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
Personal Injury Claims

5 Questions You Will Need to Answer in a Personal Injury Action

personal injury claim1

If you are thinking about bringing a personal injury action against someone who has caused you injury or damage you will have to be clear as a bell from the outset about a number of issues.

Let’s take a look at them.

  1. How the accident occurred

You will need to be able to explain in clear, plain language what actually happened. The insurance company for the person you are claiming against will ask you this at the outset, and it will be required for your personal injury summons, and later on in Court if it goes that far.

2. What were the acts of negligence that you allege?

To win your case you will need to prove that it was not your own fault or an act of God or just “one of those things”; you will have to prove the other party, the one you are holding liable, was negligent. Legal negligence is different from what you may understand the word negligence to mean in its ordinary, everyday use.

To prove legal negligence sufficient to win your case you will need to prove:

  1. The person you hold liable had a duty of care to you
  2. The person failed to discharge his duty of care-that is, he failed to act as a “reasonable person” would have acted in the circumstances
  3. You suffered loss and/or damage
  4. The person you hold liable caused this loss/damage by their actions.

3. Who did you report the accident to?

4. Was there any witnesses? If so, who were they?

5. What are your injuries?

This will only arise if you are claiming damages for a personal injury; sometimes you may be lucky and only suffer material damage and financial loss, but no personal injury.

You will need a medical report to prove your injuries; later on, depending on the nature of your injury you may need a specialist medical report, particularly if the case is going to Court.

Conclusion

It will be useful, therefore, to make a comprehensive note at the time the accident occurs as it may prove extremely useful later on, especially if you are suffering from shock. You can make a written note or even an audio recording on your phone.

This may allow you later on to fill in any blanks in your recollection of events, how the accident occurred, and so on. A written note of witnesses and any other relevant facts will also prove useful.

The 5 questions above do not only apply to accidents or motor crashes; they apply to any claim where you are alleging you have suffered an injury as a result of the negligence of another.

This could easily occur in the workplace, for example. You may be thinking about making a claim against your employer for a tort (civil wrong) arising from an injury you have suffered in the workplace as a result of bullying, harassment, or a stress related injury.

Honestly answering the 5 questions above might help identify weaknesses in your case and give you a good idea of whether you have a reasonable chance of success or not.

Categories
Litigation Negligence

Proof of Negligence-How to Prove Negligence in Irish Civil Law

 

negligence law ireland

If you bring an action for negligence in Ireland, you must prove the defendant was negligent.

The standard of proof is on the balance of probabilities, which is the standard of proof in civil law cases. (The standard of proof in criminal cases is beyond a reasonable doubt).

Essentially, you must establish facts from which negligence can be inferred.

This does not mean you must prove or show how the accident occurred; simply because an event was not foreseen does not mean it cannot be reasonably inferred.

But you must show on the balance of probabilities that the defendant was guilty of negligent conduct which caused the accident.

There is also a principle in the law dealing with negligence-res ipsa loquitur.

Res Ipsa Loquitur

Res ipsa loquitur means “the thing speaks for itself”. There are some cases, where the thing speaks for itself and where there may be no other evidence to prove negligence.

But a presumption of negligence can arise from the fact of an accident. An example would be the case from which this phrase emanates-it involved a barrel of flour falling out the first floor window of a shop and hitting the plaintiff on the head.

The defendant shopowner claimed that there was no evidence of negligence, unless the act itself was evidence of negligence. The Court of Appeal in this case recognised that res ipsa loquitur was appropriate in some cases, and this was one of them.

When will this principle apply?

  1. When “the thing” is under the control of the defendant
  2. When the accident would not have occurred if the defendant who controlled “the thing” used reasonable care

This principle will not apply when there is an explanation of how the accident or event occurred.

If the principle applies in your case it will be up to the defendant to avoid liability by showing that the cause of the accident cannot be attributed to his negligence.

The Supreme Court decision in Hanrahan v Merck Sharp & Dohme (Ireland) limited held:

“in the tort of negligence, where damage has been caused to the plaintiff in circumstances in which such damage would not usually be caused without negligence on the part of the defendant, the rule of res ipsa loquitur will allow the act relied on to be evidence of negligence in the absence of proof by the defendant that it occurred without want of due care on his part”.

Conclusion

Assuming your case has the four essential elements of the tort of negligence you will still need to prove negligence to win your case.

Categories
Debt Problems | Bankruptcy District Court Litigation

How to Begin Civil Proceedings in the District Court

district-court-legal-proceedings

The District Court now has a jurisdictional limit of €15,000.

