Irish society is suffering from serious failures on the executive side.

The Law Reform Commission, by contrast, is an Irish institution that is functioning well.

I have referred HERE to its proposal that Ireland implement a system for accommodating “class actions”.

An executive failure (whether in the executive proper or in the administration of the Courts) is all the less forgivable when a good workable proposal is advanced by the Commission and then ignored.

Undoubtedly the failure to have such a system caused considerable loss to the State in the “Army Deafness” cases.

The continuation of that failure is not, therefore, simply a hard-nosed conservative attitude of denial to personal injury claims (which it is), it is a fundamental failure of imagination, and ultimately, of management.

I do not intend to imply that class actions will arise solely in relation to personal injury claims. They will appear there; the pollution of the Galway drinking water supply is a case in point. With a system for making multi-party claims, the injured people of Galway would undoubtedly have made claims for those injuries. They could have done so individually; the fact that they appear not to have done so is some evidence that Ireland is not a litigious society.

Class actions will arise in consumer law cases. It would be wrong, to paraphrase Calvin Coolidge, to conclude that “the business of Ireland is business” and, as a non-sequitur, conclude that the interests of business are paramount over those of the Irish consumer.

How much should your doctor tell you?

Well, everything material, if you ask. And if you do not ask?

The doctor should inform you of the treatment it is proposed to apply to you and clearly inform you of any risks associated with that treatment. The presumed outcome of that will be an “informed consent”.

It is only with the consent of a patient that a surgical procedure, say, is rendered lawful. Without the consent it is an assault and battery and a particularly serious one at that.

A consent which is not informed is not a real consent.

The limitation on the duty of disclosure is the word “material”.

A doctor, even using an information sheet or publication, cannot be expected to inform every patient of everything relating to the proposed treatment. There would not be enough time in the world to achieve that objective.

Nevertheless, it is not enough for a doctor to say that he/she replied to the queries of the patient; in short that “informed” standard varies from patient to patient, depending on the inclination of the patient to ask questions.

In Geoghegan v Harris [2000], Kearns J stated;

Having regard to the heavy obligations imposed on medical practitioners by Walsh -v- Family Planning Services , it seems to me that any real consideration of the “inquisitive patient” is subsumed by the onerous obligations of disclosure set down by the Supreme Court. Current Irish law requires that the patient be informed of any material risk, whether he inquires or not, regardless of its infrequency.”

This is a deviation from what appears to be the UK approach, an approach obliquely queried by Sedley L. J. in Wyatt v Curtis [2003] EWCA Civ 1779 where he said;

…there is something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about”

Irish society is, to an extent, like a disorderly bus queue.* As little analysis as possible is done and even less is published, on social problems.

Metaphorically speaking, the bus service pretends the queue is not its concern and defines success by reference to the bus schedule, not the requirements of the public.

The extent of injury inflicted on hospital patients by clinical negligence is a case in point. We do not know what it is. When it happens the consequences are real. Somebody somewhere pays for the injury. Clearly, the victim suffers the injury and pays in that fashion. The family of the victim may pay in care deployed or care costs paid. Or, if the family consists of children of the victim, the children may suffer diminished life opportunities by being deprived of care they would have got from the victim.

Possibly it is a misnomer to label clinical negligence as a social problem; arguably, if it is not, public maladministration is a social problem.

In any event we must look elsewhere for estimates of the frequency and cost of such events.

In 1990 the Harvard Medical Practice Study estimated the incidence and causes of medical mishaps in New York hospitals.

Errors in management were found to be involved in the majority of mishaps. Drug complications were involved in 19%; wound infections in 14%; technical complications in 13%; surgery in 48% (of which only 17% were actual surgical errors); faulty diagnosis was involved in 75%; “errors of omission” were involved in 77%; events in the emergency room were involved in 70%.

The study covered a sample of 30,195 randomly selected hospital records. 1,133 patients (3.7 percent) were found to have suffered disabling injury caused by medical treatment.

In the UK, the NHS has produced a study entitled Handling Medical Negligence Claims in England.

While its approach is an administrative instrumental approach (a function frequently, inappropriately, assumed in Ireland by judges), it nevertheless makes a fair stab at measuring the problem.

