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The Medical Expert

Contrary to conventional thinking, the critical conversation in the initial stages of a Medical Negligence* action is, often, not the conversation of the client with his/her solicitor, but the conversation of the solicitor with an expert.

This is definitely the case in medical negligence actions.

The issue in a medical negligence action is whether the defendant deviated from approved or appropriate practice. It is an error, usually, to think that the plaintiff will succeed if he/she proves that there would have been no injury had the defendant followed a different course of action. (The exceptional case where it would not be an error would be one where the court was persuaded that the conventional practice carried such obvious defects that it was indefensible and where the court effectively condemns the defendant and the practice.)

Thus, in the conversation with the expert, the solicitor is assessing the likelihood of the success of a defence claiming conventional merit for the defendant’s actions.

Incidentally, the solicitor is also required to make an assessment of the quality of the expert.

Sometimes the quality of an expert shines out.

Often, in the conversation between the solicitor and the expert, the expert is not aware of any body of opinion supporting the defendant’s actions. This implies a criticism either of the expert or of the defendant.

It is the solicitor’s job to correctly judge whether the expert or the defendant is wrong.

Tough Times?

For solicitors in Ireland income from conveyancing has “fallen off a cliff”. Solicitors practicing in that area were very likely to have taken an investment share in some development or other. (There is a marketing opportunity here for tee-shirts; “the devil made me …..” (insert suitable words)).

For some, the black hole of bankruptcy may loom. (A bankrupt may not practice as a solicitor in Ireland). That aside, these entrepreneurs can hold their heads high; after all, Ireland itself has too much debt.

They cannot, however, flee to New York to practice law. They appear very strict on debt levels for lawyers there.

Mr. Robert Bowman was assessed by a committee of New York lawyers on his application for admission to the New York bar. He passed with flying colours.

His creditor, it seems, was not so happy. Mr. Bowman had a heavy student loan outstanding. In the way of creditors (some) they did the counter-intuitive thing; they appealed the committee’s decision, successfully.

Five judges thought he was unworthy to practice law. As George V. Higgins has remarked; “ … a judge is a guy who used to be a lawyer”.

So, the former lawyers may just possibly have done Mr. Bowman a favour. He has now become a plaintiff, with his creditor as his defendant, and has challenged the judges’ decision.

It appears that he does not, in law or otherwise, owe all the sums claimed by the creditor. The creditor has, it appears, “churned” the debt, doubling it in size over just two years.

Mr. Bowman has appeared, photographed, in “the New York Times” with a complimentary CV attached.

Lucky breaks arrive in strange circumstances.

Back Injury

Accidents from errors in manual handling are the commonest source of injury in Irish workplaces.

If such an injury happens it invokes, potentially at least, the assessment of the event from the perspective of the duties of employers regarding such events. Chapter 4 of the General Application Regulations 2007 (SI 299/2007) particularly apply.

Any injury may result for these errors, but back injury dominates.

An employer is obliged

a) to seek alternative methods to manual handling;
b) to keep any such alternatives in working order;
c) to train staff in the techniques of manual handling as required;
d) to up-date training where this appears necessary;
e) to ensure that staff do not lift weights heavier than those stipulated in the weights guidelines (Health and Safety Authority);
f) generally to assess the risk where manual handling is unavoidable

Below are whimsical examples of pleading in a personal injury claim. The pleadings are not in order and do not conform to current pleading requirements for personal injury actions. Nevertheless they reflect the strange world of conflict in a personal injury lawsuit.

2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

STATEMENT OF CLAIM

Delivered the 1st Day of April 2009 by
Skin & Bone Solicitors for the plaintiff
of Victory House Broad Street Dublin 1

1. The Plaintiff is a housepainter and he resides at 54 Shady Lane Rathcormac Dublin 10.

2. At all material times hereto the plaintiff was employed as a painter at the defendant’ s plastic-coated fabrics factory at Leafy Hollow Rathcormac Dublin 10 which said premises is owned and managed by the defendant.

3. It was a term of the said contract of employment between the plaintiff and the defendant and/or it was the duty of the defendant to take all reasonable precautions for the safety of the plaintiff while he was engaged upon his work, not to expose him to a risk of damage or injury of which they knew or ought to have known, to provide and maintain safe and adequate and suitable plant, tackle and appliances to enable the plaintiff to carry out his work in safety, to take all reasonable measures to ensure that the place where he carried out his work was safe and to provide and maintain a safe and proper system of work.

