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The Outcome

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.

Repetitive Strain Injury

See HERE for the Employers’ duties .

Repetitive Strain Injury is a common work-related injury.

It results from inflammation of the muscles, tendons and nerves of some part of the body. Despite its name, it does not always result from a repetitive action, although it is commonly found to result from that. A constant load on the body or a part of the body can cause the condition. It can be very severe and debilitating.

The condition is on the increase in Ireland.

Assembly workers in some employments may be exposed to very high repetitions of movements daily. The condition may have different names; Synovitis, Bursitis, Tenosynovitis, Tendinitis, Peritendinitis, Epicondylitis or even Carpal Tunnel Syndrome.

Symptoms can consist of: Pain, Tingling, Numbness, Swelling, Crepitus, Disability, Loss of function.

Symptoms may continue even after work. The condition can become permanent.

Another Defective Motor Car

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).

News?

The Irish Independent has a story HERE about documents and the difficulties with them.

I have written about the difficulties over documents previously HERE and HERE and HERE.

The Independent’s view about difficulties are not exactly the difficulties I have addressed, and of course, one should take what is printed in newspapers with a pinch of salt.

Nevertheless, what about the Independent story?

Well, it says there are legal issues arising in the review by Mr. Appleby the Director of Corporate Enforcement of documents from Anglo Irish Bank Corporation, but identifies only one; the privilege attaching to legal advice. It hints that the documents containing such advice may be inadmissible in any future criminal (or civil?) trials.

This may be true, but those documents must be relatively very few. In addition, if the “advice” is in fact correspondence between conspirators, the fact that one of the conspirators is a lawyer is not a bar to the introduction of the document in evidence against all the conspirators, including and particularly, the lawyer.

One sentence…

“Officials from the director’s office are currently working through the seized material with the bank’s legal advisors to see what documents can be used for the purpose of the investigation.”

…is of particular interest. I have never encountered a criminal investigation where the agents of the suspect debated the quality or admissibility of the evidence with the investigators, if that is what the newspaper is reporting as happening here.

I suspect the Bank’s lawyers are arguing against admissibility (and for privilege?) rather than assisting in the search for evidence.

If so, that would be the norm, (in civil proceedings) but it should not be the norm.

In Ireland, until 1999 it was the duty of lawyers, in litigation, to facilitate their client to make disclosure, on affidavit, to the opponent, of all relevant documents helping or hindering the case of the client.

The Rules of the Superior Courts (No. 2) (Discovery) 1999 (Statutory Instrument No. 233 of 1999)) put a stop to all that. Henceforth, a litigant was obliged to identify, specifically or generally, the documents it was believed the opponent had which helped the litigant and/or which hindered the opponent, and to show that it needed those documents.

In practice this is a nonsense.

It makes the delivery of justice turn on the quality of guesswork of the applicant litigant. It opens the applicant to derision and obloquy for coming to court and seemingly “fishing” for documents.

Possibly the Statutory Instrument was intended to address a problem now being encountered by Mr. Appleby; too many documents. What judge would want to preside over a trial with too many documents in as evidence? It would be right to cut down on the volume of documents in any trial, particularly if they are not relevant.

But few legal proceedings are like Mr. Appleby’s case, if there is one, and, of course, Mr. Appleby’s case is not yet a civil action. Even if it turns out to be a civil action, Mr. Appleby will, unlike ordinary litigants, have had the opportunity of eliminating the guesswork from his request for documents when he asks Anglo Irish Bank Corporation to swear an affidavit of discovery.

The judges of the United Kingdom, no more than here, also wanted to avoid trials with too many bits of paper to be examined. To achieve this end, they introduced changes to their rules of court. (Actually they turned their entire rule book inside out, but that’s another story).

In the UK, a litigant is entitled to receive from the other party, “standard” discovery. The lawyer for the party making standard discovery is obliged to facilitate the client to make disclosure, on affidavit, to the opponent, of all relevant documents, coming readily to mind or easily found, which helps or hinders the case of the client.

If the circumstances of the case require more extensive discovery, it is open to the applicant for discovery to apply to court to get further and better discovery. The burden of showing that this is warranted will be on the applicant, but this situation is substantially different to that of an applicant in Ireland, not least because of different attitudes.

The UK rules state that the purpose of the rules are to do justice; the Irish rules do not state this. Instead, it is taken as a given that the courts would not seek any other outcome except justice. Arguably, the latter position is better than the former; after all, who would trust someone who protests that what they are doing is, always, seeking justice?

