Supreme Court Judgement

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.

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.

The mark of a good court judgment is its intellectual quality. Some, unquestioned on delivery, are revealed as dubious with the passage of time.

There is nothing compelling about the decision of the Supreme Court in Attorney General v Hamilton [1993] 2 IR 250.

In that case, the Supreme Court decided that the collective responsibility of the Cabinet (the Government) under Article 28.4.1 implied a constitutional bar on the disclosure of dissenting views in Cabinet.

The one does not follow the other of necessity. It may be the norm that dissent is not disclosed; it may be better that disclosure not take place, generally; but it may sometimes be a good thing to make disclosure of dissent. The Supreme Court closed that off. It did so with no significant history of disclosure by Cabinet members (other than selective “leaking” by, usually, the Government itself).

The Taoiseach has adequate powers of discipline to control the members of the Cabinet. If he (or she) cannot use those powers effectively, that is evidence of a political crisis and indicates there ought to be an election. For good reason, the Courts should steer clear of situations like that.

The decision has had bad effects. It endorses a damaging idea of Government; one where the freedom of the Executive to act without challenge and with impunity is put at a higher value than the principle that the interests of the electorate are paramount.

It is a deeply anti-democratic view.

In Cosgrave v Ryan & Anor. IESC [2008] Goeghegan J. remarked on the fact that the plaintiff’s action, in the High Court, had lasted four days. This happened despite the fact that the ultimate defendant, the Electricity Supply Board, offered no witness evidence from its employees.

The High Court judge, (whose judgment was reversed in the Supreme Court) had acceded to the defendant’s proposition that the plaintiff had failed to prove negligence by the defendant.

The plaintiff, an agricultural contractor, had been injured when an agricultural machine he was driving, in a field, came in contact with power lines owned by the defendant.

The machine was 13 feet high at its maximum. The fact that the accident happened implied therefore that the power lines were at that height at least.

Despite this, the defendant (as recounted by the Supreme Court) spent a considerable time in its cross-examination of the plaintiff and his witnesses in advancing various theories to explain the accident.

The one which appealed to the High Court judge was one which the defendant had not actually “put” to the plaintiff; the defendant advanced it late in the hearing.

As the Supreme Court remarked:

There is, of course, no law which requires a defendant to give any evidence at all, to say nothing of any particular evidence. But if a plaintiff puts forward a prima facie case which has not been answered he is usually entitled to succeed.”

This writer has advanced his own opinion above that “the fact that the accident happened implied the power lines were at a height of [13 feet] at most”.

And why not? According to the Supreme Court, it appeared counsel for the defendant had done as much himself (but with a different explanation)

As the Court remarked:

The most interesting feature of these six criticisms is one to which I have already briefly adverted. They do not include the suggestion which afterwards featured heavily in the cross-examination of the appellant’s engineer that even assuming the machine was thirteen feet high and the wires were not lower than fifteen feet the machine at the time of the accident might have been driven on a hilly bit of ground with the effect that the chute reached a height of fifteen feet. I draw the inference and I think I can legitimately draw the inference from that, that whatever investigation was done by the ESB (if any) prior to the trial of the action did not include this explanation and that this was a suggestion thought up by counsel either on his own or more likely after consultation with the outside engineer called on behalf of the ESB. I will, of course, be returning to this subject when covering the cross-examination of the engineer called on behalf of the appellant and the examination and cross-examination of the engineer called on behalf of the ESB. In the meantime, I intend to comment in turn on each of the six above listed theories or suggestions put to the appellant in cross-examination.”

In summation the Supreme Court made this remark:

Most of the suggestions put in cross-examination to the plaintiff as to what he should have done were farfetched and wholly unreal as I have already indicated.”

When the “Evening Herald” published a report in December 2004 about a certain criminal case it would have been hard to foresee the actual consequence of the publication.

The Director of Public Prosecutions took exception to the contents of the report and made application to the High Court to attach the property of the publisher and commit to prison the editor of the Evening Herald.

The High Court declined to grant the orders sought.

