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An IQ of 170

Guilt and fascination were the immediate responses to “Child Genius”. ((Channel Four, 8th February 2007)).

As one nine-year old boy, Dante, said, he did not want the TV crew to know too much about him. That was a case where the assertion of a right of privacy was fully warranted. ((Unlike here)) The children, after all, are not capable of giving full (any, actually) consent to the programme.

His clear thinking was impressive, sometimes in the face of difficulties, including parents struggling, by and large, to do the best for their children.

Not so, the thinking of the Director of Public Prosecutions.

The Director has a problem; he is worried that if the judges do not produce some kind of “tariff book of punishment” that the Oireachtas will do it for them. He says he is worried that the Oireachtas scheme will not be a pretty sight; that the judges would do a better job. Oddly, he seems to forget the existence of the Court of Criminal Appeal, a court with two High Court judges and a Supreme Court judge sitting on it, and its obvious role as a mechanism for setting parameters for punishments.

The Oireachtas scheme of things, apparently, would establish mandatory sentences for offences, without regard to the particular circumstances of the offender or even, possibly also, the offence.

The judge-made scheme, he implies, would be different; it would introduce uniformity.

Mandatory, bad; uniformity, good.

Oddly, again, he cites the example of the USA, to show the evils of the very thing he is encouraging the judges to do; applying mandatory (sorry; uniform) sentencing of offenders.

Perhaps the judges are aware of the opinion of a lawyer from Antiquity, “The strictest law often causes the most serious wrong.â€? ((Cicero (106 BC – 43 BC))

To be or not to be? Is that the question?

Remind me- exactly what was rotten in the State of Denmark?

Judicial Discretion

We know so little. The human mind is still a mystery. We construct hypotheses to carry us over these unknown terrains, the hypothesis being intended to carry the endorsement of the communal wisdom. Inevitably, it represents the conventional wisdom, but that may be the price we pay in setting up human institutions like a court.

This presumed-to-be-correct “knowledgeâ€? often appears in the exercise of judicial discretion. We expect the judge to apply those fine judgments for which no prescribed rules can be laid down in advance.

Far below this level of deployed skill or judgment, lies the expectation that the judge will follow fair procedures; rules of court, or the provisions of the Constitution. If we are disappointed in this expectation we look to Judicial Review for a remedy.

If this happens frequently that fact will become obvious from the state of the High Court judicial review list. Would this not be a matter of proper concern to a judicial disciplinary tribunal?
Serial Judicial Review applications do not seem to be an adequate institutional response to such a problem. Of course, the State might decline to meet the costs of these cases ((and consequentially the Judge will be liable)) but, it appears more appropriate that a Judicial complaints body should deal with this.

When will Ireland get such a body?

Law Professors’ blogs

Should law professors blog?

Certainly, subject to a prior, professional equipment, check:generally,
all sentient, carbon-based lifeforms are qualified.

Professors, having surveyed your premises (in space, not in logic) and discovered the absence of this, go ahead. (“this”, refers to the first item on the list)

Medical Negligence – Obstetrics

The practice of obstetrics is somewhat different to other medical specialities in that the “patients”, the mother and baby, are healthy when they come under the care of the specialist. (This may not be strictly accurate; it is estimated that about 1% of babies have some form of defect).

Nevertheless, the specialist is answerable for any error of medical management in the care of one or both of the patients. See here.

There is a strong body of opinion that the medicalization of birth is damaging to mothers and babies.
There is a similar opinion relating to the practice of modern medicine generally. ((“Medical Nemesis” Ivan Illich; Calder & Boyars Ltd.1975)) The worst outcome of an error in management is cerebral palsy in the infant. Cerebral palsy is a condition or symptom, not a disease.

If the medical management of the birth is the cause of this condition, the obstetrician is liable for the injury. The level of compensation will not be minor.

However there are many other mishaps or conditions for which the obstetrician may be answerable. In every case, the proof of fault lies on the Plaintiff, the infant.

1.    Even if the mother is suffering from some defect, say pre-eclampsia, it may be the responsibility of the obstetrician to discover the defect in time before the infant is injured. The reason for the hesitation in attributing responsibility to the obstetrician to diagnose pre-eclampsia is the difficulty in doing so. Hypertension and proteinuria are necessary for a diagnosis. Unusual swelling, particularly of the hands, feet or face, may be an indicator. The condition is very serious.