But the UK position should be seen in the light of “pre-trial discovery”. In the UK it is possible to get a court order for disclosure of documents, without (and usually, before) issuing proceedings. This is not possible in Ireland.

With hindsight, the volume of documents may not have been the problem it was perceived to have been. Most cases, particularly claims for compensation for personal injury, require little or no work to make adequate and proper discovery. The paper burden is often slight.

In addition, in cases involving greater volumes of discovery, the modern computer and the modern copier, having generated the volumes of paper, can, and do, assist in managing that paper.

Ironically, full and proper discovery is likely to relieve a court of having to read any of the discovered documents; it is easier to settle cases where the parties have not achieved unfair advantage as they enter upon the trial stage of the proceedings.

A settled case is a good case from a judge’s point of view.

Skin Disease

It is generally agreed that skin disease is the commonest occupationally-caused disease. According to the United Kingdom Health and Safety Executive it accounted for 59% of all reported occupational disease in 1978-79. This reflects the Irish experience in proportional terms, although the total Irish figures are deceptively low. Although the skin is a remarkable and complex organ, the stresses applied to it in some workplaces are extreme and it is unable to perform it’s usual valuable functions. These include the provision of a barrier to harmful bacteria and retention of liquid in the body tissues.
The skin has a number of layers, the uppermost consisting of a thin layer of acid fat soluble secretions from the sebaceous glands. Solvents or prolonged immersion in water will remove this layer. The lower layers are subject to damage from acids, abrasions, cuts, and solvents.
The effects vary, but dermatitis is by far the most frequent manifestation, representing 80% to 90% of the problem. It may arise from a number of causes including physical sources such as heat or cold or excessive exposure to water but most of it is caused by contact with a chemical agent of one or more kinds. Some of these will cause dermatitis in every person exposed to sufficient concentrations, while others are active only as an allergic reaction in sensitive individuals. The symptoms are similar whether the agent is irritant or allergic. They can consist of redness, rash, dry scaling, wet weeping, sores or crust formation.
The agents are very numerous; they include cement, rubber, paint, some woods, tars, dyes, detergents, bricks, oil, leather. The following also cause dermatitis;

1,2-dichloroethylene, 1-2-dichloroethane
2,4-dinitro-O-cresol, Acetates
Acetic anhydride, Acetonitrile
Acrylonitrile, Alkalis
Allyl alcohol, Anthraquinone
Antinomy, Barium Compounds
Benzene Hexachloride (Lindane), Calcium cyanamide
Chloride of Lime, Chlorinated biphenyls
Chlorinated naphthalenes, Chloronitroanilines
Chloronitrobenzenes, Chlorprene
Dinitro-phenols, Epoxy resins
Ethyl acetate, Hexachlorobenzene
Hexamethylene tetramine, Hydroquinone
Isocyanates, Malathion
Naphtols, Pentachlorphenol
Phenols, Picric acid
Piperazine, Polychlorinated Biphenyls
Pyridine, Tetryl
Tin compounds, Toluene di-isocyanate
Vinyl acetate, Xylenols

Dermatitis is caused by exposure and appears at the point of contact. The agent may be air-borne, in which case any exposed skin will show symptoms. Skin covered by clothing will be untouched, often resulting in a sharp border line between affected areas and clear skin. If direct contact is involved, the hands are obviously most at risk, but the forehead or other parts of the head may be also affected through contamination from the hands. Occasionally, the wearing of gloves will have protected the hands and only the head will show symptoms. Sometimes the thighs are affected, even through clothing, by rubbing with the hands during work.
Allergic dermatitis requires a period of sensitization to the active agent. This may occur over a variable period of time during which there will be no symptoms. Thereafter, symptoms will appear with each contact with the agent.
Dermatitis is a prescribed occupational disease.

Fighting (2)

In Young v Charles Church (Southern) Ltd. [1997] the Plaintiff was a self-employed labourer on a building site. He handed a long metal scaffolding pole to a Mr. Cook. He was turning away from Mr. Cook when Mr. Cook was fatally electrocuted as the pole touched an overhead wire. The Plaintiff suffered a mental illness as a consequence of the event.

In the course of the proceedings issued on his behalf,his solicitors received a letter from the Defendants’ solicitors saying;

“For the purpose of these proceedings and for no other, we confirm that the issue of liability for this accident will not be in dispute. For the avoidance of any doubt please note it will still be the Defendants contention that your client does not come within the class of persons entitled to make a claim for nervous shock and the issues of causation and quantum remain live”.