One of the most interesting “macro” issues in the field is the issue of determining the true cost of the injury. In the case of catastrophic injuries (cerebral palsy and brain damage generally) the largest proportion of compensation is determined by the “special damage” – the cost of care.

There are serious and unresolved disputes on the calculation of these costs. Currently, only the legal profession is addressing that problem.

*(a disorderly queue is not a queue?)

The High Court has approved a €4 million settlement in the case of a 13 year old girl.

She suffers from cerebral palsy after the alleged mismanagement of her birth.

The proceedings were taken by Emma Duddy of Letterkenny, County Donegal, represented by McGarr Solicitors, against the North Western Health Board, the former owners of Letterkenny General Hospital and Mr. Davidson, the obstetrician. Her mother Adrienne acted as her “next friend”.

Her mother went into hospital in Letterkenny in 1995 for the birth of Emma. The court heard allegations that the labour and birth were mismanaged.

The defendant was sued for negligence and breach of duty, including statutory duty, which the Plaintiff said, through her parents Adrienne and John, led to her severe disability.

No admission of liability was made by the hospital or Mr. Davidson and the action against Mr. Davidson was struck out as part of the settlement.

I worry I have been sleeping on my rights.

It has been the practice of art galleries in Ireland to keep the very identity of purchasers secret from the artists that the gallery “represents”.

Now as a consequence of Directive 2001/84EC and The European Communities (Artist’s Resale Right) Regulations (SI 312 of 2006), we artists are entitled to information from the gallery which will enable us to enforce our claims for a percentage of any money generated on a resale of our work.

I must urgently write to my gallery for the names and addresses of my buyers.

(For reasons currently unknown to me I am unable to link to SI 312 of 2006 because Statutory Instruments for 2006 are missing from the website of the Attorney General and BAILII).

NOTE for naive artists; terms and conditions apply

I have previously warned of the need for vigilence in seeking indemnity cover from your own insurance company HERE.

Where you are the recipient of a claim, one way or another, you will find yourself, almost invariably, in litigation.

It is better that that litigation is only the proceedings taken against you. The alternative is that you find yourself in those proceedings and a new second set of proceedings in which you are the plaintiff and “your” erstwhile insurer is the defendant.

This can come about because your insurer declines to indemnify you for some alleged failure On your part as happened HERE.

Of course you could compound your difficulties yourself by failing to press your claim to indemnity in arbitration, as happened HERE.

The plaintiffs in these proceedings knew of a claim against them not later than 5th December, 2002. Their insurer knew of the claim prior to 20th March, 2003. It declined to indemnify. Only by letter dated 22nd December, 2005 did the plaintiffs attempt to refer the failure of the insurer to indemnify them to arbitration. In the letter the claimants’ solicitors informed the respondent that the claimants would be invoking the arbitration clause in the policy, nominated three persons who might act as arbitrator and enclosed a draft submission to arbitration.

Under the policy, the insured had one year to invoke the arbitration clause, whereupon the claim was deemed to have been abandoned. In the case the plaintiffs were very late.

The court extended the time to refer the matter to arbitration but subject to:

…the applicant will be responsible for the costs of this motion and will also be responsible for the costs of the arbitration even if successful therein.”

If you must shoot yourself, be sure to shoot yourself in the most painful part of your anatomy!

THE HIGH COURT
Record No: 840P/2005

BETWEEN:

SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants

And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (20th November 2008)

1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.

2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Mark Dunne BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.

3. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (“SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.

4. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.

5. The Minister, Ireland and the AG assert that these are “public law issues”. They assert that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They assert that, that being so, those claims of the defendants are late. They assert that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.

6. The defendants deny they are confined by the provisions of Order 84 and/or its “time limits”. They say that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They say, consequently, that the counterclaim should proceed to a full hearing on its merits.

7. Judgment has been reserved.

A Plaintiff in a personal injury action has the burden of proving that the negligence of the Defendant caused the Plaintiff’s injuries.

In a road traffic accident claim this burden may be easily borne or discharged; prove the circumstances of the accident and then the fact that the injuries were sustained in the accident.

