Over the course of the last year, there have been many interesting judgements in the High Court and the Court of Appeal in relation to healthcare and personal injury law.
The implementation of the Personal Injury Guidelines (the “Guidelines”) in 2021 was enough to ensure we would see plenty of interesting interpretations of the new Guidelines and a change in how the courts issue damages.
But more than this, we have seen decisions which deliver further clarification in relation to the grounds under which personal injury claims can be dismissed for inordinate delay, further clarity around nervous shock claims and decisions that confirm that the courts will act to ensure a level playing field for plaintiffs and defendants.
Below are just some of the more pertinent healthcare and personal injury law judgements made in 2022.
In the Rooney case, the High Court examined the grounds under which a personal injuries claim can be dismissed for inordinate and inexcusable delay. In this case, the plaintiff delayed in particularising and progressing his claim for 6 years.
A summons was issued without the benefit of an expert report on a protective basis and no details of the negligence had been pleaded. The defendant sought details of negligence on numerous occasions seeking full and detailed particulars of the plaintiff’s claim. However, the plaintiff’s solicitor failed to provide a meaningful response.
The defendant issued a motion seeking to dismiss the plaintiff’s claim on the grounds that it was an abuse of process and there was inordinate and inexcusable delay.
Mr Justice Simons applied the test set out in Primor plc v Stokes Kennedy Crowley (1996):
After applying the test Mr Justice Simons was satisfied that there had been an inordinate and inexcusable delay on the part of the plaintiff, and it was in the interests of justice to dismiss this case for a failure to particularise personal injuries claims and that the ongoing delay was unreasonable and the continued maintenance of proceedings without such a report had now become an abuse of process.
In this case, the plaintiff challenged the legal basis for the Personal Injury Guidelines (the ‘Guidelines’), which were published by the Judicial Council in March 2021and have been applied to all cases assessed by the Personal Injuries Assessment Board (PIAB) since 24th of April 2021. You can read our assessment of the data released by PIAB on the first year of the Guidelines here.
The plaintiff also maintained that PIAB erred in law, in assessing the value of her injuries under the Guidelines and not the Book of Quantum (BOQ).
The applicant claimed that she fell when walking on a public footpath in County Waterford and fractured her ankle because of an unevenness on the footpath. Under the BOQ her injury could have fetched up to €34,000 but PIAB assessed her injuries as being valued at €3,000.
The High Court concluded that the applicant was not entitled to any of the reliefs she sought. It held that there is clear, well established, principles for awarding general damages.
The Court held that the applicant did not have a right to a particular sum as may be provided for in the BOQ. The applicant’s constitutional rights of property, bodily integrity and equality did not encompass a right to a particular sum of damages but, rather a right to have her damages assessed in accordance with well-established legal principles.
In this case the High Court has provided welcome clarification in relation to the legal basis for the assessment of personal injuries by reference to the Personal Injury Guidelines.
In this Court of Appeal decision, the High Court award of €85,000 in general damages for negligently inflicted psychiatric injuries was upheld and the position of the Courts in relation to nervous shock was further clarified. This case confirmed the principles as set out by the Supreme Court in Kelly v Hennessy [1995] 2 IR 253 remain the relevant legal test for recovery in cases of this nature.
In this case the plaintiff was driving home and came across a devastating road traffic accident. Following the incident, the plaintiff was diagnosed with post-traumatic stress disorder (PTSD).
The defendants argued that the driver owed no relevant duty of care to the plaintiff because the plaintiff was a “secondary victim” and did not conform to the criteria entitling a secondary victim to damages and where the primary victim suffers injury as a result of his own negligence, the psychiatric injury suffered by the plaintiff as a result of witnessing the defendant’s self-inflicted injury is not compensable in law as a matter of policy.
The Court of Appeal upheld the decision in favour of the plaintiff. Mr Justice Collins found that the plaintiff was far from being a mere bystander or spectator in the circumstances of this case.
This decision is welcome as it provides some further clarify as to the approach of the Irish Courts to nervous shock claims.
In this Court of Appeal case, the defendant in a medical negligence case sought to compel the plaintiff to deliver expert reports pursuant to Order 39, Rule 46 RSC, as introduced by S.I. 391 of 1998.
In delivering judgment, Mr Justice Noonan referred to the ‘significant shortcomings’ in the disclosure regime introduced by S.I. 391 of 1998.
The fourth named defendant issued a motion seeking to compel the plaintiff to disclose all expert reports. The plaintiff had delivered their schedule of witnesses, listing nine experts. The defendant delivered its schedule, listing no expert witnesses. The defendant requested an exchange of reports and offered a Harrington undertaking. The plaintiff did not disclose their reports and the defendant issued a motion.
The plaintiff opposed the application on the basis that the defendant was seeking to assess the strengths and weaknesses of the plaintiff’s claim prior to instructing their own expert and further that this was not a normal defendant as the defendant had a number of resources open to them. Mr Justice Cross accepted this and was of the view that a Harrington undertaking was not sufficient to ensure fairness and noted there was a risk of a litigious advantage to a well-resourced defendant.
Mr Justice Cross declined to make the Order based on the Harrington undertaking and suggested if the defendant gave an undertaking that the reports would not be disclosed to the defendant itself and only to the legal team, then he would be prepared to make such Order. The defendant did not provide this undertaking.
This was an important decision and clarified that the courts approach in trying to ensure that a level playing field exists.
In this Court of Appeal case a defendant’s expert opinion was disregarded in its entirety. The plaintiffs engaged with the defendant to upgrade the insulation in their house using a product called Icynene. The spray foam used was highly toxic. The defendant arrived at the plaintiff’s home and removed the old fiberglass insulation and replaced it with the new insulation. Certain holes were left in the ceiling of the attic after the first day. The wife and child stayed in the kitchen for most of the day and the family slept in the house that night. The defendant advised the plaintiff to leave the windows open, but the plaintiff closed the windows that evening when it got cold.
The plaintiffs developed reactive airways dysfunction syndrome as a result of being exposed to the toxic chemicals. The plaintiffs brought a personal injury claim against the defendant as they claimed they should not have been allowed to stay in the house while the insulation took place and for two hours after completion. It was also claimed by the plaintiff that the defendant did not provide the proper ventilation.
At the trial the defendant’s expert toxicologist provided evidence which refuted the allegations of the plaintiff. The essential evidence from the expert was that the chemicals dispersed within 30 to 90 minutes and therefore the defendant was not negligent.
At the conclusion of the trial the High Court rejected the entirety of the expert’s opinion, as he was not acting as an independent witness. An issue was raised with his evidence as he had previously delivered a paper to the SPF industry entitled “How to avoid a lawsuit”. The Court held in favour of the plaintiff and determined that the defendant was negligent.
The defendant appealed the decision, one of the central issues being that the trial judge errored in excluding the evidence of the expert toxicologist.
The Court noted that it is commonplace for experts to succumb to the natural tendency to put the interests of their own client first and that “hired gun syndrome” was inevitable in adversarial litigation. The Court was satisfied that the High Court was correct in its findings and dismissed the defendant’s appeal.
About the author: Nicholas Moore is a solicitor specialising in medical negligence.
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