In those two sentences the Defendants at once admitted liability and denied liability.

By agreement, the issue of liability was tried as a preliminary issue. (When this happens it is only on the basis that the facts are agreed between the parties.) The trial judge found against the Plaintiff, who then appealed to the Court of Appeal, where he was successful.

For the Plaintiff, “fighting” did not require him to give evidence; the case was run purely on legal arguments. Although the judgment of the three-judge Court of Appeal was unanimous in his favour, the legal arguments were sufficiently cogent to defeat him in first instance (and to have attracted the Defendants’ lawyers to the course of action they took, in the first instance). (Not that the opinions of the lawyers of an opponent should be determinative of a Plaintiff’s actions).

(To read the judgments in Young, click on the name of the case at the top of this post).

Drink-Cycling

Yesterday was emergency mini budget day.

In fact, it was emergency maxi budget day and some of you will be no longer driving (because you can’t afford it), and may be cycling everywhere.

In case you decide to cycle from the pub, see Section 51 of the Road Traffic Act 1961.

“51.—(1) A person shall not, in a public place—

( a ) drive or attempt to drive, or be in charge of, animal-drawn vehicle, or

( b ) drive or attempt to drive a pedal cycle,

while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle or cycle.”

Employers’ Duties

An employer owes duties to employees under Common Law and statute. The common law employers’ duties have been developed by the courts as they decide cases on accidents at work.
The employer’s Common Law duties are:
a) To provide a safe place of work
b) To provide proper tools and equipment
c) To provide a safe system of working
d) To provide competent staff

In addition an employer owes duties under statute to safeguard employees in the workplace.
Under the Safety, Health and Welfare at Work Act 2005, (”SHWWA”) (Section 8)) the employer’s duty is to ensure the safety of employees and in particular;

a) to provide by management and action, safety at work;
b) to provide by management and action that improper conduct does not occur;
c) to provide a safe place of work;
d) to provide safe plant or equipment;
e) to provide safe a safe system of work;
f) to provide safety information, instruction, training and supervision to employees;
g) to make a risk assessment and to implement measures to protect workers from those risks;
h) to provide protective clothing or equipment where hazards can not be completely eliminated;
i) to make emergency plans; and revise them as required;
j) a guard against hazards of particular articles or substances;
k) to provide welfare facilities and maintain them;
l) to provide a competent person to ensure safety and health at work of his employees.

Assessment of risk is the subject of academic study. It has the appearance of common sense but is far removed from that. For the purposes of SHWWA 2005, it involves four aspects.

• The risk must be identified in the first place.

• Secondly, it must be than assessed or quantified as a statistical possibility. In other words the likelihood of the perceived possibility must be measured.

• Thirdly, the measure of damage potentially arising must be identified.

• Fourthly, the practicability of avoiding the risk must be assessed.