4. On or about the 1st day of March 2009 the plaintiff was in the course of his aforesaid work, lifting a roll of plastic- coated fabric when he injured his back. In descending a set of steps immediately following his back injury the plaintiff slipped on the said steps and lost his footing and fell down several steps, knocking over and burning himself with the contents of an open jar of hydrochloric acid which was standing at the bottom of the said steps.

5. The plaintiff injured his back, fell and burned himself with hydrochloric acid as aforesaid owing to the negligence and breach of duty on the part of the aforesaid defendant its servants or agents, in or about the management, maintenance and supervision of the aforesaid premises and the prevention of grave risk to the plaintiff.

Particulars of Negligence and Breach of Duty (including Statutory Duty)

A. Failed to provide the plaintiff with safe or adequate mechanical lifting equipment or assistance in the performance of his task of lifting the roll of plastic-coated fabric as aforesaid.

B. Failed to instruct the plaintiff in respect of safe and adequate lifting arrangements for the lifting of heavy or awkward loads.

C. Required the plaintiff to perform the said lifting operation without assistance.

D. Failed to take appropriate or any steps to obviate the said back injury accident.

E. Failing to provide any or any adequate lighting on the said staircase when they knew or ought to have known that the presence of slippy plastic or other foreign material was a common hazard on the said staircase which could not be spotted by the person using the said staircase in the absence of adequate lighting thereon;

F. Failing to take any or any adequate precautions for the safety of the plaintiff while he was engaged on his aforesaid work;

G. Exposing the plaintiff to a risk of damage or injury of which they knew or ought to have known;

H. Failing to provide a safe and proper system of work;

I. Failing to provide any or any adequate supervision;

J. Exposing the plaintiff to unnecessary and avoidable risk;

K. Failing to warn the plaintiff of the dangers presented by slippy plastic and other foreign material on the said staircase when the lighting thereon was inadequate;

L. Failing to provide competent workmates;

M. Failing to provide a safe place of work.

N. Leaving a jar of dangerous and corrosive chemical open where it might be spilled and injure the plaintiff especially in his distressed state.

O. Failing to warn the plaintiff of the dangers presented by the jar of hydrochloric acid on the said staircase.

P. Requiring or permitting the plaintiff to lift and move a load which was heavy and likely to cause him injury in breach of Article 68 of the General Application Regulations 2007 (SI 299/2007).

6. As a result of the aforesaid matters the plaintiff suffered severe personal injury, other loss and damage.

Particulars of Personal Injury
The plaintiff experienced severe pain in his lower back on lifting the roll of fabric. He suffered further pain on falling down the staircase further injuring his back and his right foot. On striking the jar of hydrochloric acid the contents spilled out onto both of the legs of the plaintiff and pooled about him as he sat on the landing. It burned his hands, legs, feet and buttocks.
The plaintiff was taken to St. Cuthbert’s Hospital where he was examined on arrival. He was conscious but in considerable pain. He had two degree burns on his legs and feet with three degree burns on his hands and buttocks. His burns were dressed and he was then X-rayed for his back and leg complaints. Soft tissue injury of his back was diagnosed and he was prescribed bed rest and physiotherapy as soon as the acid burn injuries allowed. A fracture of the cuboid was first suspected based on the X-rays of the right leg. The plaintiff suffered severe pain from his back at this juncture and was prescribed pain killers. The plaintiff was suffering from pain in the lower back region, radiating down the right leg. He was found to have restriction of movement in the lumbar spine together with tenderness in the right lower and lumbar and buttock region. Straight leg raising was restricted.
The plaintiff’s above injuries caused and continue to cause severe pain and discomfort. His capacity to enjoy his work and life generally has been severely diminished by his injuries. His complaints continue, may be permanent and the onset of adverse sequalae cannot be ruled out.

Particulars of Special Damage

Hospital Bills (unascertained and continuing)
Doctors’ Bills (unascertained and continuing)
Chemists’ Bills (unascertained and continuing)
Travelling Expenses (unascertained and continuing)
Loss of Wages (unascertained and continuing)
Damage to Clothing (unascertained and continuing)

Michael Soap B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Fat & Smooth
Solicitors for the Defendant
Corkscrew Lane
The Highway
Dublin 2

________________________________
2009 No. 123
The High Court

BETWEEN Joseph Brush Plaintiff

and

Plastic Surfaces Ltd. Defendant

DEFENCE

Delivered the 2nd Day of April 2009 by
Fat & Smooth Solicitors for the Defendant
Corkscrew Lane, The Highway Dublin 2

1. The defendant denies that the plaintiff was employed as a housepainter at their premises in Leafy Lane Rathcormac Dublin 10 as is alleged or at all.