So, if you need to pursue a debt or a claim for damages for breach of contract, negligence, or on any ground for less than €15,000 you will commence proceedings in the District Court.

To do this, you file, for issue and service, a claim notice in the District Court.

What Must You Put in the Claim Notice?

A claim notice must—

(a) state the full name and address of the claimant and an address for service of documents on the claimant; and

(b) if the claimant sues in person, state an address for service of documents on the claimant; and

(c) if the claimant sues or the respondent is sued in a representative capacity, state the capacity in which the claimant sues or the respondent is sued in a representative capacity; and

(d) state the name and address of the respondent; and

(e) if the claimant sues by a solicitor, state the name or firm and business address of the solicitor and also, if the solicitor is the agent of another, the name or firm and business address of the principal.

A claim notice must contain a statement of claim which must—

(a) contain, in a summary form, a statement of all material facts on which the claimant relies, but not evidence by which those facts are to be proved;

(b) contain the necessary particulars of every fact;

(c) if the claim arises by or under any enactment, identify the specific provision of the enactment that is relied on;

(d) state specifically the amount or other relief or remedy sought; (e) state the place where and the date when the claim arose.

A statement of claim in a debt claim must state that the claim is for debt or liquidated damages, must specify the amount claimed by way of debt or liquidated damages and must include particulars of the claimant’s demand for payment.

Where the claim is founded on any written document, the statement of claim must state the date of the document and the parties to the document and:

(a) if the claim is for the payment of money, the amount claimed, or

(b) if the claim is for breach of contract, the alleged breach or breaches of the contract.

A statement of claim must contain a list of all correspondence and other documents on which the claimant will rely at the trial including the date if any and a brief description of each document.

In a debt claim, the claim notice must be indorsed with a statement as follows—

“If you pay the amount of €…… and costs of €……. to the claimant or the claimant’s solicitor within ten days and without filing and serving an appearance and defence you may avoid further costs.”.

If a claim notice is indorsed  as set out in the preceding paragraph, and the respondent pays the amounts claimed within the time limited for filing and serving an appearance and defence, then the civil proceeding is concluded.

Any claim by a consumer for damages under section 74 of the Consumer Protection Act 2007 (No. 19 of 2007) must be commenced by the issue and service in accordance with this Order of a claim notice, entitled in the matter of section 74 of the Consumer Protection Act 2007 and otherwise in the Form 40.01, Schedule C with such modifications as are appropriate.

 

Where Do You Commence Proceedings?

A claim notice must be filed with and issued by the Clerk for the Court area:

(a) in which the respondent or one of the respondents ordinarily resides or carries on any profession, business or occupation,

or at the election of the claimant,

(b) in proceedings founded on contract, (except proceedings arising from an agreement under the Consumer Credit Act 1995 or the European Communities (Consumer Credit Agreements) Regulations 2010 (S.I. 281 of 2010)) in which the contract is alleged to have been made, or

(c) in proceedings founded on tort, in which the tort is alleged to have been committed, or

(d) in ejectment proceedings, in which the lands the subject of the proceedings are situated.

Unless the Claim Notice is to be served outside the State a claim notice must be in Form 40.01, Schedule C, or in Form 40.02, Schedule C in a debt claim.

Appearance and defence

A respondent who intends to defend civil proceedings must give, or send by post, to the claimant or solicitor for the claimant an appearance and defence, in the Form 42.01, Schedule C, not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence must—

(a) contain a statement that the respondent intends to defend the claim notice; and

(b) state the name and address of the respondent and an address for service in the European Union at which documents required to be served on the respondent may be left; and

(c) if the respondent defends by a solicitor, state the name or firm and business address within the European Union of the solicitor and also, if the solicitor is an agent of another, the name or firm and business address of the principal.

Appearance and defence to debt claim

An appearance and defence in a debt claim must be in Form 42.03, Schedule C. A respondent who intends to defend a debt claim must give, or send by post, to the claimant or solicitor for the claimant his or her appearance and defence not later than 28 days after the service on him or her of the claim notice, and must at the same time file a copy of his or her appearance with the Clerk.

A defence in a debt claim must state whether the claim is:

(a) disputed as to both liability and amount;

(b) disputed only as to amount and if so, what amount is admitted to be due;

(c) admitted in full and if so, whether the respondent proposes to pay immediately or requires time for payment.

