We were mind boggled to learn that there are 4,000 adverse incidents in Irish Hospitals every month.

Now we know the statistic is wrong. It does not include the 58,000 adverse incidents from Tallaght Hospital.

A very large number of intelligent, knowledgeable, people must have known of the “systemic failure” in Tallaght. Every medical practitioner who read a Tallaght x-ray and acted on that reading knew that no confirmatory reading from a consultant radiologist had come to hand.

“Irish Health” reports;

“The remainder of the x-rays to be reviewed and reported on are understood to relate mainly to orthopaedics, and further new delayed diagnoses are thought to be unlikely at this stage.”

I imagine the reason for this is the tendency for failures to detect bone damage in x-rays to come to light by the pathetic return of the patient to the hospital with exacerbated injuries from neglect of the original injury.

In Byrne v Hudson [2007] IESC the Plaintiff lost his eye when an adult son of the owners of 84 Windmill Rd. Crumlin in Dublin shot him with a paint ball gun from the upstairs window of that house.
The Plaintiff instructed his solicitor. However, the Plaintiff failed to tell the solicitor of certain circumstances actually known to him. Those circumstances were that the father of the adult son no longer lived at 84 Windmill Rd. and that the occupier was the mother. (The adult son also did not live at the address.)
Consequently, when the solicitor issued proceedings, the adult son and the father were named as the defendants, the latter as the occupier of the premises. As he was not the occupier, the action was bound to fail against him. Much later the Plaintiff joined the mother. She pleaded the Statute of Limitations 1957, as amended. The Plaintiff pleaded the Statute of Limitations (Amendment) Act 1991 in reply. Under this amending act time does not begin to run until a victim knows or with reasonable inquiry can know the identity of the person who has wronged him or her.
The mother claimed that the time within which the Plaintiff could effectively and successfully issue proceedings against her had long since expired. The Supreme Court agreed with her. It found that the Plaintiff could not avail of the provisions of the Statute of Limitations (Amendment) Act 1991 in circumstances where not only could he easily find out the relevant facts (that the mother was the only occupier) but that he actually knew this when he instructed his solicitor (and failed to tell him).
(What was at issue, [it is surmised], was the probable availability of insurance cover for the Plaintiff’s claim. That cover was to benefit the occupier and not anyone else. The adult son was not welcome in the house; he would not have been an insured person. The father was not an occupier; he would not have had cover. Only the mother as occupier would have been covered. She was the proper and preferred defendant.)
(Currently, an injured person has two years to issue proceedings and to stop time running against him or her. Only if the Statute of Limitations (Amendment) Act 1991 applies, will that time not start running at the accrual of the cause of action (the date of the injury)).
It is unwise to make a quick judgment on whether time has run against a claim or not. This post should not be relied upon to determine that question in any case. See the post “Disclaimer!” in this blog.

It isn’t easy to generate readable prose on any subject, even one’s “own” subject. The principal difficulty is the depreciation of intellectual capital. We tend to learn what we know early in life and by the time we look authoritative we know less than we ever knew.

Maurice Neligan is a case in point. In the Irish Times he has opined about the trauma of medical negligence claims on doctors.

He shouldn’t bother, unless he has monitored the latest available information (in the self-same Irish Times!)

That shows there are more than 4,000 adverse incidents in Irish Hospitals each month. That’s more than 48,000 per year.

The trauma to concern us should be the trauma of the victim patients, not the trauma of the doctors.

The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

The Personal Injuries Assessment Board (“PIAB”) has published a book showing the level of damages the Board will recommend for various injuries.

The book is incomplete. We see this from the case of Kenny v Cowley [2006] IESC 37.

In this case the Plaintiff had a defective left eye before the accident (for which accident the defendant was liable). His right eye was injured in the accident and his vision in it was much reduced. The Supreme court judge writing the consensus judgment noted that the PIAB book did not deal with the loss of an eye. (In fact, the plaintiff’s claim was not simply for the loss of an eye; it was for the loss of his only useful eye).

The Supreme Court decided the award of €90,000 by the High Court for the injury was too low. It increased the award to €120,000.

