can be fined up to €100,000 and/or imprisoned for up to 10 years, pursuant to section 29 of the Civil Liability and Courts Act, 2004.

Circuit Court and District Court

An affidavit of verification is also required in personal injury claims in the District Court and Circuit Court.

Categories
Litigation Negligence

Liability for Injuries Caused by Animals-What You Should Know

animals damage law

The rules which relate to liability for damage or injury caused by animals fall into two categories:

  1. Special rules, providing for strict liability
  2. General rules in accordance with the principles of tort.

Liability Under the General Rules of Tort

Under the general rules of tort liability can arise under a number of headings:

  1. Negligence-the usual rules of negligence will apply
  2. Nuisance
  3. Trespass, and there is a distinction between general rules in relation to trespass and special rules of cattle trespass. Liability under cattle trespass is strict liability whereas other types of trespass may require negligence or intention on behalf of the cattle owner.
  4. Occupier’s Liability-liability may also arise under the Occupiers’ Liability Act, 1995.

Special Rules

One of the special rules concerning animals draws a distinction between wild animals and domestic animals.

The owner of a wild animal is strictly liable for any damage caused by that animal. This is the scienter principle.

The owner of a tame, domestic animal on the other hand will only be held liable if he is aware of a “mischievous propensity” in the animal to do damage that ultimately is complained of. It does not matter how the owner knows of this malicious tendency.

This mischievous propensity must be “a vicious, mischievous or fierce tendency”.

A defence in a scienter action will be the contributory negligence of the plaintiff, although this will only reduce the liability of the defendant.

Dogs

The Control of Dogs Act 1992 sets out the statutory position in Ireland with respect to liability of owners of doges for damage done. The Control of Dogs Act, 1986 is also relevant and section 21 of that act imposes strict liability for injuries caused by dogs to animals or persons. For strict liability to arise, however, in relation to a person there must have been an attack whereas there is strict liability in respect of damage done to livestock, with no need to show an attack took place.

A person will still have a cause of action under the scienter rule if he can show the dog had a mischievous propensity and the keeper of the dog knew this.

When a trespasser is injured by a dog the ordinary rules of negligence apply-this is not an incidence of strict liability (ref section 21(3), Control of Dogs Act, 1986).

The 1986 Act also provides remedies in the District Court for nuisance caused by barking dogs.

Cattle Trespass

Cattle which stray from their owner’s land onto another person’s property will give rise to their owner being held liable. This liability only arises when the cattle stray of their own accord.

“Cattle” includes horses, sheep, goats, pigs, assess, domestic fowl and deer.

Who is liable, however, the owner of the cattle or the owner of the land? It appears from decided cases that the person who has possession and control of the animals is liable, not the owner of the land or cattle.

The extent of the liability will be for damage done to land, crops, and animals.

Defences include

  • An act of God
  • The plaintiff’s own fault
  • Contributory negligence
  • The wrongful act of a third party.

Animals on the Road

The normal rules of negligence, discussed already, will apply. Section 2 of the Animals Act, 1985 abolished any immunity for liability in negligence. Strict liability does not apply, however, and to avoid liability a landowner needs to show that he took reasonable care in respect of fencing.

Horses in Urban Areas

The Control of Horses Act 1996 was introduced to deal with the problem of keeping horses in urban areas.