The DPP appealed the decision to the Supreme Court. The respondents made rejoinder citing, inter alia, Section 11 of the Criminal Procedure Act, 1993 which reads:

(1) The right of appeal to the Supreme Court, other than an appeal under s.34 of the Criminal Procedure Act, 1967, from a decision of the Central Criminal Court is hereby abolished.”

A preliminary issue was tried by the Supreme Court on the point as to whether an appeal lay from the High Court to the Supreme Court, given the terms of Section 11 of the 1993 Act.

The term “Central Criminal Court” had its meaning determined by the Courts (Supplemental Provisions) Act 1961. It meant the High Court exercising its criminal jurisdiction.

The High Court exercising the Criminal jurisdiction with which it is invested shall be known as An Phríomh-Chúirt Choiriúil (The Central Criminal Court) and is in this Act referred to as the Central Criminal Court.”

In the proceedings in the High Court, the Court accepted the proceedings were criminal. The Court proceeded to apply the standard of proof appropriate to a criminal charge (beyond a reasonable doubt) to the case against the Evening Herald.

The judgments of the Supreme Court accepted that the trial in the High Court had been a trial of a criminal matter.

However, only one judgment found that Section 11 of Criminal Procedure Act, 1993 had the effect of abolishing the right of appeal in the case to the Supreme Court.

Geoghegan J, part of the majority, addressing the central point, and on the interpretation of S. 11 of the Courts (Supplemental Provisions) Act 1961, stated;

These additional subsections, in my opinion, clearly indicate that what section 11 is dealing with is indictable crime tried by juries in the ordinary way. There is nothing in the section which indicates that there was any intention to change the long established summary procedures (which were intended to deal with urgent situations) in relation to criminal contempt.”

He went on to say;

Where I disagree that contempt proceedings are not sui generis is in relation to the historical procedures which have applied from time immemorial and up to the present in relation to contempt proceedings. In my opinion, that is a respect in which they are quite obviously sui generis. I think that if anything the quotation from Palles C.B. in AG v. Kissane 32 LR Ir 220 referred to in AG v. O’Kelly [1928] I.R. 308 and fully set out in the judgment of Hardiman J. bears out the separate aspects of the contempt jurisdiction even though in so far as it involves fining and imprisoning that jurisdiction as pointed out by the Chief Baron is “essentially criminal”. As Hardiman J. points out, that would mean, for instance, that the criminal standard of proof must apply.”

And;

The fact that accusations (to use a non-legal term) of criminal contempt however serious have been tried summarily by judges over the centuries makes them sui generis in a procedural sense. Indeed there is one aspect of their uniqueness which I have not up to now mentioned. Quite apart from cases of contempt in the face of the court, criminal contempts are offences against the administration of justice itself and are, therefore, offences not exclusively external to the court itself even if the party applying for the attachment or committal is himself offended.”

This extract is a reference to “the elephant in the room”. Because of the net point before the court, the inherent subversion of the jurisdiction of the High Court in contempt matters, by the stance of the Evening Herald, was veiled but real.

The most significant question in the whole matter and one left unanswered was whether the “contempt jurisdiction of the High Court” could or should continue to be exercised as it has in the past.

There is some difficulty in defining the difference between civil contempt and criminal contempt. Nevertheless, that distinction is clearly recognized in Irish law (The State (Commins) v McRann [1977] IR 78). Speaking generally, criminal contempt is an offence of a public nature, civil contempt is one of a private nature, depriving a party to an action of the benefit for which the order was made.

Contempt of court, in court, is a crime (Petty Sessions (Ir). Act 1851 Section 9). There exist two forms of procedure for dealing with contempt; the ordinary criminal procedure of summons or indictment and the summary jurisdiction of the High Court. Referring to the latter, contempt of court, in all its forms, is, according to O’Higgins CJ, simply outside the mainstream of the substantive criminal law (So characterized by the Law Reform Commission Consultation Paper on “Contempt of Court” at p. 208). This view of O’Higgins CJ was obiter (The State (DPP) v Walsh [1981] IR 412) and is to be contrasted with the view of the majority in that case. The summary jurisdiction referred to is one where, of its own motion or otherwise, the High Court may dispose summarily of an offence of contempt of court. In The State (DPP) v Walsh, the Supreme Court, not accepting, on the facts, the respondents’ claim of entitlement to a trial by jury, accepted that the respondents had, prima facie, a right to a trial by jury. If this view is correct Article 30.3 of the Irish Constitution, which provides that all major criminal prosecutions must be prosecuted in the name of the people and at the suit of the Attorney General or some other authorised person (the Director of Public Prosecutions), indicates the correct procedure to adopt in all cases, with the possible exception of contempt in the face of the court.