There is an argument to be made that the broad statement in the blog post “Slip and Fall” acknowledging impunity for public authorities for non-feasance is wrong.

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.

Many people have been injured in Ireland on public pavements due to the recent snow and ice. Public pavements are “public” because they have been “taken in charge” by the local authority. (If they are not taken in charge they are private pavements.)

It is settled law in Ireland that a public authority is not liable for damage arising from “non-feasance”. This means that, if the public authority fails to exercise a statutory power, and loss is sustained which would have been avoided if the power had been exercised, the public authority is not accountable in law for that failure.

(This does not mean that public authorities are not liable for all failures. They are liable to the same extent as ordinary persons for failure to act; that means that a Plaintiff must prove a duty of care resting on the public authority and loss arising from breach of the duty or care.)

Consequently, a failure by a local, or other, authority to clear snow and ice from roads or footpaths, generally, is an act of non-feasance and attracts no legal liability.

Private persons (adjoining owners and occupiers) have, generally, no liability in common law to clear public roads or pavements of snow and ice. They may have a particular liability; if they place the snow or ice on the road or pavement, or create it in the first place. These acts would constitute a public nuisance. For instance, if the owner or occupier transfers a snow burden from his premises onto the public pavement, the presence of the snow is not “natural”. It is man-made. The owner or occupier had created the condition. For further instance, if the owner or occupier pours hot water on the pavement to melt ice already there, and the water freezes, the new ice will have been created by the owner or occupier.

If the servants or agents of a public authority create a public nuisance, the authority will be liable on the general principles of nuisance.

In the City of Dublin a particular liability rests on owners and occupiers (including local and public authorities) adjoining public pavements to clear the pavement of snow immediately on the cessation of the snowfall. The liability was created by bye-laws of June1899. The bye-laws do not expressly create an entitlement to compensation for persons injured on such un-cleared pavements, but the courts have consistently interpreted such statutory obligations as creating and conferring such entitlement.

The liability for private roads and pavements will be covered by either or both of contractual duties, if any, and the Occupiers Liability Act 1995.

ENDORSEMENT OF CLAIM

1. The Plaintiff’s claim is for the reliefs recited herein for personal injuries suffered by the Plaintiff.

2. The first Defendant resides at . The second Defendant resides at .

WRONG ALLEGED AGAINST THE DEFENDANTS

3. At all material times the first Defendant was the driver of a motor vehicle, the property of the second Defendant, in which the Plaintiff was traveling as a passenger and which collided with a third party vehicle causing severe personal injury loss and damage to the Plaintiff.

PARTICULARS OF CIRCUMSTANCES RELATING TO THE COMMISSION OF THE WRONG

4. On or about the 1st December 2009 the Plaintiff was lawfully a passenger in a motor vehicle driven by the first Defendant on the public highway at Dame St. in the City of Dublin, when owing to the negligence and breach of duty including breach of statutory duty of the Defendants their servants or agents or either of them in and about the driving, management, care, control and upkeep of a motor vehicle then being driven by the first Defendant and being the property of the second Defendant, same was caused or permitted to collide with a third party vehicle in consequence whereof the Plaintiff suffered severe personal injury and suffered loss damage and expense.

5. The Defendants their servants or agents or either of them were guilty of negligence and in breach of statutory duty in that they or either of them:

a) Drove too fast;
b) Drove without due care and attention;
c) Failed to keep a proper or adequate lookout;
d) Collided with the said third party vehicle;
e) Failed to have any or any adequate regard for the prevailing road conditions;
f) Failed to stop slow down swerve or in any other way so to manage the said vehicle so as to avoid the said collision;
g) Failed to have any regard to the presence and location of the third party vehicle on the highway and to yield the right of way to the said vehicle;
h) Failed to comply with the provisions of the Road Traffic (Traffic and Parking) Regulations of 1997 and Section 67 of the Roads Act of 1993.

