The Gazette 1993

GAZETTE

APRIL 1993

pany solely liable: (1) the balance of the scientific evidence adduced indicated that, in 1969, the defendant company was aware that the vaccine carried a possibility, how- ever rare, of serious reaction to it in small children; and accordingly, it owed a high degree of care in regard to its testing before placing it on the market; and merely to com- ply with minimum requirements imposed by national health authorities would not meet such a high standard; and in that light, the trial judge had correctly concluded that the com- pany had been negl igent to al low the vaccine batch in the instant case to go on the market when it had failed the laboratory test which had been administered; (2) the trial judge had erred in concluding that the recollection of the plaintiff's doctor, based on the doctor's notes, indicated that the plaintiff's mother's evidence as to the occurrence of the plaintiff's fits must have been mistaken; and while direct recollection of events was not always to be preferred over evidence based, in part, on reliance on notes or other documentary evidence, the indications from other elements ofthe doctor's evidence suggested that, in the instant case, the mother's evidence was to be preferred, namely that the first fits had oc- curred in the immediate aftermath of the administration of the vaccine. Hay vO'Grady [1992] ILRM 689 applied; (3) accordingly, the plaintiff had established in evidence that there was a causative link between the inju- ries suffered by him and the administration of the vaccine, and since there was a failure by the company in its duty of care to him, the company was solely liable and there should be a retrial on the question of damages only, with the company being the sole defendant. McGhee v National Coal Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health Authority [1988] 1 AC 1074 referred to. The second and third defendants, surgeons, were servants or agents of the first defendant, and carried out a vesectomy on the plaintiff. Prior to the surgery, the defendants stated that they explained to the plaintiff that, while the operation was routine, there was a small risk that he would suffer some pain arising from the operation. After the operation, the plaintiff suffered severe pain. Attempts to relieve the pain (including further surgery to remove a testicle) were not successful, and the continuing pain was such, the plaintiff stated, that he was unable to have any sexual relations with his wife. The plaintiff claimed damages in negligence arising from the va- sectomy operation. A further claim was made for assault arising from the plaintiff's claim that he had consented to the second defend- ant carrying out the operation, but not the third defendant. Mackenzie J dismissed the claim in negligence but found there had been a technical assault on the plaintiff and awarded damages of 42,500. On appeal HELD by the Supreme Court (Finlay CJ, Hederman McCarthy, O'Flaherty and Egan Walsh v Family Planning Services Ltd, Orr and Kelly Supreme Court 9 April 1992 NEGLIGENCE - MEDICAL - SURGERY - VASECTOMY - WHETHER PATIENT INFORMED OF POSSIBLE PAIN- FUL CONSEQUENCES IN ADVANCE OF SURGERY - WHETHER WANT OF DUE CARE STANDARD OF CARE IN ELECTIVE SURGERY - WHETHER PATIENT CONSENTING TO SURGERY BY PARTICULAR SUR- GEON ONLY - ASSAULT - EXTENT OF TORT OF ASSAULT IN CASES OF SURGERY

JJ) dismissing the plaintiff's claim: (1) in the circumstances of elective surgery, such as the present, the medical practitioner was under a greater duty of care to explain the consequences of surgery than would be the case in non-elective surgery so that the pa- tient can give an informed consent to the medical procedure; and therefore the mere following of an accepted practice could not be regarded as meeting the standard of care required. Dunne v National Maternity Hos- pital [1989] ILRM 735; [1989] IR 91 dis- cussed; (2) a warning was required in the instant case, albeit that the dangers associ- ated with the surgery were remote in medical experience; the Supreme Court could not interfere with the finding of the trial judge that a warning had been given; and the warning thus given had been sufficient to alert the plaintiff to the dangers arising from the surgery, so that no want of due care had been established; and the further complica- tions which arose from the additional surgery after the vasectomy were too remote as to be consequences in relation to which the de- fendants were required to warn the plaintiff; (3) (Finlay CJ, Hederman and O'Flaherty; McCarthy and Egan JJ dissenting) the plaintiff had in effect consented to a vasectomy being performed by a competent surgeon, and since he was unaware of the range of expertise of the second defendant, it could not be said that he had only consented to her performing the operation to the exclusion of all other surgeons; and having regard in particular to the fact that the operation was carried out with the plaintiff conscious by means of local anaesthetic, the finding by the trial judge of a technical assault should be set aside. Semble: a claim of assault should be con- fined to cases where there is no consent to a particular procedure or where apparent con- sent has been vitiated by fraud or deception. Reibl v Hughes [1980) 2 SCR 880 approved. The plaintiff, then 7 years of age, was a lawful visitor toa hotel owned by the first defendant and managed by the second defendant. She was attacked by a dog described as a mongrel Alsation. In evidence, her cousin stated that, on previous occasions, the dog had growled at him and there was also evidence that the dog had a propensity to attempt to mount young girls. The plaintiff's claim was based in scienter, breach of common law duty and breach of statutory duty. In the High Court, Egan J dimsissed the claim. On appeal HELD by the Supreme Court (Hederman, McCarthy and Costello JJ) allowing the appeal: (1) the evidence indicated a propensity that the dog might attack, and it was not required for the pu rposes of the sc ienter doctri ne that it wou Id certainly do so. Bennett v Walsh (1936) 70 ILTR 252 applied; (2) the first defendant, as owner, was in breach of his common law duty of care to the plaintiff as lawful visitor to the hotel; (3) it was difficult to discern any additional duty which s.4 of the 1963 Act had added to the common law duty of care. 5 Duggan v Armstrong and Anor Supreme Court 26 June 1992 NEGLIGENCE - OWNER OF DOG - SCIENTER - WHETHER PROPENSITY TO ATTACK ESTABLISHED - HOTEL PROPRIETOR - COMMON LAW DUTY OF CARE - WHETHER DIFFERENT IN KIND FROM STATU- TORY DUTY OF HOTEL PROPRIETOR - Hotel Proprie- tors Act 1963, s.4