2. The defendant denies that the plaintiff was lifting a roll of plastic-coated fabric as is alleged or at all.

3. The defendant denies that the plaintiff fell on descending the staircase as is alleged or at all.

4. The defendant denies that the plaintiff struck a jar of hydrochloric acid on the staircase or that same spilled on him as is alleged or at all.

5. The defendant denies that the plaintiff was caused to suffer, or did suffer, the onset of severe back pain as is alleged or at all.

6. The defendant denies that the plaintiff was caused to suffer an injury to his right leg as is alleged or at all.

7. The defendant denies that the plaintiff was caused to suffer burns to his legs, feet, hands and buttocks as is alleged or at all.

8. The defendant denies that the plaintiff suffered severe personal injuries, loss or damage as is alleged or at all.

9. If the plaintiff did suffer personal injury, loss or damage (which is denied) the defendant denies that the same was caused by the negligence or breach of duty of this defendant, it’s servants or agents, as is alleged or at all.

10. If the plaintiff did suffer personal injuries, loss or damage (which is denied) then the defendant says that the same was suffered or alternatively contributed to by the negligence of the plaintiff.

Joe Sunlight B.L.

To the Registrar
Central Office
Four Courts
Dublin 7

And:
Skin & Bone
Solicitors for the Plaintiff
Victory House
Broad St.
Dublin 1

Investment losses

1. It is arguably mistaken to anticipate professional negligence actions arising from the “Credit Crunch”. The professionals will be stockbrokers, bankers or money advisors of one sort or another in the financial services industry.

2. All of these professionals are connected to their clients by contract. The contracts cite “terms and conditions”, frequently alluding to the fact that they, no more than any professional do not guarantee a particular result.

3. What they are obliged to provide, however, is a competent careful discharge of their obligations. This covers the “duty of care” in tort law, but also any contractual or other obligations they carry.

4. In the field of Finance those obligations are considerable. They appear as contractual duties, fiduciary duties, duties of confidentiality, statutory and regulatory duties.

5. A fiduciary duty involves avoiding a conflict of interest, for instance. This is an absolute duty; it does not imply a need for care. Either there is a conflict or there is no conflict.

6. The claim of the professional that he “made a house call” will not be accepted where there was a conflict of interest between the “house” and the client.

7. The fiduciary’s duty is often expressed an obligation or duty of loyalty, but in practice inhibits behaviour which would be acceptable in other circumstances. A fiduciary is not free to follow his own interests; the interests of the client/beneficiary comes first. A fiduciary is not free to make a profit from his role; any such profit belongs to his client.

8. Many of the duties of a fiduciary are now imposed on professionals in the financial services industry as regulatory norms. Even if they are not available to be cited as the basis of a breach of duty, these regulatory norms are readily available to determine the implied contractual duties of the professional.

9. The Credit Crunch generated unprecedented circumstances for many large firms in the industry. Those are the circumstances where things are done which should not be done. In many instances, to recover losses, it is simply a matter of collecting the paper trail and instructing solicitors.

Civil Justice

In the UK they purportedly reformed the system of civil justice with the Woolf Report. There is some reason to doubt this.

Now, a debate has started, questioning the complacent view that the reforms were successful.

The debate has the unseemly presence of Lord Woolf in it. It is unseemly for him to “defend” his “reforms”. The subject is too important to be tainted by an effort to defend a personal investment.

However, the debate is a salutary reminder of how far behind we in Ireland are. The UK has a debate; we have nothing.

Instead, we still have a Rules Committee that had to be restrained by the Oireachtas from compelling barristers to wear wigs and that coolly front-loads the costs of litigation on litigants; all without any input into these “ideas” from the profession.

Habeas Corpus

1. McGarr Solicitors act for Jonathan O’Donnell. Jonathan O’Donnell was, apparently, arrested on the morning of 25th June 2009 in Broadhaven Bay, County Mayo by Gardai from Mayo Division.

2. He was taken to Ballina Garda Station and detained there.

3. Following application to the High Court later that day, the Court directed an inquiry into his detention under Article 40.4 of the Constitution of Ireland.

4. Formally, the Applicant is Jonathan O’Donnell; the Respondent is the Member in Charge of Ballina Garda Station.

5. The inquiry is returnable for Crt. 13 in the High Court, Four Courts, Dublin 7 at 10:45 a.m. on 26th June 2009.

Never Again

The Construction Industry Federation says it is not getting ready to challenge NAMA (more particularly the legislation setting up NAMA).

