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.

The Swing Fall Case-Maria Bailey Still Doesn’t Get It

Maria Bailey, the Fine Gael TD who fell off a swing in a Dublin hotel, the Dean, and brought a personal injury action as a consequence still doesn’t get it, I fear.

For in an exclusive interview with the Sunday Independent today she said,

“I was holding somebody’s bottle. The bottom line is I was injured, nobody was drunk, nobody was messing. We had one glass of wine before going out and we had just one glass at the hotel. I was seriously hurt and I was mortified”.

She appears to lack understanding that the fact of her being injured is not the bottom line. It is only one factor in a successful personal injury claim.

An equally important hurdle to clear to win such a case is to prove somebody else was negligent and that negligence caused the accident and the consequential injuries and loss.

Plaintiffs regularly lose personal injury claims even if they have suffered injuries if the injuries are caused by a mere unfortunate accident where nobody is negligent.

She also says, “I am a citizen and I am entitled to the same due process in law as everybody else.”

Yes, she certainly is entitled to due process, and that involves her proving a certain number of things in a successful personal injury action:

  1. Was there a duty of care owed by the defendant hotel to the plaintiff? Yes, absolutely because the hotel owes a duty of care to its patrons, customers and anyone who is proximate;
  2. Did the defendant discharge that duty of care by acting as a reasonable person would in discharging their duty of care? This was a problem for Ms Bailey’s case;
  3. Did the plaintiff suffer damage, and was that damage/injury foreseeable? Maria Bailey TD tells us she did suffer an injury and this would be easily proven with a medical report and records;
  4. Was there causation-that is, a sufficiently close connection between the conduct of the defendant and the loss suffered by the plaintiff?

A cursory look at these 4 factors that need to be present to win her case would leave you in no doubt that the difficult part of her case would have been to prove the hotel failed to discharge their duty of care and was, as a consequence, negligent.

If the hotel is held to be negligent, the hotel is liable for the losses that flow.

So, how was Maria Bailey to prove the hotel was negligent when it came to her falling off the swing? I have not seen the pleadings or the particulars in this case and am relying on what has been reported in the media.

What has been reported in the media is that Ms Bailey was holding something in each of her hands which would have prevented her from holding on to the swing when she mounted.

What has also been reported is that the acts of negligence alleged by Ms Bailey against the hotel was the hotel’s failure to provide a supervisor for the operation of the swing.

Appalling Vista

This is a proposition which, if successful, would have appalling consequences up and down the country for anybody providing a swing for the enjoyment of children.

Lord Denning said when upholding the appeal of the West Midlands Police in a case brought by the Birmingham Six it would be an “appalling vista” for the English legal system to hold that the police officers had lied as argued by the Birmingham Six.

The notion of playground operators having to provide supervision for the operation of their swings takes removal of personal responsibility from the individual to a type of Kafkaesque state. This is an equally appalling vista, in my view.

What next? Supervisors for the operation of slides? Water slides? Bouncy castles?

Claim dropped

Maria Bailey TD has instructed her solicitor to drop her claim and she has insisted she has done nothing wrong.

Unfortunately, we will not now see how her obligation to prove negligence against the hotel would have got on, nor the proposition that the hotel should have had a supervisor to supervise the operation of a swing on their premises.

Ms Baily tells us

“I have a vision and I want to keep my focus on that.”

Hopefully that vision includes putting her shoulder to the wheel in her party’s avowed intention to tackle the cost of personal injuries payouts and spiralling insurance costs for businesses.

Conclusion

Nobody denies Ms Bailey’s right to bring a personal injury claim, she’s perfectly entitled to do so.

To win her case, however, she needed to prove negligence by the hotel which led to her fall and injuries. It would have been interesting to see how that would have been dealt with by the Court.

Learn more about personal injury law in Ireland.

Personal Injury Claims Changes from Jan & April 2019

Some changes have been made to the way in which personal injury claims are to be pursued in Ireland; some of the changes commenced in January 2019, others from April 2019.

Let’s take a look.

Section 8 of the Civil Liability and Courts Act 2004 provides that a letter of claim must be served within 2 months of the date of the cause of action. From January 2019 this has been reduced to 1 month.

The amended section 8 also states that the court hearing the action shall draw such inferences as appear proper from the failure to serve the letter; it was the case that the court “may” draw such inferences.

Here is the amended section 8:

Letter of claim.

8.—(1) Where a plaintiff in a personal injuries action fails, without reasonable cause, to serve a notice in writing, before the expiration of F1 [ one month from the date of the cause of action, ] on the wrongdoer or alleged wrongdoer stating the nature of the wrong alleged to have been committed by him or her, F1 [ the court hearing the action shall ]

( a) draw such inferences from the failure as appear proper, and

( b) where the interests of justice so require—

(i) make no order as to the payment of costs to the plaintiff, or

(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate.

(2) In this section “date of the cause of action” means—

( a) the date of accrual of the cause of action, or

( b) the date of knowledge, as respects the cause of action concerned, of the person against whom the wrong was committed or alleged to have been committed, whichever occurs later.

Verifying affidavit

Section 14 of the Civil Liability and Courts Act 2004 provides for a verifying affidavit. This section is changed as follows:

 (4A) Where there is a failure to comply with subsection (4) , the court hearing the personal injuries action concerned shall—

(a) draw such inferences from the failure as appear proper, and

(b) where the interests of justice so require —

(i) make no order as to the payment of costs to the party responsible for the failure, or

(ii) deduct such amount from the costs that would, but for this subsection, be payable to the party responsible for the failure as it considers appropriate. ]

These changes came into effect from 28th January 2019.

