1. They have dog trouble in the UK. See it HERE.

2. For once our Government, [which, like every other element of the State, is, rest assured, amongst the best in the world], is ahead of the UK government. Unlike the UK there is, here in Ireland, a two tier level of strict liability for damage caused by dog attack.

3. Here, under Section 21 of the Control of Dogs Act 1986 an owner of a dog is strictly liable for damage sustained by a person in a dog attack and for any injury done by a dog to livestock.

4. The effect of this is make the owner [which may mean the “occupier” in some circumstances] liable, without proof of negligence, for injury suffered by a person in a dog attack.

5. Good news for owners of livestock; they do not have to prove ATTACK by the miscreant dog, just injury to the livestock consequent on dog “doings”.

Generally, we expect High court judges to intend to do justice on a persistent basis. (Despite the title of the Department of Justice, Equality and Law Reform, we expect less from the Department, it being a bureaucracy).
Nonetheless it appeared necessary to the Oireachatas to enjoin judges to do justice. We see this in Section 28 of the Civil Liability and Courts Act 2004.
(Of course the foregoing is a fiction. Our Executive has ensured that the Oireachatas does not function correctly; somebody other than the Oireachats decided the terms of the Act).
Section 28 reads:-

“28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997 , or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.”

This provision bristles with difficulties for a judge. Whatever the judge decides, an appeal court could and probably would take a different view. The Section implies that some people will get the compensation and some people will not. Why? We do not know, and not to know is wrong. The fact that a Defendant is insured must be a deciding factor, otherwise the decision to withhold compensation would result in tax foregone by fraud (or error?) being credited to an insurance company.
Is it possible that one or more insurance companies procured the insertion of this Section into the Act?

Yes it is. We see from the Irish Times that a committee of bankers’ representatives was designing legislation (for banks) as late as 2008.
Now we know how Government works.

The frequency with which patients are injured in Irish hospitals is very high. The current estimate is of 160,000 per year.

Who knows the exact figure? Presumably, the Health Service Executive does. If it does, why is that information not made public? If it does not know, why does it not know?
Let us assume that the HSE is a competent body and infused with goodwill towards the patients. Would it not be a good idea to try to eliminate the causes of accidents or adverse events? If it is such a body, should it not direct all the health care institutions under its control to investigate adverse events to analyse how an accident or adverse event occurred, to prevent its repetition? If such an analysis took place would the findings not be required to be disseminated to the staff? Otherwise how would the staff know what to look out for to avoid repetition?
Now, in the light of the foregoing, is there a system in Irish hospitals of recording and reviewing adverse events? It appears there is not. The evidence for this is a) practical experience of looking for records and documents and discovering an absence of such notes recording relevant events and b) we are forced, at a macro level, to guess or estimate the level of adverse event occurrence as evidenced by public conference statements.
Admittedly, the hospital could omit written records and could call a conference of staff for the second Friday after the event to discover what went wrong and resolve, collectively, to try to avoid a repeat of the event in the future. No notes would be kept of this conference.
Why did the Supreme Court not canvass such possibilities in Doherty v Reynolds and St. James’s Hospital [2004] IESC? In that case the Plaintiff had heartburn. Following his operation to deal with his complaint he discovered quickly that he had an injured shoulder. Before he left the hospital he complained of severe pain in his shoulder to, sequentially, a nurse and two doctors (one of whom was the anaesthetist in the operation). He was sent home. His GP, on the same evidence, referred him to Beaumont hospital, which, on the same evidence, admitted him for treatment.
The Supreme Court although remarking:-

“I have not the slightest doubt that the trial judge in this case was entitled to accept the evidence of the plaintiff, his wife and Father Flanagan as to the complaints of severe pain and limitation of movement in his right shoulder and arm that the plaintiff was making in the immediate aftermath of the operation. The absence of any records of these complaints by any of the hospital staff is certainly remarkable and reflects, at best from their point of view, a singularly inadequate system of record keeping. It is clear that the plaintiff, who had gone into hospital for an operation intended to deal with a condition of heartburn and acid reflux but was otherwise in normal health, came out suffering from a painful and disabling condition in his right shoulder and arm which did not respond to any treatment until some six years later: so much, at least, is not in dispute in this difficult case.”

- went on to reverse the High court verdict in favour of the Plaintiff and order a new trial because it disagreed with the High court finding that the principle of “Res Ipsa Loquitur” applied in the case.
The hospital staff gave evidence of their usual practices. The evidence was that such practices were safe. They, generally, said they had no recollection of the individual events of the Plaintiff’s operation. This was unsurprising; they were giving evidence seven years after the event. However, there was an exception; one nurse did have an individual recollection. Beaumont hospital had raised a query with the surgeon, who in turn, raised a query with one of the nurses. This happened in the month following the operation. Thus, the High court had evidence that the Plaintiff had complained of his injury while still in St. James’s hospital and Beaumont hospital had enquired, in its investigations of the Plaintiff’s injury.
Why was there no investigation by St. James‘s hospital following these complaints? In fact there was; it appears, on the evidence, it was confined to a conversation between a surgeon and a nurse.
Bearing in mind that the Supreme court thought that the hospital had “…a singularly inadequate system of record keeping”, it was remarkably indulgent in accepting that evidence from staff, of what they would ordinarily do, as opposed to what actually happened, was a sufficient response to the Plaintiff’s evidence. It was reasonably clear that the High court judge believed that the hospital staff were culpably ignorant and that the failure of the hospital to call ALL its witnesses was to be deprecated (and justified his implied conclusion of culpable ignorance).
On a global view, the HSE, it would appear, supported by the Supreme court, thinks ignorance is bliss.