2.    The baby may experience actual injury, including cerebral palsy, brachial plexus injury, facial scars or other soft tissue injuries, fractures of the skull or limbs. With the exception of the first of these, the injury will have been inflicted in the process of giving birth, typically from the obstetrician’s instruments.

Generally, however, obstetrician error is more often a failure to do something, that should be done, than to inflict direct injury.

An obstetrician is expected to detect or take account of, among other things:

a) Fetus infection (such as rubella);
b) Poor presentation of the fetus or any abnormality of the fetus or the circumstances of birth;
c) Factors indicating a high risk birth;
d) The well-being or otherwise of the fetus;
e) Placenta praevia;
f) Umbilical cord prolapse or mis-presentation;
g) Changes in the fetal heart rate;
h) The obligation to have anaesthetic and paediatric help available if necessary

Presentation

Proper presentation means the baby descends head first. Poor presentation may result in shoulder dystocia of the fetus. The fetus will require manipulation to avoid the obstruction and injury. Breech presentation happens when the baby is descending buttocks first instead of head first.

Infection

If the mother is infected by German measles, normally a mild disease, its effects on the baby may be severe. It is essential to monitor the situation and act swiftly in the event the infection is detected.

High risk birth

Poor presentation will indicate a high risk birth. A transverse lie, for instance will increase the chances of, and may lead to, umbilical cord prolapse. If the cord emerges before the baby, the blood vessels in the cord may go into spasm if touched or on meeting the relatively cold ambient air. If this happens, the baby is immediately at risk of hypoxia and consequent cerebral palsy. A high risk birth will exist where there is Rhesus incompatibility between the blood of the mother and the blood of the baby. It is the responsibility of the obstetrician to detect Rhesus incompatibility.

Anaesthetic and paediatric help

If a Caesarean delivery is required or the baby is born after a period of fetal distress either or both anaesthetic and paediatric help may be required. Arrangements to have that happen must be made in advance.

General misjudgment

If the obstetrician or the midwife/nurse is furnished with ,or compiles, inaccurate medical records the errors that can result will very likely injure the baby. There is an obvious duty to ensure that complete accurate records on the mother and baby are maintained and are to hand.

Misjudgment of timing

The obstetrician may recognise the salient factors to be taken into account but may make an error as to when he or she must act on that knowledge. If the action is wrongfully postponed and the baby is injured the obstetrician will be liable.

Traction

If the infant is not emerging readily the obstetrician may have to pull the baby out. The traction must not be excessive; the infant can be easily injured.

Monitoring

The mother must be monitored to ensure that fetal distress is not missed. Changes in the fetal heart rate are an indication of fetal distress. That distress may lead to hypoxia and cerebral palsy or death.

Instruments

If the doctor uses improper instruments and injures the baby, regardless of the reasons for the use of the instruments, liability will lie.

Nurses

It is the obligation of the doctor to ensure that the nursing staff have the correct supervision and access to necessary advice.

Personal Injury Claims Part 2

Personal Injury Claims Part 1 is available.

Should Ireland adopt the New Zealand system?

Perhaps. It has been seriously mooted in relation to medical negligence claims. No Irish Government has ever hinted at the possible adoption of the full scheme.

Should Ireland avoid such a system?

Possibly. The total number of injuries and illnesses, sustained at work, for 2003 was 100,700. Most of these involved absences from work for 3 days or less. Any scheme would mean that these people would receive compensation.

Were these 100,700 people compensated?

Probably not. It is very stressful to take proceedings in a court for any reason, including personal injury. Most people would forego the stress if they did not suffer a loss of earnings from the absence from work. In the absence of preparations to issue proceedings, insurance companies insuring employers practically never offered or paid compensation to injured workers.

Did the Irish Insurance Industry suffer losses due to claims?