We have only to go back to 2005 to find out why it is not gearing up.

In Construction Industry Federation v Dublin City Council [2005], the Supreme Court denied locus standi to the CIF because its members were easily able, individually, to take the litigation pursued by the CIF against Dublin City Council.

The Court said;

In the present case, the Appellant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost all of its members in the functional area of the Respondent, and therefore the Appellant has a common interest with its members. However, it appears to me that to allow the Appellant to argue this point without relating it to any particular application and without showing any damage to the Appellant itself, means that the Court is being asked to deal with a hypothetical situation, which is always undesirable.”

So, too, now, CIF membes are easily able to take action for themselves.

The challenge, (there will be a challenge) will come from the members or some of them.

Blasphemy

Minister Dermot Ahern, Minister for Justice etc., please vigourously, without fear or favour, (asked or given), defend the interests of the following Persons (while,it must be said, doing your potential 2011 Presidential candidacy chances no harm);

Isis; Marduk; Aphrodite; Quetzallcoatl; Selene; Kibuka; Zeus; Hermes; Tekkeitserto; Mader-Akka; Ops; Nanook; Yhi; Ghidjja; Odin; Jupiter; Acuecucyoticihuati;

When you are finished, you may, at your discretion, help Michael O’Leary how to plan the operation of his pay toilets on Ryanair flights, assuming he is still engaged in that project when you are finished yours, if ever.

Misrepresentation

Misrepresentation is a form of fraud.

Fraud is a little like the “golden thread” [of innocence until proven guilty] running through [British] justice; it means more on some occasions than on others.

In Lazarus Estates Ltd v Beasley [1956] 1QB 702 at 712-713 Denning LJ stated:

No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”

The leading case on deceit is Derry v Peek [1889] UKHL

The promoters of a company issued a prospectus stating that they had a licence to use steam power to run a tram. They did not; they expected to get it as a mere formality. They were refused and the company failed. The shareholders sued for deceit. The action failed, because it was not proved that the directors lacked honest belief in what they had said.

What is in issue in an action claiming fraud is the state of mind of the defendant. It is rare that a plaintiff can prove the malignant state of mind of a fraudster.

Under Section 45 of the Sale of Goods and Supply of Services Act 1980 a right of action was created which ameliorated the burden on plaintiffs complaining of fraudulent behaviour or its equivalent.

In effect the burden of proof was reversed; the defendant must prove that he had a reasonable belief that what he said was true;

45.—(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.”

Institutions

We have the Ryan report to consider; there is a lot to consider.

What are we to make of the judges of that era? (Strictly the era has not ended; the Ryan Commission had a time period to consider, that period only has ended).

A handy, if not good, place to begin on this, is with Jeremy Bentham.

Bentham said, of “the right to silence”;

If all the criminals of every class, had assembled and framed a system after their own wishes, is not this rule the very first which they would have established for their security? Innocence never takes advantage of it; innocence claims the right of speaking, as guilt invokes the privilege of silence.”

As a matter of fact he was wrong in saying that “innocence never takes advantage of it”, otherwise the practice and procedure of criminal trials in his day would have demonstrated case after case of defendants proving themselves to be innocent, something that did not happen.

He was wrong also to imply that invocation of the “privilege of silence” was a sign of guilt. Determination of guilt was and is the precise purpose of a trial. His opinion implied that the burden of proof should rest on the accused, something civilised nations currently do not admit as reasonable.

In reality, Bentham was on the comfortable side of a power relationship.

He was not the first and will not be the last such person.

Crimes are prosecuted because it suits the person in power to launch the prosecution. Whether that is a proper action depends on the circumstances of the prosecutor as much as the circumstances of the accused.

What, for instance, of Ireland’s political and administrative leaders during the years of the Bush administration in the USA?

(Actually, let us confine the inquiry to the period after the passing of the International Criminal Court Act 2006).

Under Section 8 of the Act of 2006:

Any person who does any act specified in paragraph 3 of Article 25 (crimes ancillary to genocide, crimes against humanity and war crimes) is guilty of an offence (in this Act referred to as an “ancillary offence”)”

Under Article 25 (3) (c) it is an offence for a person who;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

“War crimes” are defined in Article 8 and include;

Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;”

That is exactly what George W. Bush and Donald Rumsfeld did to the prisoners of Guantanamo, as was generally known.

Furthermore, they used Shannon airport to facilitate the transport of some of those prisoners to Guantanamo;

When will we have an investigation of the complicity (or ignorance, if such be the case) of our politicians, particularly our Ministers for Justice etc. during those years, in relation to those matters?

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