Personal Injuries Assessment Board (Amendment) Act 2019

This act commenced on 3rd April 2019. Some of the “highlights” include:

  • Section 51C provides that the Court may penalise claimants and respondents as to costs where they have not complied with a request made by the PIAB assessors for additional information or documents; to provide assistance to experts retained by the PIAB or furnish information or documents or co-operate with those experts; or for the claimant to submit himself or herself to a medical examination.
  • A medical report is not now necessary with the application to the Injuries Board to stop the clock from running for the Statute of Limitations; submitting form A is sufficient and PIAB will serve a preliminary notice on the respondent but will not serve the formal section 13 notice and commence the 90 day period until a medical report is received.

Here is the Personal Injuries Assessment Board (Amendment) Act 2019 in full.

Woman Walks Into Lift Door at Work and Sues Her Employer for Personal Injuries

differential costs order

This personal injuries case involves a woman who worked in Abbott Ireland in Clonmel since 1999 and who injured her head as she entered a lift at her workplace in 2014. She was speaking with a colleague as she entered a lift and was looking away from the lift doors towards her colleague.

The woman, Geraldine O’Grady, gave evidence that she expected the lift sensor to prevent the door from closing on her and that she had previously heard a voice over would give a warning that the doors were closing. She was struck on the head by a lift door and suffered a haemotoma (a localized bleeding outside of blood vessels).

Ms O’Grady went on holidays shortly after this incident and suffered headaches and had bruising on her face. When she went back to work she suffered from loss of concentration and headaches.

She also claimed to have suffered from post-concussion syndrome, post-traumatic stress, flashbacks, feared she was going to die, and her confidence was affected.

High Court personal injuries action

Ms O’Grady brought High Court personal injury proceedings claiming the employer was negligent, had failed to provide a safe place of work, had failed to provide a safe system of work, had breached health and safety regulations, and breached the contract of employment.

She claimed the employer was negligent by reason of its failure to have the lift emit a sound when the doors were closing, the lift doors were an excessive width, and so forth.

Justice Creedon’s decision

Justice Creedon found that only 40% of lifts nationwide are fitted with voice warnings. She also held:

“Beyond the home, doors are part of everyday life and automatic doors are no exception. They are commonplace in buildings of every nature. Automatic doors are encountered in every type of public building including hospitals, schools, courts and offices.”

She found the employer was not negligent and that Abbott was not in breach of the reasonably practicable test by reason of its failure to locate a sensor on the outer doors.

The Health Safety and Welfare at Work act 2005 provides that the employer must take whatever steps are ‘reasonably practicable’ for section 8 provides, inter alia,

8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees. (Section 8 Safety, Health and Welfare at Work Act, 2005).(Reading the full section 8 will give a good idea of the employer’s duties under this act).

In summary Justice Creedon held that the injuries sustained by Ms O’Grady were by reason of her own inadvertence and failure to pay attention when entering the lift.

Absolute duty on employers?

Justice Creedon rejected the argument that there was an absolute duty on employers to ensure the safety of employees and referred to section 8 (1) (set out above) referring to the employer’s duty to ‘ensure, so far as is reasonably practicable’ the safety of employees.

She also pointed to the employee’s obligations for her own safety set out in section 13 of the Safety, Health and Welfare at Work Act, 2005.

This case is Geraldine O’Grady –v- Abbott Ireland [2019] IEHC 79.

Awards for Whiplash Injuries in Ireland 4.4 Times Higher Than England and Wales-New Report

whiplash claims ireland

It is often claimed that the level of awards in personal injuries claims in Ireland is laughable and out of step with the rest of the developed world. A ‘compo culture’ is a phrase that is regularly thrown around but is there any truth in this?

A new report form the Personal Injuries Assessment Board (PIAB) which gives the data for the first six months of 2018 certainly supports this view. It tells us that the level of award in Ireland is 4.4 times that of awards for similar injuries in England and Wales.

For the first 6 months of 2018 the average award in Ireland for a whiplash type injury for the driver of a car in a car accident was €20,800 which breaks down to a figure of €19,066 for the injury itself-that is, general damages-and €1,734 for special damages-that is, out of pocket expenses.

Interestingly female victims were awarded a little more than males.

A whiplash type injury is one that involves soft tissue injuries to the neck, upper back, shoulders, and strains/sprains of the spine.

The figure for non-whiplash injuries for the first 6 months was €27,386; this would include more serious injuries than whiplash-for example, fractures, sprains, and so forth.

The report from PIAB also shows that 70% of claims in car accident claims for the same period were whiplash related.

It is hard to understand why Irish victims of these types of injuries enjoy one of the highest rates of compensation in Europe and 4.4 times that of England and Wales.

A former President of the High Court, however, has warned that the system in Ireland is open to abuse because the chances of a fraudulent claimant being prosecuted for making a false or exaggerated claim was “virtually zero”.

Meanwhile, we are all financing this system with higher insurance premiums virtually every year we renew our motor insurance policy.

Learn more about personal injury claims in Ireland, how awards are assessed, court proceedings, what are general damages, special damages, how does the Injuries Board work, and more.