Appearance and defence in claims other than debt claims

Unless the respondent requires further particulars of statement of claim, a respondent to a claim other than a debt claim who contests or disputes all or part of a claimant’s claim must serve an appearance and defence in Form 42.01, Schedule C on the claimant at the address for service stated in the claim notice and must file a copy of the appearance with the Clerk.

A defence must state which of the facts stated in statement of claim are—

(a) admitted;

(b) denied;

(c) not admitted.

A respondent who, in the defence, does not state whether a fact stated in statement of claim is—

(a) admitted;

(b) denied;

(c) not admitted—

must be taken to admit the fact.

A respondent who states that a fact stated in statement of claim is denied must—

(a) give reasons for denying the fact; and

(b) if the respondent intends to prove a fact different from that stated in the statement of claim, state, with necessary particulars, the fact that the respondent intends to prove.

The respondent must state specifically, with particulars, any fact or matter which—

(a) makes the claim of the claimant not maintainable; or

(b) if not stated specifically, might take the claimant by surprise; or

(c) raises questions of fact not arising out of the statement of claim. (6) If the defence arises by or under any enactment, the defence must identify the specific provision relied on.

A defence must contain a list of all correspondence and other documents (other than any documents already identified in the statement of claim) on which the respondent will rely at the trial including the date if any and a brief description of each document.

The respondent may not rely on the defence of tender unless, within seven days after filing an appearance and defence, the respondent pays to the Clerk the amount alleged to have been tendered.

A respondent who has entered an appearance and defence in a debt claim which complies with the requirements of the rule above is not required to serve and file a defence which complies with the requirements of this rule unless an order has been made in the application for judgment on affidavit refusing judgment and giving permission to defend, in which case, the respondent must serve and file a defence which complies with the requirements of this rule within 21 days after the order is made.

Late filing and service of appearance and defence

A respondent may serve an appearance and defence and file an appearance at any time after the service of a claim notice with the written consent of the claimant, but an appearance and defence may not be served, except by permission of the Court, if the claimant has obtained judgment in default of appearance.

NOTICE REQUIRING COPY DOCUMENTS OR FURTHER PARTICULARS

This does not apply to debt claims.

A respondent may at any time before or at the time of delivery of a defence apply to the claimant in writing:

(a) for copies of all or any of the documents listed in the statement of claim on which the claimant relies or referred to in the statement of claim (Form 42.06, Schedule C);

(b) requiring the claimant to provide further particulars which the respondent asserts are reasonably necessary as to specified matters in the statement of claim (Form 42.07, Schedule C).

A claimant may within 28 days after delivery of a defence apply to the respondent in writing:

(a) for copies of all or any of the documents listed in the defence on which the respondent relies or referred to in the defence (Form 42.06, Schedule C);

(b) requiring the respondent to provide further particulars which the claimant asserts are reasonably necessary (Form 42.07, Schedule C).

COUNTERCLAIM

A respondent may set off or set up any right or claim the respondent alleges he or she has against the claimant as a counterclaim against the claim of the claimant, whether the respondent’s claim is a claim in damages or not.

A set off or counterclaim has the same effect as a cross action, so as to enable the Court to determine both the claim and the counterclaim at the same trial.

A counterclaim must be in Form 42.08, Schedule C.

STAY OR DISMISSAL OF CLAIM AND STRIKING OUT STATEMENT OF CLAIM OR DEFENCE

The Court may at any stage of the civil proceedings order to be struck out or amended any matter in any pleading which is unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the civil proceedings.

The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the claim or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the claim to be stayed or dismissed, or judgement to be entered accordingly, as the Court considers just.

What to Do Now

Sometimes, especially in debt collection matters, a solicitor’s letter to a debtor may have the desired effect and eliminate the need to bring proceedings in Court.

If you need a solicitor to handle things for you contact us.

Categories
Litigation

Time Limits in Civil Litigation and the Statute of Limitations

time-limit-civil-litigation

The time limits within which you can bring a civil action in Ireland are set out in the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Acts, 1991 and 2000.

However, other limitation periods are set out in the Civil Liability Act, 1961, the Liability for Defective Products Act 1991 and the Civil Liability and Courts Act 2004.

If an action is not commenced within the limitation period, it will become statute barred and the defendant will have a good defence to the claim.

In general, when calculating the time period, it commences on the date that the cause of action occurred. However, there are exceptions eg if the plaintiff is under a disability, where the defendant is deceased, where claims have to be submitted to the Injuries Board in the first instance and in certain personal injury actions where the plaintiff only discovers at a later date that they have a cause of action.