Smyth and Anor v Tunney and Ors (No.3) Supreme Court 26 June 1992 PRACTICE AND PROCEDURE - ACTION - APPEAL - ADDITIONAL EVIDENCE - WITNESS VARYING EVI- DENCE - EVIDENCE OF SIMILAR FACTS - WHETHER RELEVANT - Rules of the Superior Courts 1986,0.58, r.8 The plaintiff had brought proceedings against the defendant, which involved, inter alia, allegations of fraudulent conduct by the de- fendants. Murphy J dismissed theclaim (High Court, 6 October 1989). In the course of his judgment, Murphy J had suggested that one of the defendants had lied and that the plain- tiff was the victim of self-delusion. In the course of his appeal to the Supreme Court, the plaintiff brought an application under 0.58, r.8 of the 1986 Rules seeking to intro- duce additional evidence in the case. The first matter related to the fact that one of the plaintiff's witnesses had lied under oath but that this had not been challenged by the defendant at the time. In addition, the plain- tiff sought to introduce evidence as to similar alleged fraudulent conduct by the defend- ants in other commercial transactions. HELD by the Supreme Court (Hederman, Costello and McCarthy JJ) dismissing the application: (1) there was no authority for the proposition that a witness may ordinarily be permitted to give evidence on the hearing of an appeal from a decision on fact so that he may recant earlier evidence and support a different case. Attorney General v Hitchcock (1847) 1 Exch 91 referred to; (2) in any event, it was doubt- ful if the amended evidence was material to the real issue as ultimately decided in the High Court. Murphy v Minister for Defence [1991 ] 2 IR 161 referred to; (3) nor was there any reason to believe that the trial judge' conclusions would have been different if there had been additional evidence concern- ing similar alleged fraudulent activities by the defendants in other commercial transac- tions; and although such evidence concern- ing the defendants' character might be cred- ible, it was relevant only to cases where mistake was to be negatived or to prove intent, and it not relevant to the issues in the instant case. R v Boardman [1975] AC 442 referred to. PRACTICE AND PRCXZEDURE - CONSOLIDATION OF ACTION - DEFAMATION ACTION - MULTIPLE PLAIN- TIFFS - WHETHER COMMON QUESTIONS OF FACT OR LAW INVOLVED - WHETHER SUBSTANTIAL SAV- INGS WOULD RESULT FROM CONSOLIDATION - WHETHER CONFUSION OR INJUSTICE WOULD RE- SULT - Rules of the Superior Courts 1986, 0.49, r.6 The plaintiff instituted proceedings for defa- mation against the defendants arising from an article published by the defendants in a newspaper, 'The News of the World'. The article included descriptions of certain ac- tivities of parami I itary organisations, some of which were alleged to have occurred in the ground of Crossmaglen Gaelic Football Club. The plaintiff was, at the time, Chairman of Crossmaglen Gaelic Football Club and his statement of claim alleged that the article referred to him. A substantial number of other persons also instituted proceedings against the defendants arising from the arti- cle. The defendants' defence did not plead justification but stated that the article did not refer to the plaintiffs. The defendants sought to have the actions consol idated under 0.49, r.6 of the 1986 Rules. In the High Court, Duffy v Newsgroup Newspapers Ltd and Ors Supreme Court 26 June 1992