Medical negligence litigation is unlike litigation generally. The cases throw up arguments about causation the like of which do not appear elsewhere.

In Bailey v The Ministry of Defence & Anor. [2008] EWCA Civ 883, the plaintiff suffered brain injury due to hypoxia. She was in the care of the defendants and suffered a heart attack when she aspirated her vomit. The heart attack deprived her of oxygen.

She had been very ill for some time. The illness reduced her capacity to deal with the vomiting.

The defendants denied that the plaintiff, in her litigation, had proved that anything they did or failed to do had caused her injury.

In fact the trial judge had found:

“One component was the weakness engendered by the pancreatitis, the other was the weakness engendered by the consequences of the negligence on 11 – 12 January, which led to a very stormy passage for the Claimant ending (purely from a surgical point of view) on 19 January when the packing of the liver was removed. Even leaving out of account the independent effect of the pancreatitis, it defies all common sense to say that she had recovered from the effects of all that by 26 January. I am satisfied, on the balance of probabilities, that she had not and that she was weakened as a result.”

The immediate cause of her injury was aspiration of the vomit; however she had been weakened and her cough reflex was unable to deal with that. The weakness followed from, inter alia, acts of negligence occurring during her care by the defendants.

The court in finding that this had contributed materially to the immediate cause of the injury found for the plaintiff against the defendant.

See an earlier post HERE on the subject of defective motor cars.

In 2007, the High Court gave judgment (seen HERE) in a case where the consumer had the benefit of a warranty, given to him on the purchase of the car, that it would return not less than 50 miles to the gallon.

In fact it did and it did’nt. It did’nt when the Plaintiff was driving it; it did during two fuel consumption tests carried out by a motor engineer engaged by the importers of the motor car.

The court accepted the evidence and records of the Plaintiff as to the consumption of fuel and found the defendant was in breach of contract.

However, it had taken a long time to resolve the matter and the Plaintiff had run up over 50,000 miles on the car. He sold it and therefore could not be awarded a rescission of the contract.

The court said:

“The issue to be decided is what damages the plaintiff should be entitled to recover. He has sold the car now, and he had the use of the car since January 2003 until March 2006 and he travelled 56,000 miles in it over that period. In my view the level of damages cannot equate to the cost of the car less what he sold it for, or less that what he ought according to the defendant to have been able to sell it for, namely about €18,000. That would be unfair to the defendant, since there was not a complete failure of consideration.”

Damages were the appropriate remedy, calculated in the sum of €6,625.

(The High Court was on circuit and the case was on appeal from the Circuit Court. The sum awarded was just over the upper limit of the jurisdiction of the District Court and therefore properly (just) within the Circuit Court jurisdiction. The outcome allocated the costs of two expensive proceedings. The costs would have been at least twice, and probably three times, the compensation. Litigation is dangerous).

It is a source of additional worry (above the prospect of unemployment) to employees who have been injured at work, to find that their employer is insolvent.

The reason for that lies in the fact that, in Ireland, only a party (the employer) to employers’ liability insurance may sue an insurance company for an indemnity in respect of a claim made against the employer.

In addition, in the general law of insurance, any money paid to the insolvent employer by the insurance company would become the property of the insolvent company and would be swallowed up in the insolvency.

To avoid this, the Oireachtas legislated in Section 62 of the Civil Liability Act 1961;

62.—Where a person (hereinafter referred to as the insured) who has effected a policy of insurance in respect of liability or a wrong, if an individual, becomes a bankrupt or dies or, of a corporate body, is wound up or, if a partnership or other incorporated association, is dissolved, moneys payable to the insured under the policy shall be applicable only to discharging on full all valid claims against the insured in respect of which those moneys are payable, and no part of those moneys shall be assets of the insured or applicable to the payment of the debts (other than those claims) of the insured in the bankruptcy or in the administration of the estate of the insured or in the winding-up or dissolution, and no such claim shall be provable in the bankruptcy, administration, winding-up or dissolution.”

As a consequence of the Section a liquidator holds the money in trust for the insured employee and should pay it directly to the employee in the appropriate circumstances.

A breach of contract does not give rise to an entitlement to compensation for every loss sustained by a Plaintiff.

Some losses are deemed too remote for the Defendant to be held responsible for them.

A good example of this occurred in Balfour Beatty Construction (Scotland) Ltd v Scottish Power plc [1994] CILL 743.

The Plaintiff was constructing a concrete aqueduct over a roadway. It established a batching plant to provide the concrete on site, with the Defendant supplying the power to run the plant. The concrete had to be delivered in one continuous process; a hiatus longer than 30 minutes would prevent a re-start and would ruin the work and materials applied. The Defendant’s power supply failed during the batch run. The work done had to be undone and the Plaintiff had to start again.

The court held that the Defendant was not answerable for the cost of demolition and reconstruction because the Plaintiff had not informed it of the need for a continuous pour.

In O’Connor v O’Driscoll [2004] IEHC the Plaintiff was a bank executive who was injured in a road traffic accident (“RTA�?). The court made the following finding;

The case is highly unusual. The physical injuries sustained by the plaintiff were soft tissue damage to his neck and low back as well as some relatively minor damage to three upper teeth on the left side. The plaintiff in addition to these physical injuries also underwent a severe psychological reaction to the accident. Within a few weeks of the accident he developed a very serious Post-Traumatic Stress Disorder. He has also suffered from a major depressive illness and his condition has been complicated by generalised anxiety disorder.�?

The court awarded compensation of €579,225 which sum included €100,000 for pain and suffering to date and €50,000 into the future.

________________
In Hackett v Calla Associates Ltd [2004] IEHC the court found that the Plaintiff had suffered the loss of the sight of his eye with associated scarring ;

The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff’s visual acuity in the right eye states “Perception of light only (totally blind)”.

The court awarded compensation of €100,000

________________
In Higgins v Smith [2004] IEHC the Plaintiff was injured in an RTA. She was found to have the following injuries;
Multiple abrasions to her face; Fracture of the shaft of her right humerus with radial nerve palsy; Fracture of the left femur; Contusion and bruising to the right leg; Bruising over the right breast.

The court awarded her €130,000 for pain and suffering to date and €25,000 into the future. The actual award was for €147,250 following a reduction for contributory negligence.

_________________
In Curley v Dublin City Council [2004] IESC the Supreme Court affirmed the award of €350,461.72. by the High Court for compensation for personal injury loss and damage. Of that sum €75,000.00 represented general damages for pain and suffering.