Actions in Tort

A tort is a civil wrong. Generally, the limitation period for bringing such an action is 6 years.

However some torts such as negligence, nuisance or breach of duty and involving personal injury or an action for slander have different limitation periods.

Actions for Personal Injury Based on Negligence, Nuisance or Breach of Duty

Actions in this category must be brought within 2 years of

a)      The date on which the cause of action accrued or

b)      The date on which the Plaintiff first had knowledge of the injury, that the injury was significant, and the identity of the defendant.

When the plaintiff had the requisite knowledge as defined in section 2 of the Statue of Limitations (Amendment) Act 1991:

2.(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person’s date of knowledge are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,
(d) the identity of the defendant, and
(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section, a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
(3) Notwithstanding subsection (2) of this section—
(a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and
(b) a person injured shall not be fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury.

Fatal Injury Actions

Actions for fatal injury claims must be brought within 2 years of the date of death.

Assault

An action for trespass to the person or assault and battery must be brought within 6 years of the accrual of the cause of action.

Defamation

An action for defamation (including libel and slander) can be brought within one year as set out in the Defamation Act, 2009. There is a possibility of having this extended to two years on application to Court.

Contract

Actions founded on contract or quasi-contract must be brought within 6 years of the breach of contract

1.1 Debts

Actions for the recovery of debts (liquidated sums) are based on contract and actions can be brought within 6 years of when the sum became due.

However, this can be changed if the debtor acknowledges the debt after it becomes due or he makes a part payment. The right of action in these circumstances will be deemed to have accrued on the date of acknowledgement of the debt or on the date of part payment.

This applies regardless of whether the statutory period has expired or not.

1.2 Defective Motor Vehicles

Claims for defective motor vehicles must be brought within 2 years of the date on which the cause of action accrued.

Defective Products

Actions for defective products must be brought within 3 years of either

a)      The date of accrual of the cause of action or

b)      The date on which you had knowledge of the defect, damage, and producer of the product.

Recovery of Land

Actions for the recovery of land must be brought within 12 years from the accrual of the right of action.

Actions against the Estate of a Deceased Person

These must be brought within 2 years of the death of the deceased person unless the proceedings were commenced within the relevant statutory period and were pending at the date of death.

When does time begin to run?

The limitation period begins to run from the date of accrual of the cause of action.

Extension of the Limitation Period

Calculating the limitation period can be altered in certain limited circumstances eg

  • Fraud of the defendant-time begins to run when the fraud is discovered or when it could have been discovered with reasonable diligence
  • Mistake
  • Where the plaintiff is under a disability.

A person is under a disability according to the Statute of Limitations, 1957 when they are

1)      A minor

2)      A person of unsound mind

3)      A convict subject to the Forfeiture Act, 1870.

This definition was expanded by the Statute of Limitations (Amendment) Act 2000 to cover victims of sexual abuse.

A person under a disability can bring an action within the prescribed period of ceasing to be under the disability.

Personal Injury Assessment Board Act, 2003

A claim for personal injuries or a fatal injuries claim needs to be first made to the Injuries Board.

Once an application is acknowledged by the Injuries Board the limitation period stops running; but it recommences six months from the date of a letter of authorisation from the Injuries Board.

When Does Time Stop Running?

Time stops running when legal proceedings have been instituted.

This will depend on which Court you commence proceedings in.

District Court: when a Civil Summons has been sent by post to the Defendant or sent to a Summons Server

Circuit Court: when a Civil Bill or Personal Injuries Summons is issued

High Court: when the summons is issued out of the central office of the High Court.

If you think that you have a cause of action for a wrong done to you, it is essential that you see a solicitor as soon as possible so that any action taken is not ‘statute barred’ and is taken within the time prescribed under the law.

Dismissal for delay or want of prosecution

A court can dismiss proceedings if they are not resolved withing a reasonable time. The Master of the High Court can make an order to dismiss an action with costs for want of prosecution. This can also occur if there has not been a proceeding for 2 years since the last proceeding or where the plaintiff fails to attend for trial.

The Courts can also dismiss a claim for delay or want of prosecution where the interests of justice require it.

Defence of Statute Barred

It’s worth noting that a plaintiff reserves the right to bring legal proceedings even if they are statute barred and out of time. The defendant must plead the statute of Limitations as a defence in these circumstances, or the Court cannot consider whether the case is out of time or not.

It can also occur that the Defendant can be estopped from pleading the statute of Limitations if the defendant or his agent lead the plaintiff, through conduct or words, to believe it would not be pleaded.