Readers will have seen reference HERE to a plea in a medical negligence case as to the meaning of a “consent” signed by the patient (who was having an operation to make her sterile).

In Fitzpatrick v National Maternity Hospital [2008] IEHC 62 the Defendant claimed that the mother (in labour) declined an episiotomy or a forceps-assisted birth (leading to the damage to the infant). The court rejected this plea, and rejected the evidence of the Defendant, intended to evidence it.

In fact the evidence from the defendant was unequivocal; it alleged the parents had each rejected the offered treatment in circumstances where the staff said…

“…they could not be responsible for the consequences for her or her baby.”

… if the mother did not agree to the proposed actions.

The court said:

“I find on the evidence that Senior Midwife O’Dwyer did not, nor did Dr. Wiza, nor indeed did Staff Midwife Murphy (though on the evidence it was hardly her place to do so given the presence of the others) explain the severity of the plaintiff’s condition to either Mrs. Fitzpatrick or Mr. Fitzpatrick at any time prior to the birth of the plaintiff. I cannot imagine how it could be legitimately stated that this couple were extremely difficult to deal with in labour. I have already found that they were encouraged to and did formulate a birthplan which was given to and discussed with Staff Midwife Murphy on Mrs. Fitzpatrick’s admission to the labour ward, who then brought Senior Midwife O’Dwyer into the discussion.”

Litigation means a resort to the Courts for resolution of a problem. Wikipedia says the conduct of a lawsuit is litigation.

It also says:

“A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.”

We could go on and on and on about the topic, but this is a blog and we should limit ourselves to the practical.

A typical lawsuit has its origins in a Road Traffic Accident. (“an RTA”). A typical RTA will involve two motor cars. The drivers may have bona fide differing opinions of the causes of the accident. One driver may have sustained more damage than the other. These circumstances may drive the lawsuit.

There are other circumstances that drive a lawsuit. Greed can drive it. Desperation can drive it. Lack of scruples (a sub-set of greed) can drive it. Ambition can drive it.

Most lawsuits are settled. The judicial system is under-resourced to adjudicate on every lawsuit filed in court.

The statistics in the Annual report of the Courts Service of Ireland do not properly reflect this. Take the figures for the High Court civil cases in 2008. There were 22,861 proceedings issued in that year. Allegedly the court made 25,734 orders and there were 4,631 settlements. These two latter figures are categorized as “Cases disposed of”.

In truth the figures for commencement of proceedings and cases disposed of are unrelated. This is so notwithstanding that most proceedings would still be in being one year after being issued. The Court Service statistics take no account of cases commenced and then discontinued. These cases, more often than not, have been settled.

The litigants, with the assistance of the legal profession, settle their cases. (At lunch-time outside the Law Library).

The implications of this, for litigants, is profound. It implies the process is a rational process (on the whole). It is rational in the way a game of chess is rational. The rules and principles are sufficiently clear and well known that the outcome can be predicted with greater or lesser certainty. It is the function of the judges to preserve the integrity of the rules and, exceptionally, expand on them.

Nevertheless, litigation is uncertain. That may mean it is uncertain to the extent of 10% or 50%. The burden of proof in civil law is on the balance of probabilities. To win, a litigant must persuade a judge that what is alleged by that litigant is, on balance, more likely than what is contended for by the opponent.

Failure to settle a case, or failure to settle until “the door of the court” may be caused by a failure to assess where the balance in the case lies, or it may be evidence of a deferment of settlement to the day of trial to maximize the compensation discount a defendant would like to get from an injured plaintiff.

Whatever the case, those causes are in principle, also assessable.

Errors of judgment on the probability of an event are usually incorrigible. In short, even evidence that we are wrong will not persuade us that we are wrong in making a judgment as to whether something is or was probable or not. This is a serious problem. If we remain unaffected by evidence we are very unlikely to seek the advice or opinion of a statistician or other expert to help us estimate the probability of an event.

Road traffic accidents are common, but we rarely witness them happening. If we made a judgment of their frequency based on our experience, we would be wrong.

The title to the post is a tongue-in-cheek reference to “law” as in “law blog” and is, generally, a solecism.

The “law” is a reference to a common error. If we see a roulette wheel or some other random generator device favour red five times in sequence, we believe that the chance of it showing black, the alternative, on the next spin is greater than it showing red. For most people, this is a harmless error, excepting compulsive gamblers and property developers.

The courts, however, engage in exactly this exercise when they decide if something was or was not foreseeable. Clearly, evidence that something is common will secure a judgment that it was foreseeable, but an absence of evidence of the frequency of an event is not itself a basis to infer the frequency of an event; it is evidence of its being overlooked. The overlooking may be by the parties to litigation, or their lawyers, or it may be by the State or statisticians generally.