This last matter is a question firstly, of physical possibility and secondly, cost. There is no certainty that each of these aspects can be perfectly ascertained. This is the norm In risk assessment
The standard of knowledge demanded of an employer in discovering the hazards in the workplace is that of the best available information. If the information becomes available, the employer is expected to promptly become aware of it. Such information is likely to first become available in countries other than Ireland. Employers must monitor the field of occupational safety and health on a global basis. Most occupational hazards in Ireland will, already, be well known as such.
Having recognized the hazard or risk, the employer must calculate the probability of its occurrence. This assessment is normally based upon inadequate evidence from a purely scientific point of view. This is not a real handicap or valid criticism. “Scientific” standards are not the norm in practical affairs and risk assessment is a practical matter. In addition, if scientific research is available to assist, it is very valuable, but it need not be conclusive. Usually, the assessment is based upon information arising from previous accidents, insight and skill in engineering or other technology, and/or information arising from experiments on animals with subsequent extrapolation to humans.
This mix is unlikely to be sufficient to produce a perfectly scientific statistical assessment of risk. So what? In practice decisions cannot be postponed. Only the available information can be used and, therefore, it must be used.
It may become more obvious in some circumstances than in others that risk assessment involves some ordering of values or priorities. Even continuing the status quo is a decision based on a value judgement. Cost effectiveness is a frequent determinant on such occasions. The value which society places on human health or life is another, even if no reference is made to it overtly.
If the full extent of the potential for damage amounts to something no worse, to speak in terms of farce, than the scuffing of the patent shoes of the sales manager, then the risk to be guarded against is negligible. This judgement remains valid even if the statistical probability shows that there is a risk of the damage occurring every six months. If, however, the full extent of the potential damage amounts to the loss of a limb of a worker or the death of a worker the risk to be guarded against is very large. This will apply even if the measured probability of the occurrence is as remote as once every 50 years.
What if the probability is very remote and the foreseeable damage is catastrophic? The final arbiter will be cost. This is not a reference to the capacity of the employer to pay for the avoidance of the hazard. That issue is irrelevant. It is a social judgement on the value of the money spent on avoiding the risk. If the amount of money required to be spent is large compared to the remoteness of the risk and the potential for damage, the risk need not be guarded against. Following the Alpha Piper oil-rig disaster in the North Sea, the U.K. Government set up a committee of inquiry into the event. Following the delivery of the report of Lord Cullen, the UK Department of Energy stated that mathematical standards of acceptable and non-acceptable risks would be introduced throughout the industry for the first time. The report itself went on to criticise Occidental Oil, the owners of the oil-rig, and the Department of Energy. It recommended that all offshore installations adopt a formal safety assessment system “involving the identification and assessment of hazards over the whole life cycle of a project……. The techniques used include hazard and operability studies; quantitative risk assessment; fault free analysis; human factors analysis; and safety audits”.
The sum considered proper to be spent to guard against a catastrophe is substantial, probably irrespective of the remoteness of the risk.
What does this mean in every day terms? It might require the closing down of a factory. This might happen because the risk cannot be guarded against, or the employer cannot, or will not, spend the money required to install the protection. There are mechanisms in the SHWWA 2005 for imposing this judgement on an employer. However, the decision may remain with the employer. There are hard reasons why the employer will not close down where the circumstances call for it.
There are in place standards for the assessment of value of loss or damage. Under the Civil Liability Act, the basis for compensating dependents and close relations of a deceased person have been in use for many years. The principle of compensation is approached from two directions. The Act sets out the sums of money to be paid for the pain and grief on the loss of the deceased. It varies with the relationship. Beyond that, the compensation is calculated on the basis of the financial loss suffered by the dependent on the death of the deceased.
There are serious drawbacks with this approach. It means that all lives are not of equal value. In addition, it hardly reflects the views of the deceased person. Put another way, the prospect of death from a known and avoidable risk is not readily faced by most people in circumstances where it is not guarded against for reasons of cost benefit.
Cost benefit has been shown to produce strange results. Dr. John Adams of the Department of Geography at University College London has suggested, on the basis of the Roskill Inquiry report (on the third London airport), that the net benefit to the economy, given the cost benefit value of a female human life, lay in having an aircraft crash on a woman.
Cost benefit analysis is of greater familiarity to managers than risk assessment. The opinion of where a cost benefit lies varies with the industry or business. It also varies with the society. It is a fact that the levels of compensation for personal injury in Britain are low. In the United States they may be too high. Given such variation, cost benefit analysis cannot be said to be straightforward and generally acceptable. For a manager making a decision to spend money, or not to spend money, such matters may not appear relevant. He will feel, having ascertained the statistical probability of an event, that a particular risk is acceptable. He will know nothing of the survey methods of the study that produced the probability figure. It may have included people who are not and never were at risk. They were not in the “danger zone”. Their presence in the survey makes a risk appear more remote than it really is, for the people who really matter, the people who are actually exposed.
There is another view to be taken: there is a social cost to a death or injury as much as an industry cost. The Environmental Risk Assessment Unit of the University of East Anglia identified a United Kingdom social cost of a life at about £266,000. This included £135,000 for lost output; £128,000 for pain and suffering; £1,300 police and medical costs; £1,750 damage to property.
This is higher than the amount the Nuclear Industry in Britain is prepared to spend on saving a life, if the person whose life is in issue is an employee. For an employee it will spend £500,000: for a member of the public it will not spend more than £200,000. The difference is based upon the perceived differences of exposure to risk.

Fighting (1)

Litigation lawyers fight. If a lawyer is not generally fighting, he/she is not in litigation. Sometimes the lawyer is fighting for a plaintiff and sometimes the lawyer is fighting for the defendant.

Some lawyers find they invariably fight for plaintiffs and other lawyers find they invariably fight for defendants. The distribution of business in the “legal market for services” explains patterns like this.

Some firms of solicitors have one client only; an insurance company, say. The requirement of an insurance company (or a bank), for legal services, is substantial.

The fighting takes place in the context of legal proceedings.

What is it like to be involved in legal proceedings?

The answer is not straightforward; after all, what is the answer to the question, “What is it like to be in a fight?”.

