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.

In legal circles the significance of making a wrong statement looms large. We saw this in the case of Willie O’Dea. Willie’s case is a double example; he straddled the legal world and the political world with his error. In the legal world the political world is often looked on with a cold eye, for good reason. In politics “denial” is not, it seems, evidence of a character flaw; it can be a skill, measured by the duration of the deferral of the time one is called to account.

Denial is only incidentally the subject of this post; conveying wrong information is its subject.

We are all of us guilty, at some time or other, of doing this. We have firm clear recollections of where we left the keys, the hand blender, the tea-bags, the car insurance etc. We were wrong. Nevertheless, we conveyed (even propagated) the wrong information to someone else. Errors of this kind are common. Significantly, being wrong is not evidence of wrongdoing.

There are occasions when being wrong is evidence of wrongdoing, but these occasions are not common. Even sworn evidence in court, if not accepted by the court, does not lead to a charge of perjury. Generally, we do not infer dishonesty from the error in the statement. It is tempting to say that the more elaborate the statement, the more it is evidence of a malign intent if it is wrong, but this is not true, as we saw in the case of Hilary Clinton.

Perjury aside, the law has been anxious to distinguish between wrong statements that cause personal injury and wrong statements that cause economic loss. (Most wrong statements cause neither).

We see in the case of Walsh v Jones Lang Lasalle [2007] IEHC 28 an instance of what statements and what circumstances will trigger liability for economic loss in Irish law.

In 2000 the plaintiff purchased 77 Upper Gardiner Street in Dublin for the sum of IR £2,342,000.00 for investment purposes. He dealt with the defendant firm, acting for the vendor and the defendant told him (in its sales brochure) that the property comprised a floor area of 23,057 square feet. In fact the floor area of the property was 21,248 square feet, (1,817 square feet less than what was represented to the plaintiff by the defendant).

The defendant’s brochure contained a disclaimer of liability for wrong statements in the brochure in the following terms;

“Whilst every care has been taken in the preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/lessees should satisfy themselves as to the correctness of the information given.”

The High Court found for the plaintiff as follows; (a) the relationship between the plaintiff and the defendant was sufficiently proximate to give rise to a “special relationship” of the kind identified in Wildgust and, (b) that the loss allegedly sustained by the plaintiff was reasonably foreseeable in the circumstances and, (c) that the imposition upon the defendant of such a duty was, in the circumstances not unfair, unjust or unreasonable. The court was satisfied on the facts of the case that the defendant owed a duty of care to the plaintiff to ensure that the calculation of the floor area of the property that the defendant published in its sales brochure was accurate.

In the absence of evidence of purchasers commissioning surveys to check the accuracy of precise measurements contained in the brochures of reputable auctioneers, the court refused to find the plaintiff guilty of contributory negligence in failing to check the defendant’s measurements.

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.

Auditors are “watchdogs, not bloodhounds” said the court in Re Kingston Cotton Mill Co. (No. 2) [1896] 2 Ch 279 CA. Even at the time this was a very limited view of what we can expect of auditors or their like. (It was also infelicitous; auditors are not and never were, even metaphorically, like “watchdogs”). Considering that Sherlock Holmes was an available “example” (1880 to 1907), it is surprising the judge did not feel more could be expected of the auditors of his day than he settled for.

The job of an auditor is to ascertain if the accounts provide “a true and fair view” of the company’s financial position. However, the auditor’s judgment on this is not, and should not be, absolute. After all, the auditor should not be the equivalent of an insurer where he pays if there is something wrong and loss accrues. In modern times the profession, as always, determines the liability of auditors. The profession has issued guidelines for auditors. Those guidelines now impose a higher standard on auditors than Re Kingston.