Reputedly it did. However, the reports of such losses, and the attribution of responsibility to “high claimsâ€? reaches back a long way, at least to the mid-‘80s. The industry had blamed the use of juries in the High court for hearing personal injury actions with judges. It promised to reduce premiums if the juries were abolished. The Government complied and the premiums remained the same. In 1991, Dessie O’Malley the Minister for Industry and Commerce proposed a “Compensation Boardâ€? to determine “properâ€? levels of compensation for injured persons (in road traffic cases apparently). At that time there were many reasons for “lossesâ€? in the insurance industry besides “high claimsâ€?. An analysis by Business & Finance magazine based on the then current official statistics for the industry (published by the Government) showed that the average cost of road traffic claims settled by the insurance companies (with one exception) was under £2,500. Few personal injury cases would fall into this category; many property-damage-only claims would. This was evidence that the vast majority of the claims and the compensation paid related to those kinds of claims and not to personal injury claims. Then, as now, the cost of motor vehicles and their parts are relatively high in Ireland. This would go to explain any difference in premiums and claims costs for road traffic cases in Ireland relative to other jurisdictions. This is further supported by the fact that the European Consumers Group found, then, that Irish vehicle insurance premiums were double that of Germany, although the level of compensation for personal injury was about the same. No High court jury would ever have had an effect on property-damage-only claims. That’s probably the reason the premiums remained the same after the juries were abolished. That this view of Irish claims experience is correct receives validation from the ratio derived by H.W. Heinrich for accident analysis. For every serious accident there are many small accidents; for every small accident there are many near misses. See the diagram of the pyramid in this NASA strip.

Is there such a thing as the “Irish Insurance Industryâ€??

Arguably no. To insist there is, is to disregard the re-insurance industry. Above the retail insurer there are layers of insurers with whom the retail insurer lays off some, or even all, of the risk (and the premium). This re-insurance business involves some of the biggest insurance companies in the world. Inevitably they carry the biggest risks. The retail premium is not necessarily calculated solely by reference to the risk the insured represents; it must be calculated to ensure the pyramid of insurers stays in business. Therefore a big loss must be met by increased premiums. But that loss might occur far away, for reasons unconnected with the insured. Therefore an increase in premiums is not necessarily correlated with anything in the Irish economy, including Irish insurance claims experience.

How much does it cost to pay an insurance claim?

This may be a surprising question, but, in principle, the answer should be, say, “90% of the administration cost required to make the paymentâ€?. This would mean that most of the premiums paid are paid on claims and a small percentage is spent on administration and profit for the insurance company. In fact one estimate ((The Forensic Lottery; Terence G. Ison; Staples Press, at p. 210)) of the cost of administration in insurance comes in at 95.75% of claims paid out. So, only a tiny percentage of the premium is paid on claims and a huge percentage is spent on administration and profit for the insurance company.

How much does it cost to knock the eye out of a Londoner?

Currently, £35,000 (approx.) (€53,139.44). If you inflict a permanent limp on him it will cost £15,000 (approx.)(€22,774.04)

How does that compare with a Dubliner?

For him, the costs will be €100,000 (approx.) and €50,000 (approx.) respectively..

What is the explanation for these differences?

A thesis awaits its writing, but the easy answer is that Ebenezer Scrooge was British.

Nevertheless, is it not true that Irish compensation levels are relatively high?

Relative to what? In the USA compensation seems to be very high. In the UK it seems to be too low. In Germany it seems to be equivalent to Irish levels. The truth is that it is not valid to make these comparisons. In the USA a successful plaintiff must still pay his own legal costs, unlike in Ireland and the UK where “costs follow the causeâ€? and the losing defendant must indemnify the successful plaintiff for his costs. US juries take this into account in awarding compensation. In France a specially trained doctor assigns the injury to a category or type and assigns a degree of incapacity, whereupon a judge awards compensation on the basis of the category into which the injury falls. The court does not assess actual financial loss but awards an arbitrary figure. Of course none of these jurisdictions are constrained by provisions of the Irish Constitution, unlike Irish Governments and courts.

How many rich people have benefited from such compensation?

Rich before they claimed, or rich as a consequence? In Ireland, the Constitution states:
“Article 40
1. All citizens shall, as human persons, be held equal before the law.�

This means that wealth or poverty is irrelevant to a plaintiff’s claim for compensation for personal injury. Therefore it is not known how many rich people have successfully sued for personal injury. It could happen that a rich person is injured, particularly in a road traffic accident. Such a person is unlikely to be injured at work; rich people tend not to earn their living in dangerous occupations.
It cannot be correct to say of a person who receives €100,000 in compensation for the loss of an eye, that he has become rich. Plaintiffs who are awarded larger sums tend not to be able to enjoy the money because they are too badly damaged by the injuries for which they have been compensated.

