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 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.

Insurance has a strange aspect which we often overlook; we are happy that we did not need it.

We do not think that the premia paid year after year to insure our house is wasted money. After all, we do not want our house to burn down; we just want to rebuild and restore it if it does. So, we pay a small sum of money to meet the possibility of having to pay the much larger sum if the house does burn down (or suffer some other form of damage).

Sometimes the question of what is a proportionate sum to pay as a premium to cover the perceived risk has to be publicly determined.

In the UK, unlike Ireland, there is anxiety that justice should be facilitated. By “justice” is meant the ready and easy opportunity to go to court seeking a remedy without being prevented by extraneous causes, like poverty. Poverty is relative; most people in Ireland would consider the costs of a High Court action (or even a Circuit court action) beyond them.

Consequently, the UK authorities have facilitated schemes intended to achieve this end.

One such scheme is to allow lawyers who work on a “no win, no fee” basis to charge a significantly higher fee when they are successful, and provide that the losing party has to pay that higher fee as a matter of course.

Another is to recompense a plaintiff his or her insurance premium for “After The Event” (ATE) insurance. This is insurance taken out to, effectively, help pay for some of the litigation costs of the plaintiff/insured.

Section 29 of the UK Access to Justice Act 1999 provides:

“Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.”

Inevitably, the losing defendants (other insurance companies) took issue with the premia being charged for the ATE.

HERE ‘s the outcome of that dispute.

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.

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).

Just before Christmas, Ireland suffered a number of flooding instances. They did not all have the same cause and cannot all be termed “acts of God”. (Few events in Ireland would qualify in that category).

Dempsey v Waterford Corporation [2008] IEHC featured a case of flooding causing, the Plaintiff alleged, an actionable nuisance. In the case the Defendant was found not to be liable, principally because it did not know of the existence of the sewer from which the flooding came. The law of nuisance requires that the nuisance be caused by the Defendant or be continued by the Defendant after gaining knowledge or means of knowledge of the nuisance. (In short, if the Defendant did not know of the nuisance but ought to have known of it, he will be liable.)

Nuisance does not require proof of negligence on the part of the Defendant. It does not require the Plaintiff to prove the Defendant caused it. It requires the use of land or adoption of use, detrimental to the Plaintiff’s use of his land.

The nuisance is complete if the “use” is complete; in short, the arrival of rain water is not necessary to complete the nuisance, just the conditions on the land that will and do cause the flooding. A blocked or inadequate culvert would qualify, for instance, as a nuisance.

When the Plaintiff proves the nuisance, the onus to exculpate himself falls on the Defendant.

The remedy for nuisance can extend beyond compensation to injunction. The compensation will be an amount sufficient to put the Plaintiff back in the condition he/she was before the wrongful event.

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.

Legal proceedings claiming compensation for personal injury (including injuries due to medical negligence) must commence within two years of the commencement of the running of time against the injured person.

When does time begin running?

It depends on the facts of the case.

The Irish Medical Council has published Guidelines to doctors that they may be convicted of medical malpractice if they are not open to the patient or the family of the patient in the event of error.

This is good. It is good for two reasons; firstly, the Council’s ruling (although not entirely selfless) will allow injured persons to access legal advice promptly after an error (and retrieve evidence before it is lost).

Secondly, the situation referred to in this earlier post of McGarr Solicitors can be avoided. The situation was one where, due to the deceit of a doctor, the Statute of Limitations did not begin to run against a patient until she could find out about the injury and the full, true, circumstances in which it was inflicted.