PARTICULARS OF PERSONAL INJURY

6. The Plaintiff suffered severe injuries to his head, face, neck and legs as a result of the accident. He was taken by ambulance to the Mater Hospital and then transferred to Beaumont Hospital. He underwent nailing of his right femur and the screw was subsequently removed in December 2010. The Plaintiff remained in hospital in Beaumont for approximately 14 days. He was then transferred back to the Mater Hospital where he underwent further treatment, including physiotherapy.

The Plaintiff continues to suffer from ongoing pain in his right leg that restricts his lifestyle and employment prospects. The screws were removed from his leg and he has continued to suffer from ongoing muscle pain on the right side. The Plaintiff obtained employment as a storeman during the course of 2010 but it was necessary for him to give this up as a result of pain in his right thigh that was made worse by prolonged standing. It is the opinion of the Plaintiff’s experts that he sustained a concussive head injury of moderate severity. This injury is associated with psychological symptoms that have improved but have not recovered completely. As a result the Plaintiff continues to experience ongoing post-traumatic headache and neck pain.

The Plaintiff has a visible scar across his cheekbone and a scar on his chin. The Plaintiff also suffered dental damage as a result of the accident. It is expected that the Plaintiff’s cognitive impairment is likely to be permanent with no further improvement. It is the opinion of the Plaintiff’s expert that the Plaintiff’s capacity for future employment is more limited than it would have been if the injury had not been sustained. It is likely that the right femoral injury will limit his ability to obtain employment that requires walking long distances or prolonged standing. His cognitive impairment will make it more difficult for him to learn and remember the tasks of a new job. In the circumstances the Plaintiff will probably suffer loss of earnings into the future and will require vocational review.

Apart from the physical injuries the Plaintiff’s psychological symptoms included mood disturbances, suspected post-traumatic stress disorder and cognitive impairment. The Plaintiff continues to suffer from nightmares and flashbacks as a result of the accident. The Plaintiff had suffered an episode of depression in his early twenties but had no difficulties immediately before the accident. A final prognosis must be guarded. The injuries were severe and debilitating. They interfered with the Plaintiff’s enjoyment of life and all routine and other activities, particularly his playing of football, which he was accustomed to doing every Saturday before the accident. The onset of further sequelae cannot be ruled out.

RELIEFS CLAIMED

7. AND the Plaintiff therefore claims damages together with the costs of these proceedings and interest pursuant to the Courts Act 1981.

8. The proceedings herein have been authorised by the Personal Injuries Assessment Board, pursuant to Section 17 of the Personal Injuries Assessment Board Act 2003 by Authorisation No. XXXXXXXXXXXXXXXXX dated 1st September 2010.

SCHEDULE

PARTICULARS OF SPECIAL DAMAGE

Loss of earnings (continuing)
Medical expenses (continuing)
Chemists’ bills (continuing)
Travel (continuing)

Signed: ____________________________
McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8
Ph.: 01-6351580

This Summons was issued by the Plaintiff Joe Soap whose personal details are as follows:

1. The address at which the Plaintiff ordinarily resides is 10 Leafy Lane, Ballyfermot, Dublin 10
2. The Plaintiff’s occupation: Storeman

3. Plaintiff;s date or birth: 1/4/1979

4. Plaintiff’s PPI No. XXXXX

5. Plaintiff’s address for service is: McGarr Solicitors
Solicitors for the Plaintiff
12 City Gate
Lwr. Bridge St.
Dublin 8

It is far from obvious what money is.

That the price of gold has risen to an all-time high is evidence of this.

Of what real value is a piece of gold? It has some industrial use, but not much.
It endures over time, but basalt does likewise and, indeed, in the context of a human lifetime the endurance of gold is nothing outstanding; it shares that property with too many other substances. Why should it increase in value relative to any, or all, national currencies, as it has done?

It is in fact a reference point; the currencies have fallen in value relative to it.

Probably money is an economic notion more than a legal one. That notion is subject to change; consider e-money.
E-money can be encountered in a chip card which has been “loaded” with “value” and which can be used to discharge an obligation, limited to the value in the card. The possession of the card is sufficient to get the value of it. Significantly, the State need not, and usually does not, have any involvement in such e-money.