What about the “compensation cultureâ€??

This is an urban myth, and a term of abuse and is, essentially, a denial of the right to vindication of bodily integrity under the Constitution. In fact it is rarely expressly used so openly. Being of indeterminate meaning it is often impossible to know if the speaker, in using the term, is denying the constitutional right to compensation or suggesting that it is a reference to fraudulent claims only. The Department of Constitutional Affairs in the UK has defined the phrase “compensation cultureâ€? as follows:
“The Government is determined to scotch any suggestion of a developing
‘compensation culture’ where people believe that they can seek compensation for
any misfortune that befalls them, even if no-one else is to blame. This misperception undermines personal responsibility and respect for the law and creates unnecessary burdens through an exaggerated fear of litigation.� ((see www.dca.gov.uk)). Nobody in Ireland has ever defended the making of claims in the absence of fault on the part of a defendant

Are there fraudulent claims?

Of course, there must be some. However, it is easy to misjudge the fumbling and bumbling of real life for fraud or wrongdoing. See this where the Supreme Court effectively recognised this.

Are these fraudulent claims undermining the “Irish insurance industryâ€? or some other part of the economy?

Most unlikely. It is essential to prove a personal injury in the course of a personal injury claim. Most such injuries are objectively real and easily seen by a treating doctor. No claim for personal injury will proceed far without some form of endorsement by a doctor. Furthermore, the circumstances in which the injury was sustained will have to be proved. This will usually involve corroboration of the plaintiff’s evidence by the evidence of other people. It is not easy to arrange such things as a fraud, although it is possible. As a crime it is deplorable, but as a social problem it is of insignificant importance.

What steps have been taken by the Government to tackle the “compo cultureâ€??

The Government has given no indication that it is simply trying to curb claims in the absence of fault. The courts system is adequate to do this. The Government, nevertheless, has introduced the Personal Injuries Assessment Board Act 2003 and the Civil Liability and Courts Act 2004. In each case the responsible Minister was Michael McDowell SC TD Minister for Justice Equality and Law Reform.

What are the effects of the Personal Injuries Assessment Board Act 2003?

It established the Personal Injuries Assessment Board, a body clearly corresponding to the intentions of Mr. Dessie O’Malley in his reference to such a Board in 1992. Briefly, injured persons must submit their claims for compensation for personal injury to the Board before they will be at liberty to issue proceedings in court if they, or the defendant are dissatisfied with the value assessed by the Board for their injury. The Board actively encourages the claimants to avoid lawyers. The running of time is suspended for the purposes of the Statute of Limitations after the Personal Injuries Assessment Board accepts the submitted claim details from the injured person. It is not suspended up to that point in time and commences running again after the Personal Injuries Assessment Board issues a certificate permitting the injured person to issue court proceedings.

What are the effects of the Civil Liability and Courts Act 2004?

The effects are:
a) The limitation period under the Statute of Limitations has been reduced from 3 years to 2 years for “personal injury claimsâ€?. This means that an injured person must issue proceedings in court before the expiry of 2 years from the moment time begins to run on his claim. Time normally begins to run on the date of the suffering of the injury. If the proceedings are commenced after the 2 years, a defendant may plead the Statute of Limitations and if successful in that plea will have the plaintiff’s claim struck out. If that happens the injured person will receive no compensation for the injury or any financial cost or loss.

b) A new form called a “personal injury summonsâ€? must be used to commence proceedings. The required contents of the summons have been prescribed in detail and essentially the plaintiff must plead all the factual circumstances of the accident and the medical consequences of the injury in detail together with all citations of legal wrongdoing by the defendant.

c) A claimant in a personal injury action must swear and file an affidavit verifying the matters in the claimant’s pleadings. In practice “claimantâ€? will mostly mean “plaintiffâ€? and not “defendantâ€?.

d) An injured person must, at risk of being penalised on legal costs, serve a letter of claim on an intended defendant within 2 months (usually) of the beginning of the accrual of the cause of action. (Normally the date of the injury).

What is the likely effect of these Acts on persons suffering personal injury?

