Call McGarr Solicitors on: 01 6351580

Home » Blog » MRSA

MRSA –Legal Burden of Proof?

A civil action against a medical practitioner or a health care facility will throw an immediate burden of proof on a Plaintiff in such an action.

Some obvious burdens would be the obligation to prove injury and to prove the existence of a duty of care on the part of the Defendant.

The difficult element would be to prove the breach of the duty. The fact of the injury is not proof of the breach. Essentially, in principle the Plaintiff will need to prove the chain of causation leading back from the injury to some default of the defendant. The Plaintiff will also have to prove the injury was a foreseeable consequence of the breach of the duty.

All of this flows from the principle “he who asserts, must proveâ€?.

There is however a practice permitting the reversal of the burden of proof in some circumstances.

That is generally stated as arising where the matter is peculiarly within the knowledge of the Defendant.

In Rothwell v Motor Insurers Bureau of Ireland [2003] 1 IR 268 Hardiman J. reiterated this by requiring that it be “peculiarly within the Defendant’s capacity for proofâ€?

On the facts in Rothwell this was reasonable; neither the Plaintiff nor the Defendant were privy to the circumstances where an oil slick was on the public road. An unknown driver had deposited it there (it seemed) and the Supreme Court found that the burden of proving its deposition by negligence lay on the Plaintiff and did not shift to the Defendant to disprove.

Regarding the contraction of a nosocomial infection such as MRSA, a number of causative factors have been postulated as being the ground or source of such infections. In the absence of direct sampling in a particular case, linking, say, the infected patient’s nosocomial infection with the unwashed hands of a nurse or a doctor, or the presence of MRSA in the bed or on the utensils being used to treat the patient, only the fact of infection and the proof of known and provable defaults in hospital hygiene may be available to the court to make a judgment upon.

A health care facility must be taken to be the master of its infrastructure. Therefore, unlike the defendant in Rothwell, it is open to it to disprove an inference of negligence arising from proof of infection of the Plaintiff and proof of general deficiencies in hospital hygiene. Recent references to the “obligationsâ€? on visitors to patients regarding hygiene may be directed more at establishing a plausible basis for undermining such an inference than at seriously seeking to protect patients. After all, who has ever proved a visitor infected a patient?

Essentially advancing the case for making such an inference is an appeal to make a judgment based on circumstantial evidence. There is nothing deficient in such evidence. It is relied on in circumstances where, in the light of logic, experience and common sense a reasonable person may determine an effect is more probably caused by negligence than not.


  1. Ed, it appears that Peculiar knowledge Principle is sometihng that is becoming less and less an issue in academic texts and indeed practice.

    The below cases are all fairly old and based on PKP, in both Civil and Criminal terms.

    Min for Industry and Commerce v. Steele
    McGowan v. Carville
    AG v. Shorten
    R. v. Edwards
    Miller v. Minister for Pensions
    AG v. Byrne
    DPP v. Short

    Do you have any further comments on the PKP and whether its something that is an open door with regard to debate.

    It guess its also necessary to note the differences between proofs depending on the type of case, Civil vis Criminal.

  2. Ronan,

    The application of the concept will depend on the facts of the individual case.

    Of course there may be a less receptive audience to the concept currently, as evidenced by the considerable difficulties for Plaintiffs raised by the changes to Order 31, Rule 12 of the Rules of the Superior Courts pertaining to Discovery of documents, as inserted in the Rules by Statutory Instrument 233 of 1999.

    A judiciary which makes great efforts to restrict access to documents in the possession of Defendants (the effect of SI 233/99), will be unlikely to embarrass the Defendant with a presumption, even contingently.