It invites the reply, “What kind of a fight?”

There is no comparison between a soldier coming in to land on OMAHA BEACH in Normandy, on D-Day 1944, and a brawl in the local pub. Yet both are “fights”.

Or, to take another example, consider Gary Cooper in “HIGH NOON” with his shoot-out on the Main Street and compare it with the reality of the WILD WEST; most shootings consisted of sneak assassinations from darkened laneways.

Perhaps the term “fighting” is wrong; perhaps “contest” is closer to reality, as a description of what the process is like. If so, the phrase “unequal contest” springs to mind. Many legal proceedings are unequal contests.

The reasons for the inequality are many. From a lawyer’s point of view, the problem may be like that of a chess player drafted into the chess game after the game has started. Fatal strategic decisions may have been made and the positions on the CHESS board now reflect that.

By whom have the fatal mistakes been made? Possibly the opponent, possibly the lawyer’s client.

Metaphorically speaking, assume the fatal mistakes have been made by the opponent but the game is underway in a five-star hotel and will last ten days or thereabouts. You have a winning position, but do you have the money to book a room in the HOTEL for ten days?

Whatever about the strategic errors on the board, the opponent will immediately perceive your lack of resources and drag the game out. Like HENRY COOPER, you (metaphorically) have a weak eyebrow. The opponent will punch you there, you will bleed (metaphorically), and the referee will stop the fight, in his favour.

Furthermore, prior to that, being Henry Cooper, you have knocked your opponent down; he pleads, (to gain time and recover), that his gloves are torn, and he needs them replaced!

Accused “X”, may I introduce you to your solicitor?

I have adverted HERE to the provisions of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007).

Section 19A is one of the Sections in Part 4 of the Criminal Justice Act 2007. Part 4 has had a predecessor (so to speak) in the United Kingdom in Section 34 of the Criminal Justice and Public Order Act 1994.

That section has caused a lot of difficulty in the UK courts.

The UK Court of Appeal in R. v Bresa [2005], stated:

As we made clear in our discussion of the authorities at the commencement of this judgment, Section 34 is a very difficult area. In our view however the criticisms that can be made of this direction are soundly based. The question that remains is whether, having regard to the misdirection, we could conclude that the conviction was safe. There was a very powerful case against the appellant and without an explanation from the solicitor as to the basis on which the appellant was being advised not to comment, there is a powerful case for saying that the jury could be sure that the appellant did not mention self-defence in his interview because he had not at that stage thought of that as his defence. But we cannot be sure what part the direction on Section 34 played in the jury’s decision making. It was a significant aspect of the summing up and for that reason it seems to us that we could not conclude that this conviction was safe.”

What the Court of Appeal were considering was the direction the judge had given to the jury in the “Bresa” case.

They summarised the terms of the direction that the judge was required to give to the jury:

The latest JSB guideline direction, which appears at Archbold 2004 Ed at para 15-427, has taken account of the above authorities and that supports the view that among the key features of a direction under Section 34 are the following. First there needs to be the striking of a fair balance between telling the jury of a defendant’s rights [to remain silent or not to disclose advice], and telling the jury that the defendant has a choice not to rely on those rights. Second there needs to be an accurate identification of the facts which it is alleged a defendant might reasonably have mentioned. Third there needs to be a warning that there must be a case to answer and the jury cannot convict on inference alone. Fourth there must be a direction to the effect that the key question is whether the jury can be sure that the accused remains silent not because of any advice but because he had no satisfactory explanation to give.”

In the UK, the accused is entitled to have his solicitor present with him during his interview with the police. This is not the case in Ireland.

In Ireland, under Seb-section 3 (b) of Section 19A, the Section only applies if the accused was given a reasonable opportunity to consult his solicitor.

Consider what a solicitor might say to an accused; the solicitor is very likely not acquainted with the accused [hence the title to this post}. The solicitor will need time to take full instructions and analyse the facts; in these circumstances the best advice is to advise him to say nothing.

If that is the advice given to the accused, what possible adverse inferences can be drawn if the accused fails to mention a fact he later relies on for his defence?

It should be remembered that the Gardaí will have cautioned the suspect that;

you are not obliged to say anything, but anything you do say will be taken down and may be used in evidence against you”.

It should be further remembered that the advice a solicitor gives to his/her client is privileged; the client is not obliged to divulge what advice he got from his solicitor.

So, the accused is in a position where i) he is not obliged to say anything; ii) his solicitor’s advice is secret (privileged); and iii) he is menaced with an adverse inference if he remains silent.

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