These guidelines were quoted in Moore Stephens (a firm) v Stone & Rolls Limited (in liquidation) [2009] UKHL 39

”Auditing Standard SAS 110 (issued January 1995) deals with fraud and error. It contains statements of auditing standards (SAS) and explanatory text in numbered paragraphs. SAS 110.1 states: “Auditors should plan and perform their audit procedures and evaluate and report the results thereof, recognising that fraud or error may materially affect the financial statements”. SAS 110.10 (para. 50) states that, on becoming aware of a suspected or actual instance of fraud, auditors
“should (a) consider whether the matter may be one that ought to be reported to a proper authority in the public interest; and where this is the case (b) except in the circumstances covered in SAS 110.12, discuss the matter with the board of directors, including any audit committee”.
SAS 110.12 (para. 52) provides that
“When a suspected or actual instance of fraud casts doubt on the integrity of the directors auditors should make a report direct to a proper authority in the public interest without delay and without informing the directors in advance.” “

The fact that the auditors in that case escaped by the skin of their teeth shows life is going to get difficult for the profession.

It is ironic that I should suggest HERE that an opinion should not be asked of a lawyer in any and every circumstance (or, specifically, should not be asked for in some circumstances) and then, belatedly, discover the blogging phenomenon that is Eoin O’Dell has availed of a disclaimer on his website.

What is good enough for Eoin O’Dell is good enough for McGarr Solicitors. We are now following his example (and some of his wording, which, we believe, he permits). The wording is not identical to his; his blog ranges into subjects where we do not venture. The reasons for this vary. We have, to date, for instance, refrained from telling the world our opinion of the film “The Last of the Mohicans”. (It is not a promotion of the myth of the noble savage; it rejects it. What is noble about Magua? Certainly, Uncas and Chingachgook are noble, not because they are savages but because they are civilized). (This being a blog and of limited space, it is not possible to reconcile the contradictory use of “civilized” in connection with characters unconnected with a city).

OUR DISCLAIMER

“We get some emails asking for legal advice. (Not surprisingly; that’s the business we are in).
However, this blog is not intended to convey, and should not be construed as, or used as a substitute for, legal advice. It is written for general, informational purposes, and reading it does not create a lawyer-client relationship. Moreover, this blog is always under construction, and the contents are always changing, so please do not rely on any post as a comprehensive or current statement of the law on any of the issues discussed. No responsibility of any kind is accepted for any reliance you may place on anything I have written here.
There are lots of links in my posts, but I am not in any way responsible for the content of sites linked from here – such sites are the responsibility of those who maintain them; complain to them, not to me.”

(I am going to ask our IT department to place this in a more central place; some things are beyond me).

Many claims against employers can and will fail when the claim is made as one of negligence by the employer. However, because of the multitude of duties imposed on employers by statute, it is common for the employer to be found liable to the employee for an injury even where the employer has not been “at fault” (meaning, here, “negligent”).

The duty imposed by Regulation 28 of the Safety, Health and Welfare at Work (General Application) Regulations 2007 is a case in point. Its predecessor, Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 was described in Doyle v Electricity Supply Board [2008] IEHC 88 as

“In the instant case, I have found that the plaintiff has not established a breach by the defendant of any duty at Common Law owed by the defendant to the plaintiff as his employer.
However, with effect from 22nd February, 1993, (when the Regulations of 1993 came into force), a statutory duty was imposed upon the defendant which has been described (by Kearns J.at p. 263 in Everitt) “as virtually an absolute duty” which requires the defendant “ . . . to ensure that . . . the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”.”

Regulation 28 (and Regulation 19 before it) imposes duties on employers relating to work equipment. The equipment must be suitable and free of risk to the employee. It is not necessary to prove that the risk was known to the employer; all that is required is to prove the injury and relationship of the injury to the equipment.

The Minister for Transport has suggested that he will require the occupiers of premises adjacent to public footpaths to clear them of snow and ice.

He has also, unfortunately, indicated that the occupier will be exempted (by the Minister) of legal liability arising from that obligation.

Why bother?

If the occupiers are free of consequences for failure, they won’t clear the pavement in the first place.

The Minister’s proposal is not suitable for legislation; it is suitable for a proclamation. He is, in effect, proposing to issue a call to arms, directed to the Nation, enjoining the citizens to embrace goodness and to avoid evil.

(The title to this post comes from one of my Christmas presents; a series of CDs of episodes of “Jeeves and Wooster”, starring Hugh Laurie as Bertie and Stephen Fry as Jeeves. My particular interest is in the Drones club and its members; it helps to understand current Irish politics by realizing that the Drones are in charge)

(Slippy pavements are not our major problem; NAMA is the big problem).

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.