The Personal Injuries Assessment Board Act 2003 has raised a new process for an injured person to go through to get compensation. If he uses the services of a solicitor to submit the claim to the Personal Injuries Assessment Board, the defendant will not be liable for the costs so incurred by the injured person. The injured person must pay for those costs himself. The effect is to introduce a practice like the US system, where no costs are awarded by the courts; each party pays only his own. The process, at the least, introduces a delaying feature into the recovery of compensation. The Personal Injuries Assessment Board actively discourages injured persons from using the services of solicitors. This is a disservice to the injured claimants; under the Civil Liability and Courts Act 2004 an injured person must serve a “letter of claimâ€? within 2 months of the accrual of the cause of action. This means the injured person needs the solicitor to draft that letter to comply with the Civil Liability and Courts Act 2004. Arguably, that letter will precede the application to the Personal Injuries Assessment Board.
The Civil Liability and Courts Act 2004 is much more inimical to the interests of injured persons than the Personal Injuries Assessment Board Act 2003. The requirement to fully plead the matters stipulated for the personal injury summons will normally mean the postponement of the date on which proceedings will be commenced. Taken with the shortening of the limitation period from 3 years to 2 years, many injured persons will be at risk of being caught by the expiry of the period and lose the right to compensation. The calculated effect of the provision requiring the service of a letter of claim within 2 months, at risk of suffering penalties on costs, will be to further approach the US system where each party pays his own costs (but without the US practice of assessing damages to effectively provide for the costs).

What about the reduction in fraud?

There has never been evidence of widespread fraud perpetrated by personal injury plaintiffs. It seems wrong that such fraud as there surely must have been (and probably still is) is should be tackled by treating all plaintiffs as if they are fraudsters, just to catch the few that probably exist.

Apart from persons injured in road traffic accidents and accidents at work, is there any other significant group of persons suffering actionable personal injury?

Yes. The Minister for Health and Children, Mary Harney, has confirmed that 100,000 patients (approximately) are injured (as in “personal injuryâ€?) by the Irish medical system annually.

Who is liable to compensate for those injuries?

Normally the Irish State in the form of the Minister’s Department or its agency the Health Service Executive.

Has the State found itself previously liable for multiple claims of personal injury inflicted on citizens?

Yes. The Department of Defence consciously decided not to purchase ear defenders for its soldiers on grounds of cost. The soldiers suffered foreseeable hearing loss and claimed compensation for the neglect of the Department. Also, the National Blood Transfusion Services Board was negligent and the State was obliged to establish a system of compensation for the claims arising from that neglect.

Will the shortened limitation period apply to any future cases against the State?

Yes.

Naming & Shaming

The City of Derry wants to change its name. Actually the Derry City Council wants to change the name of the city, but the courts have ruled that they can’t do that because Charles II of England changed the name of the city from Derry to Londonderry by charter in 1652. (Note that the Council had changed its own name). The court went on to advance a questionable proposition; that the name could be changed by a change in the law, or by the Queen of England on receipt of a petition to that end.

At risk of contradiction by experts in the British constitution (has that been located yet?) it is most unlikely that the Queen would claim such a role or welcome the delivery of the petition regardless of her views on the two competing names, or her predecessor, Charles II.

A change in the law is a better suggestion.

The Law Society of Ireland had its name changed under Section 4 of the Solicitors (Amendment) Act 1994. The Society was formerly known as the Incorporated Law Society of Ireland. Like the Royal College of Surgeons in Ireland, it is an incorporated body under charter (in the case of the Law Society, a charter from Queen Victoria in 1854). These two chartered bodies are unusual in Ireland in not being semi-state bodies; not being subject to the provisions of the Companies Acts 1963-2003 and not being subject to oversight by the Oireachtas or, effectively, the Competition Authority (as currently operating).
Changing your name is normally charged with meaning. The trick is to find the meaning.

Kristian von Hornsleth made a general offer to the residents of a village in Uganda to gift them each a pig or a sheep if they adopt his name. Edith Hornsleth Babirye defended this arrangement (relationship?) following receipt of her pig, which she plans to use to pay school fees.

If you are in Illinois and want to be a judge – change your name. (To “Oâ€?Brienâ€? it seems). Fred Rhine, look at this.