In a medical negligence action, in order to fix the Defendant with responsibility, the Plaintiff may have to prove that his illness (his medical condition) was not the cause of his injuries.

In practice this may require the Plaintiff to prove, in detail, events which, in other circumstances, he would not be expected to address with such precision.

I have adverted to this previously as seen HERE and HERE.

Even if the injured Plaintiff was not “ill” (as in a maternity unit), the Defendant will be able to cite many natural processes to explain the Plaintiff’s injury. Consequently, the Plaintiff must explain away many things.

In short, in a medical negligence action the Plaintiff will not find many “facts” which are deemed self-evident.

The readers of this blog are self-selecting and would be very unlikely to mispronounce “crisps”, as in; “A packet of cheese and onion crips, please”.

However, they might say “…between you and I,…” and they would be wrong.

I am conscious of the need for sub-editors, but nowadays we have to be our own sub-editors. This post is intended to help with one particular issue, the use of “I” and “me”.

When you are the subject of a statement or sentence, you use “I”; when you are the object of a statement or sentence, you use “me”.

Find the verb and decide; is it acting on “you” or are “you” the person acting?

Here are some examples. The verb is “threaten”; who is doing the threatening and who is being threatened?:

“Brian Cowen threatened me” Correct. I am the object.

“Brian Cowen threatened I” . Incorrect. I am the object.

“I threatened Brian Cowen” . Correct. I am the subject.

“Me threatened Brian Cowen”. Incorrect. I am the subject.

“My wife and I threatened Brian Cowen”. Correct. I (with my wife) am the compound subject.

“My wife and me threatened Brian Cowen”. Incorrect. I (with my wife) am the compound subject.

“Brian Cowen threatened my wife and me..” Correct. I (with my wife) am the compound object.

“Brian Cowen threatened my wife and I..” Incorrect. I (with my wife) am the compound object.

Get the first four examples right and the compound examples will fall more readily into place.

Where you are part of a compound subject or object, it is courteous to place the reference to “you” last; “Bill and I…” not “I and Bill…”; “My wife and I…” not “I and my wife…”; or “…Bill and me” not “…me and Bill”.

“Myself” is a reflexive pronoun. A reflexive pronoun is used when the subject and the object of the verb are the same.

“I promised myself”

It can also be used for emphasis; “I don’t see it, myself”. An interesting use for this purpose is “Myself I shall adore” from Handel’s work “Semele“.

However, “myself” is not a substitute for “I” or “me”; you ought not to say “Myself and my dog…” or My dog and myself…”

Cerebral Palsy is not a disease; it is a condition.

It is relevant to lawyers when it is a consequence of negligence.

That negligence may have been an oversight in a maternity unit lasting, say, 30 minutes.

It is the new-born infant that is or will be injured by the oversight. Under the Statute of Limitations, time does not begin to run against the injured infant until the infant reaches its majority (18 years of age).

Thereafter, under current law, the infant has two years within which to issue proceedings in court. Thereafter, the delay in issuing proceedings is, in normal circumstances, a full defence to any claim.

In the event that such proceedings are issued and served, a defendant will typically apply to court to strike out the proceedings.

The defendant will not necessarily succeed.

Time only runs against a plaintiff who knows he/she has been injured (or could reasonably ascertain he/she has been injured) AND knows who or what has injured him/her (or could reasonably ascertain who or what has injured him/her).

A plaintiff whose hospital records show no evidence of error, effectively does not know who or what has injured him/her.

In Gough v Neary & Anor IESC [2003], Geoghegan J stated:

The plaintiff did not know that contrary to the false information given to her the hysterectomy was unnecessary until late 1998 or, indeed, some time after that when as a consequence of media coverage in relation to Dr. Neary and hysterectomies which he had carried out on a number of patients in connection with birth deliveries, she acquired the knowledge that the operation was unnecessary. That being so and in the absence of authorities, I would be of opinion that the plea of statute bar must fail.”

It is, therefore, critical that the hospital records be accurate and truthful. If they are not, and the plaintiff can show this, (the burden of proof will lie on the plaintiff), time will not begin to run until the plaintiff discovers the truth.