Negligence Cases

Kenny v O’Rourke

‘But For’ Test

• Fell from ladder

• Admitted he “leant too far”

• Defendant not liable

Barnett v Chelsea & Kensington Hospital

‘But For’ Test

• Hospital negligently sent patient away who later died of arsenic poisoning

• Medical evidence showed he would have died anyway - hospital not liable

Duffy v Rooney & Dunnes Stores

‘But For’ Test

• Child’s coat from Dunnes caught fire

• Found grandparents would not have acted differently

• Defendant not liable

Baker v Willoughby

Complex Causation

• Plaintiff’s leg injured in car accident caused by defendant

• Before trial, shot in same leg - amputation

• Found original negligent driver’s liability continued

• 2nd tortious act did not eliminate effects of first

Jobling v Associated Dairies

Complex Causation

• Plaintiff suffered work-related back injury

• Before trial, developed unrelated back disease

• Defendant not liable for losses after onset of disease

R(L) v Minister for Health & Children

• Plaintiff infected with Hep C from contaminated meds & sought compensation for future earnings loss

• Before claim assessed, road accident left him unable to work at all

• O’Neill J: Jobling should not be applied if supervening act is tortious

• “concurrent wrongdoers” - Civil Liability Act 1961

Bonnington Castings v Wardlaw

Material Contribution to Injury

• Worker contracted illness from silica dust

• 2 sources: 1 negligent, 1 innocent

• Could not prove that ‘but for’ negligent dust, he would not have contracted disease

• Held it was sufficient to prove breach contributed to his injury

McGhee v National Coal Board

Material Increase in Risk of Injury

• Employee contracted dermatitis from brick dust

• Employer negligent for failing to provide showers

• Held defendant’s breach materially increased risk of injury

Fairchild v Glenhaven Funeral Services

Fairchild Exception

• Developed disease from asbestos

• Disease can be caused by single fibre - impossible to identify which employer was responsible

• Relaxed ‘but for’ test

• Competing causes must be identical

Quinn v Mid-Western Health Board

Irish Position

• Baby suffered brain damage

• Negligent timing of birth

• Medical evidence showed injury occurred before negligent delivery - not liable

Breslin v Corcoran

Novus Actus Interveniens

• Car owner left car unlocked with keys in ignition

• Joyrider stole & crashed into plaintiff

• Reasonably foreseeable that it would be stolen, not that it would be driven carelessly

• Joyrider’s independent act broke chain of causation

Re Polemis

Remoteness of Damage - Old Test

• Employee negligently dropped plank into ship’s hold causing spark which ignited petrol & destroyed ship

• Held liable for all direct consequences of negligence regardless of foreseeability

The Wagon Mound (No. 1)

Remoteness of Damage - Modern Test

• Negligently spilled oil into harbour

• Spread to plaintiff’s wharf & caused fire

• Est. reasonable foreseeability as test for remoteness

• Damage from oil fouling was foreseeable, fire was not

• Not liable for fire damage

Burke v John Paul & Co.

Egg Shell Skull Rule

• Employee had to use extra force on blunt machine

• Hernia due to congenital weakness

• Some form of physical injury was foreseeable, so defendant was liable for full extent of injury (hernia)

Lawson v Lafferière

Loss of Chance: Medical Negligence (Canada)

• Misdiagnoses & failure to communicate cancer diagnosis to plaintiff for 4 years

• SC denied recovery for loss of chance survival - doctrine unsuitable in cases where sickness/death had already eventuated

• Alternative path for compensation

• Awarded damages for mental distress

Hotson v East Berkshire Area Health Authority

Loss of Chance: Medical Negligence (UK)

• Young boy fell from tree

• 5-day delay in diagnosis led to permanent hip deformity

• Medical evidence showed 75% chance he would have developed deformity regardless of delay

• Held since claimant couldn’t prove on balance of probabilities that negligence caused injury, claim must fail

• Loss of chance claims not suitable basis for claims concerning past events where injury had already happened

Gregg v Scott

Loss of Chance: Medical Negligence (UK)

• Cancer diagnosis delayed by 9 months

• Reduced chance of survival from 42% to 25%

• House of Lords dismissed claim - initial chance of recovery below 50%

Philp v Ryan

Loss of Chance: Medical Negligence (Ireland)

• 8-month delay in cancer diagnosis

• Conflicting medical evidence - could not prove on balance of probabilities that he had lost life expectancy or chance of better outcome

• Award for mental distress

• Landmark case: established a claim for the loss of opportunity for treatment

Swaine v Commissioner for Public Works

Fear of Disease

• Exposed to asbestos at workplace

• Developed chronic reactive anxiety neurosis

• Liability conceded by defendant

• Appeal focused on amount of damages

Fletcher v Commisisoner of Public Works

Fear of Disease

• Asbestos exposure - reactive anxiety neurosis

• Court acknowledged exposure was due to employer’s negligence

• Driven by policy considerations - held no liability was owed in absence of a physical injury

• “uncharted territory” - reluctance to expand liability for pure psych injuries

• Reliance on policy - “floodgates”

Mullally v Bus Éireann

Nervous Shock

• Mother learnt husband & kids in serious bus accident

• At hospital, witnessed “appalling hospital scenes”

• PTSD

• Awarded damages as it was foreseeable that she would get PTSD after witnessing her family

Kelly v Hennessy

Nervous Shock

• Found out husband & daughters in car accident via phone call

• Saw their condition in hospital

• 4-part test

  • Shock induced recognisable psychiatric injury

  • Caused by defendant’s act

  • Sustained by reason of actual or apprehended physical injury

  • Defendant owed them duty of care to not cause reasonably foreseeable injury

• Significance: Law permits recovery for individuals who come upon “immediate aftermath” of accident involving a person they love