What is the likelihood of suffering injury from systemic failure in the Irish health system? Not very high, but not a remote possibility either.

We should remember what the statistics from the Personal injuries Assessment Board show us; Road Traffic Accidents are the major source by far of personal injury in Ireland. Even though PIAB does not assess medical negligence claims, such claims would never exceed the Road Traffic claims in frequency.

For more information see our Colour Supplement HERE

In W and M Wood (Haulage) Ltd. v Redpath [1967] 2 QB 520 the facts were these; a collision took place between a car and a lorry. It occurred on a straight stretch of road at night with no witnesses. The drivers and other occupants died. The available evidence was inconclusive as to fault. The court apportioned blame equally between the two drivers.

For more information see our Colour Supplement HERE

The revelation that Cardinal Brady was at the heart of a church hushing-up of crimes of Fr. Brendan Smyth prompts a reflection as to the malign uses of documents imposing confidentiality or curtailing rights.

In Byrne v Ryan [2007] IEHC 2007, the court considered a “consent” which a patient had signed prior to surgery. The Defendant referred to the terms of the consent suggesting that the Plaintiff might;

“…not become or remain sterile..”

The Defendant contended that this was a consent to the actual outcome of the sterilization operation (the operation had failed). The court rejected the argument, saying;

“It merely records the patient’s understanding that there is a possibility of failure.”

The courts have frequently rejected arguments that claims have been settled, as purportedly evidenced by “releases” signed by Plaintiffs.

In Horry v Tate & Lyle Refineries Ltd. [1982] 2 Lloyd’s reports 416, the Plaintiff suffered a personal injury at work. There was a possibility of a recurrence of the injury. The employer’s insurers negotiated a settlement with the Plaintiff who was not legally represented and was not independently advised. The injury did recur and the Plaintiff issued proceedings in respect of the original incident. The Defendants pleaded the “settlement”. The court ruled that the insurance company owed the Plaintiff a fiduciary duty of care to ensure that he got independent legal advice. They were also obliged to reveal the contents of their medical report on him, to him, and where their interests conflicted with his they owed him a fiduciary duty. Consequently, the settlement was not binding on him.

For more information see our Colour Supplement HERE

See the post “Gotcha?” below. In Clifford v Drymond [1976] RTR 134 CA the Plaintiff had been struck by a car at a pedestrian crossing. The court, accepting a calculation that the car that hit her had been traveling at not more than 30 mph and was about 75 ft. from the crossing when the Plaintiff began to cross, decided she had not been guilty of contributory negligence. She was 10 ft. onto the crossing when she was hit.

The appeal court found she was negligent to the extent of 20%. They said she should have allowed plenty of time to the car to stop or slow down and either saw the car or failed to see the car and was negligent in either event.

For more information see our Colour Supplement HERE

“The Green Cross Code” is for pedestrians.

The equivalent for motorists is more extensive. However, any amount of rules will be wasted if a driver has a defective attitude to his/her “rights”.

Long before the motorcar appeared, the roads were used by pedestrians and animals, particularly horses. It is within living memory that a large cattle market thrived at the top of Prussia St. on the North Circular Road in Dublin and the cattle were herded down the NCR to the docks for shipment to, usually, the UK. All that is gone now.

What motoring “entitlements” could be asserted in circumstances like that?

With the departure of the animals, only pedestrians remain to hinder the motorist. Pedestrians, being more malleable and responsive than animals, avoid offering themselves as a hindrance, for good reason.

Who has not been challenged by a motorist for having the temerity to walk across a T-junction, obstructing a turning car? Most pedestrians anticipate the car and yield to it, although the right of way generally rests with the pedestrian.

What hope, then, that a motorist would anticipate a momentary error by a pedestrian in a “refuge” on a dual carriageway? The self-same driver is, after all, in the “fast” lane as he/she zips past within inches of the pedestrian.

The fact is, a driver is obliged to drive in such a manner and at such a speed as to avoid a pedestrian who MAY step out onto the roadway. That implies that it is an obligation to SEE the pedestrian and, probably, to LOOK AT the pedestrian.

We see much of this in McDermott v McCormack [2010] IEHC 50.

The Defendant driver admitted he did not see the Plaintiff pedestrian. The Plaintiff was an admirable witness, given that he was thrown into the air by the Defendant’s taxi. The Defendant gave evidence of the Plaintiff’s head hitting his windscreen. The judgment does not record the Plaintiff’s evidence in detail on the point, but if it was tendered it would probably have been in terms of the Defendant’s windscreen hitting him on the head.

The case looks like one of excess of ambition by the defence. They were in possession of a report from a hospital showing the Plaintiff had been very drunk when the accident happened, but, as the judge remarked;

“…He was an alcoholic. Unfortunately, he still is. That does not disentitle him to damages.”

In the event the court found (without reference to the Green Cross Code, it not being law), the Plaintiff was 50% responsible for the accident (there was no crossing point on the road at the point of the accident) and reduced the damages from €266,758 to €133,379.

For more information see our Colour Supplement HERE