By contrast, if the view of O’Higgins CJ is correct, the High Court has a formidable power of investigation, adjudication and punishment based, apparently, on the Constitution, without reference to any other institution or element of the State. (This is a proposition impliedly accepted, it appears, by the judgment of Geoghegan J.)

Given the lack of definition on the issue that jurisdiction can be invoked with drastic effect, in civil proceedings.

In the UK the courts have responded to this situation.

In Dean v Dean, ([1987] 1 FLR 517) Dillon LJ stated;

I have no doubt… that the procedure in contempt is of a criminal nature and that the case against the alleged contemnor must be proved to the criminal standard of proof. That was not a matter for decision in Khawaja… the matter rests on long established practice, probably well before the Bramblevale case… and certainly repeated many times since in this court…”

O’Connor J said in P A Thomas & Co. v Mould (P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963)

where parties seek the power of the court to commit people to prison and deprive them of their liberty there has got to be quite clear certainty about it.”

In Guildford Borough Council v Smith (1993) Times 18th May, Sedley J commented

I am unable to accept that committal on the motion of an antagonist in civil proceedings is today in any admissible sense the private law right of which older dicta suggest it was. To all intents and purposes it is a form of private prosecution”.

Any irregularity in the proceedings on which an attachment is founded will entitle the prisoner to a discharge (In re Holt, 11 Ch. D. 168; Dan. Ch. Pr. 5 ed. 436). A “contemnor” is entitled to apply to court and be heard on applications to discharge the contempt order for irregularity (Contempt of Court etc.: Oswald 2nd Ed. [1895] p. 197.) A “contemnor” is entitled to apply to court and be heard (Hadkinson v Hadkinson [1952] ; X Ltd. v Morgan-Grampian Ltd. [1991] 1AC 1 at 21; [1990] AER 616 at 627) on applications where he is submitting that he is not or should not be treated as being in contempt. (See Gordon v Gordon [1904] P.163 CA)

No person will be held guilty of contempt for breaking an injunction unless the terms of the injunction are themselves clear and unambiguous (Iberian Trust Ltd. v Founders Trust and Investment Co. Ltd. [1932] 2 KB 87 at 95; P A Thomas & Co. v Mould [1968] 2 QB 913, [1968] 1 AER 963).

All contempts are…cleared after an order of the Court discharging the offender from punishment; e.g. if upon the application of the offender for release from custody that release is ordered, he cannot again be punished for the same contempt (Contempt of Court etc.: Oswald 2nd Ed. [1895] p.193).

Pursuant to the European Convention on Human Rights Act 2003 a person accused of contempt is entitled to have Irish law applied in a manner compatible with the State’s obligations under the provisions of the European Convention on Human Rights. In Harman v United Kingdom, (App. No. 10038/82; 38 D.R. 53) the European Commission on Human rights declared admissible a complaint that the applicant’s conviction for contempt was in breach of Article 7 of the European Convention on Human Rights. Under Article 6 (1) it is provided that

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Harman v United Kingdom, is authority for the proposition that contempt of court is a criminal offence within the meaning of Article 6 of the European Convention on Human Rights. The European Court of Human rights will inquire whether the tribunal offered guarantees sufficient to exclude such a doubt, (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Incal v Turkey (1998) 29 E.H.R.R. 449 [para. 65]) or whether there are “ascertainable facts” that may raise doubts as to a tribunal’s impartiality.( Hauschildt v Denmark (1989) 12 E.H.R.R. 266 [para, 48]:) In making an assessment of a tribunal’s impartiality, “even appearances may be important”. (Piersack v Belgium (1982) 5 E.H.R.R. 169 [para, 30]: Sramek v Austria (1984) 7 E.H.R.R. 351 [para, 42])

In July 2008 the Supreme Court delivered judgment in two separate cases addressing the same point: the need for the Gardai/prosecution to preserve all evidence pertaining to an alleged offence.