One theory of money, “fiat money”, bases it on the State control of the monetary system and the issuing of notes and coinage. “Nominalism” is an essential element of the State theory of money. Nominalism was recognized by Aristotle in the Nichomachean Ethics;

… money has been introduced by convention as a kind of substitute for a need or demand … its value is derived not from nature but from law, and can be altered or abolished at will”.

It is a principle of Irish (and UK) law that the purpose of the award of compensation by the courts is to, insofar as money can, place the injured party in the same position as if he/she had not been injured.

The State theory of money is, potentially, at odds with that principle because nominalism disregards everything save the attributed value to the currency or State “unit of account”. Nominalism disregards the changing value of the currency. It takes no account of inflation or depreciation.

The compensation principle is an expression of another principle; the need to do justice. The acceptance of Nominalism is, when it comes to compensation for injury, a breach of the requirement to do justice.

Un-adjusted money value may, in a period of inflation, greatly benefit a wrongdoer. The wrongdoer may deprive a victim of value but, due to the effects of inflation, ultimately be obliged only to make restitution of something of lesser value than the benefit he/she gained.

The Book of Quantum of the Personal Injuries Assessment Board has a similar effect.
It sets out “values” for some types of personal injury and in doing so clearly accepts the State theory of money and inherently accepts the principle of nominalism. In truth, the “values” in the Book of Quantum are not fixed values; they change to a greater or lesser degree and the underlying trend historically is to have them depreciate in value, relative to everything other than the attributed value of the currency.

The UK courts have avoided the problem by affirming that the “value” at the date of judgment is the appropriate value to determine proper compensation – [Ascot Midland Baptist (Trust) Association v Bermingham Corporation (1970) AC 874]. This approach involves taking account the value of the money; it takes account of the effect of inflation. A Book of Quantum does not.

It is worth noting that the UK Law Commission rejected the idea of the establishment of a “Compensation Advisory Board” i.e. a UK PIAB.

Conventionally, to propose a debate is to, impliedly, claim to be reasonable. Calling for a debate overlooks the fact that we cannot, and should not, submit everything to debate; where things are settled and agreed, they should not be opened to examination (and procrastination), unnecessarily. The call may be further invalid (and in bad faith), in not really proposing a debate, but simply using it as an announcement of intended, forced, change.
That’s the reality of the debate proposed by Colm McCarthy, the economist, on compensation for personal injuries.
He, in effect, is proposing to reduce that compensation. His proposal could be ignored if we did not know that he expresses the view of Brian Cowen, the Taoiseach; that is, he expresses the view of the Government.
This is valuable. As a consequence of knowing his connections, we have an insight into the Government’s view of NAMA. Mr. McCarthy has proposed that NAMA be used to process the payment of personal injuries compensation.
Currently, the Government has tunnel vision when it comes to money and payments; it wants to reduce it’s liability to pay them. Imagine our scepticism if Brian Cowen claimed, now, that he wished to be “fair” in proposing, or introducing, a new method of delivering compensation to injured persons. (Consequently, we have Mr. McCarthy flying the kite).
For a long time the Executive has undermined the constitutional principle that the violation of bodily integrity be vindicated.
a) It abolished the use of civil juries to determine liability and quantum in personal injury cases.
b) It has reduced the time within which an injured person must issue proceedings against a wrongdoer, before being statute barred and deprived of the right to be compensated.
c) It has imposed a cumbersome procedure on personal injury claimants by means of the Personal Injuries Assessment Board (“PIAB”) (aka “the Injuries Board”).
d) It has attempted to block access of injured persons to experienced personal injury lawyers.
e) It has introduced intimidatory procedures for Plaintiffs in the personal injury litigation process.
In Ireland, as in the UK, we have formally addressed the necessary, process of reforming our laws.
We have a Law Reform Commission. We have a Committee on Court Practice and Procedure. We have a Constitution Review Group. We have an Oireachtas Committee on the Constitution.
In short, we are not lacking in mechanisms for correcting archaic legal elements.
Now, it seems, we have one, possibly two, more. They are Colm McCarthy, and NAMA.