Minister of State Tony Killeen TD did not change his name but he has pleaded, effectively, a nomenclature malfunction. He denies responsibility for appeals in his name to Michael McDowell SC TD, for the early release of a murderer and, separately, a child rapist. The appeals were generated by a system established by Mr. Killeen; calculated to benefit him; written on his notepaper; purporting to be signed by him. A court would, on evidence like that, in a suitable case, convict him of conspiracy at least.

If he wants to change his name he needs to lodge a Deed Poll to that effect in the Central Office of the High Court.

The Law Society of Ireland didn’t have it that easy, it seems.

The Conveyancing Committee

The Conveyancing Committee is comprised of working solicitor members (working in private practice) brought together by the Law Society of Ireland to give guidance, and set procedures, in the resolution of questions that may arise in conveyancing transactions. Conveyancing is what lawyers do when transferring or mortgaging land or buildings.

The members are unpaid for their work. They are, of necessity, deeply involved in conveyancing practice and, of course, earn their living from doing so. They tend not to belong to the category of solicitor who seeks election to the Council of the Law Society.

The Conveyancing Committee oversees the production of the various editions of the Law Society General Conditions of Sale. These form part (hopefully) of every conveyancing sale transaction.

It also oversees the production of the Law Society’s Requisitions on Title. These form an indispensable check-list of questions to be answered by the vendor or mortgagee in a conveyancing transaction.

The Conveyancing Committee is an important body; its work is known to the legal profession (and the judiciary) but unsung in public.

I have a soft spot for the Committee, having found no response to my assertion to colleagues that Professor Farrand cracked jokes in his book “Contract & Conveyanceâ€?; dry jokes, admittedly.

It’s lonely, being a conveyancer.

MRSA: Free Public Conference at RCPI

Deirdre Donegan of the Royal College of Physicians in Ireland alerts us to their upcoming public meeting on healthcare-associated infections (including MRSA).

Running as part of the “Promoting a Healthy Nation” series of discussions the details from the RCPI website are;

15th FEBRUARY 2007, starting at 6.00pm in the RCPI, 6 Kildare Street, Dublin. Dr. John Bowman will chair the meeting. Speakers include Prof. Hilary Humphreys, RCSI and Consultant Microbiologist at Beaumont Hospital, Mr. Stephen McMahon, Chairman of the Irish Patients Association, and Ms. Eithne Donnellan, Health Correspondent with the Irish Times. 

Attendance is open to everyone, and is free. All you have to do is fill in a registration form (available in pdf here, or in Word doc format here) or email [email protected] with your details.

The Richmond Hospital

The Richmond Hospital in North Brunswick St. has a new phase of life as a District Court building.

It’s a fine two story building of red brick and terracotta with two wings on either side of a fine staircase to the entrance.

Court 52 is clearly occupying what was once a hospital ward; broad and well lit, with gracious ceiling height in proportion to the size of the space.

The structure inspires confidence in its developers, the medical men (and women?) who brought it into being. There would have been no surgical swabs left unforgotten by those people in a patient after the scalpel wound was sewn up. They also believed in the germ theory of disease.

This sense of carefulness and planning can be seen in the title documents of the premises. I acted for a potential unsuccessful purchaser when it ceased to be a hospital and was offered for sale.

The Hospital trustees had been very careful over a long period of time and never failed to use the services of a good surveyor or cartographer. In addition they had been compelled to assemble the site painstakingly, each sliver of land (particularly on the road frontage) being carefully mapped and associated with its title deeds.

Again, thanks to the same people, it now helps to bring a civilized tone to what can be a stressful process (even for the lawyers).

Let Them Eat Cake

Before 200 asylum seekers in direct provision accommodation in Limerick/Clare commenced a hunger strike (Irish Times 30/1/07) did the Department of Justice Equality and Law Reform receive any prior inkling of their complaints?

The complaints are, inter alia;
a) In meals the “customersâ€? find hair strands; pieces of broken plastic and particles of shells.

b) One toilet roll a week is allocated. Experience, shows this is inadequate.

c) Lack of cleanliness

This is a no-brainer. If it were a prison, the visiting committee would vouch the facts. The Department has been criticised previously for whimsical variation in the quality of direct provision.

The Department has, with regard to children, acknowledged its obligations to ensure that proper provision be made under its schemes or systems.

Does anyone ever answer for this kind of situation?

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