That this should emerge twice in the one month, in the Supreme Court is a measure of two things; the frequency with which the Gardai prematurely dispose of evidence and the sclerosis of the criminal prosecution system that it should so stubbornly cling to the determination to prosecute in cases where the accused claims to be disadvantaged in making his/her defence.

In the first case the accused was denied an Order of Prohibition restraining his prosecution HERE whereas in the second the accused was successful HERE. Here the prosecution eventually decided that the case against the accused turned on the fact that the tyres on his vehicle were defective. (He was accused of dangerous driving causing death). Having ascertained that this was the case against him he sought to have the tyres examined by a motor engineer of his choice. He was refused on the ground that the Gardai did not have the tyres any more. It transpired that they had been returned to the owner of the truck being driven by the accused and the owner had destroyed the tyres.

The title to this post is incorrect. The concept of war crime shows this. I have written elsewhere that legal proceedings are not a search for truth. Nevertheless, in legal proceedings, as in war, there are limits to restrain the parties.

The Supreme Court marked its disapproval of failures by lawyers for the Defendant in Philp v Ryan and Bon Secours [2004] IESC. The court found that the 1st Defendant had altered his clinical notes. As altered, they appeared to show that the Plaintiff was to have a PSA test in 6 weeks. In fact no provision was made for such a test. The Plaintiff, who was suffering from prostate cancer, was misdiagnosed by the 1st Defendant. Eight months later the Plaintiff discovered the misdiagnosis and issued proceedings pleading that his life expectancy was reduced due to the Defendants’ negligence.

The 1st Defendant misled his lawyers and medical advisors. Consequently the Defendants’ defence was to the effect that the Plaintiff was responsible for the loss of eight months treatment and not the 1st Defendant.

Almost on the eve of the proceedings commencing, the 1st Defendant informed his lawyers what he had done. They did not correct the wrong impression and understanding of the Plaintiff’s lawyers as to the defence the Defendants intended to mount. The lawyers for the 1st Defendant continued to represent, in the manner in which the defence was presented, that the Plaintiff had been advised to have a PSA test and had failed to do so. The Supreme Court found that there was at least a suspicion that there was a deliberate attempt to keep the true facts from the [High] court.

Consequently the Court awarded aggravated damages to the Plaintiff, increasing the High Court award from €45,000 to €100,000.

What amount of compensation will a plaintiff get from a court in an Irish personal injury claim?

The amount depends on the individual case. Damages are usually assessed by reference to “General Damages�? and “Special Damages�?. The former is to compensate for pain and suffering and the latter is to cover expenses and actual losses.

A stockbroker with a substantial income would undoubtedly suffer considerable losses under the “Special Damages�? head, absolutely and relatively. After all, if a claimant has suffered six months loss of earnings as a result of personal injury, a highly paid individual will have lost a greater sum in that six months than an individual of lesser earnings.

However, the pain and suffering of a stockbroker is not of greater “value�? than the pain and suffering of a binman (a garbage collector).

Thus, where the injuries of the stockbroker and the binman are comparable, they will, in principle, receive compensation of equivalent sums for pain and suffering.

In Sinnott v Quinnsworth [1984] ILRM 523 the Irish Supreme Court established a ceiling on the amount a plaintiff could be awarded in General Damages, that is, for pain and suffering. It fixed the sum, in 1984 at IR£150,000.

That, inevitably, began to be eroded with the passage of time.

Thus, in McEneaney v Monaghan County Council [2001] IEHC the court adjusted the ceiling to IR£300,000.

There was an indication from the Supreme Court in Nolan v Murphy [2005] IESC that the judge in McEneaney had, indeed, been conservative in the ceiling he applied in that case and in Nolan the Supreme Court, while reducing the sum awarded by the jury in the High Court awarded €350,000.

Thus, currently, the most that a defendant will have to pay, in Ireland, for personal injury (including psychological injury), regardless of severity of the injury, is approximately €350,000.