McLoughlin Critera

Secondary Victims

• Close relationship of love/affection with immediate victim

• Proximity to accident in time & space

• Shock caused by directly seeing or hearing event

Alcock v Chief Constable of South Yorkshire Polcie

Primary/Secondary Victims

• Relatives & friends of victims

• Suffered psych injury after witnessing events at stadium or on tv

• Defendant admitted negligence re primary victims (those killed/injured)

• Denied owing duty to secondary victims

• House of Lords rejected claims - did not meet necessary tests for proximity

Alcock Mechanisms

1. Class of persons

2. Proximity

3. Means of shock

McGrath v Trintech Technologies

Occupational Stress

• Claimed he suffered psych injury from work-related stress

• Formally adopted 16 Hatton Propositions into Irish law

• Found employer not negligent - not aware of employees vulnerability & workload not demanding

Maher v Jabil Global Services

Occupational Stress

• Claim for stress failed - workload not unreasonable

• Clarke J 3-step test:

  • injury to health

  • attributable to workplace

  • harm was reasonably foreseeable to employer

Berber v Dunnes Stores

Occupational Stress

• Employee with Crohn’s disease suffered PTSD after dispute

• HC found employer liable - failure to have regard for medical condition, especially after solicitor’s notified them of his stress

• SC reversed decision - considered employer’s actions reasonable

Walker v Northumberland County Council

Occupational Stress

• Suffered mental breakdown from excessive workload

• After returning to work, support requests not met - suffered 2nd breakdown

• Court held employer liable for 2nd breakdown

Barber v Somerset County Council

Occupational Stress

• Teacher suffered breakdown from working long hours

• Had spoken to senior staff about problems, nothing was done

• Held that once employer is made aware of employee’s problems - has duty to take steps

• Failure to do so was breach of duty

McFarlane v Tayside Health Board

Infringement of Autonomy/Wrongful Conception

• Damages allowed: for pain & suffering of pregnancy/childbirth

• Damages Disallowed:

  • Costs of raising healthy child

  • Law regards birth of healthy baby as blessing where benefits outweigh any financial loss

  • Suggested new approach: parents “entitled to general damages to reflect true nature of wrong done to them

Rees v Darlington Memorial Hospital

Infringement of Autonomy/Wrongful Conception

• Affirmed McFarlane decision & developed suggestion into concept of “conventional award”

• Claimant with visual disability gave birth to healthy child after negligent sterilisation

• House of Lords est. fixed award of £15k

Byrne v Ryan

Infringement of Autonomy/Wrongful Conception

• Mother of 5 underwent tubal ligation - failed negligently

• Gave birth to 2 healthy children & sued for damages

• Defendant conceded liability for “pain, suffering & inconvenience of pregnancy & childbirth & for having sterilisation repeated.”

• Denied claim for economic cost of raising children

Dunne Test

Medical Negligence

1. Core Test

2. Deviation from practice

3. Inherent defects

4. Role of judges

5. Determination of fact

6. “General and approved”

Bolam Test

Medical Negligence

• Claimant suffered fractured hip during electro-convulsive therapy administered without relaxant drugs

• Court held that standard is met if a professional “exercises the ordinary skill of an ordinary competent man exercising that particular art” and acts “in accordance with a practice accepted as proper by a responsible body of medical men skilled in this particular art”

• Under this test, defendant found not to be in breach of duty - other responsible doctors would have acted in same manner

Collins v Midwestern Health Board

Standard for GPs

• Law requires reasonable diagnosis, not necessarily a correct one

• SC found GP negligent for diagnosing an upper respiratory tract infection without considering the wider context of visit

• Patient had severe headache - later died of brain haemorrhage

Sidaway v Governors of Royal Bethlem Hospital

Evolution of Informed Consent

• House of Lords applied Bolam test to informed consent

• Claimant was paralysed following back surgery & argued she had not been warned of this small but known risk

• Held doctor not negligent because other reasonable doctors would not have disclosed the risk

• Decision was criticised for giving med professionals too much discretion and for failing to recognise that patients may value risks differently based on personal circumstances

Walsh v Family Planning Services

• Plaintiff suffered chronic pain after vasectomy & argued he was not properly warned of this rare risk

• Finlay CJ argued Dunne test should apply to advice as it does to treatment

• O’Flaherty against applying Dunne test to disclosure

Geoghegan v Harris

“Reasonable Patient” Test

• Chronic pain after dental implant

• Kearns J rejected Dunne test to risk disclosure - would leave decision entirely in hands of doctors

• Endorsed “reasonable patient” test:

  • “Patient has the right to know and the practitioner a duty of to advise of all material risks associated with a proposed form of treatment. The court must ultimately decide what is material.”

• Materiality:

  • Severity of consequences

  • Statistical frequency of risk

• Later refined in Fitzpatrick

Chester v Afshar

• Claimed not warned of small but significant risk of spine condition developing

• Sued - had she been warned, would not have gone through with it

• Surgeon owes legal duty to patient to warn them of risks

Montgomery v Lanarkshire Health Board

Shift towards patient autonomy

• Claimant diabetic & pregnant - 10% risk of shoulder dystocia

• Doctor did not warn her or of the alternative of having C-section

• Doctor’s rationale was paternalistic: believed most women would rather have a C-section - did not consider their best interest

• Allowed appeal - rejected Bolam

• New Standard: Patient-centred test