The Gazette 1993

SEPTEMBER 1993

GAZETTE

geon, alleging that the defendant had failed to exercise reasonable care in extracting a tooth from the plaintiff, as a result of which the plaintiff's mandible had been fractured. It was agreed that the fracture had occurred in the course of the extraction. In evidence in the High Court, the plaintiff stated that the defendant had attempted to extract the tooth unsuccessfully, that part of the tooth came away, that the root had remained in her jaw and that the defendant had stated "I knew this would happen." A consultant dental surgeon called by the plaintiff stated in evidence that a fractured mandible could result from lack of due care but that it could also arise from a situation in which all proper procedures were followed. At the conclusion of this evidence for the plaintiff, the defendant applied for a non - suit. The trial judge granted the application on the ground that the plaintiff had not established negligence. On appeal HELD by the Su- preme Court (Finlay CJ, Egan and Blayney JJ) allowing the appeal and ordering a new trial: in the instant case, where the defend- ant had indicated that, if the application for a non - suit was refused, he would be going into evidence, the |gjal judge should have merely decided whether negligence could be inferred from the evidence, that is whether a prima facie case hbpd been made out, rather than whether negligence had been established on the batance of probabilities; and since negligence could be inferred from the evidence given by the plaintiff, a new trial should be ordered. Per curiam: where, on an application for a non - suit, a defend- ant indicates that no evidence will be given on the question of liability, the trial judge is entitled to determine the question of liabil- ity on the balance of probabilities, provided that such a decision at that stage would not prejudice any other party where there is more than one defendant. Hetherington v Ultra Tyre Service Ltd and Ors [1993] ILRM 353 applied. Coyle v An Post Supreme Court 17 Decem- ber 1992 TORT - NEGLIGENCE - EMPLOYER'S LIABILITY - OF- FICE HOLDER - WHETHER DIRECTED TO TRAVEL IN DANGEROUS ROAD CONDITIONS - WHETHER BREACH OF DUTY OF CARE The plaintiff was engaged by An Post under the Postal and Telecommunications Serv- ices Act 1983 as a sub - postmaster in Raphoe, Co. Donegal, and as such he was an office holder with an Post. Part of his duties involved payment of social welfare benefits to recipients. The money for pay- ments was generally delivered to Raphoe from Lifford Post Office under escort. On 9 December 1985, the plaintiff became aware that the amount of money on hands in the sub-post office was not sufficient to meet the expected number of claimants. The plaintiff rang the official in Lifford Post Office who was responsible for supply of cash to sub - post offices, and was informed that, if he wished to obtain the money he would have to travel to Lifford. The plaintiff was already aware that the road conditions to Lifford were particularly difficult that day and in- quired whether he could obtain cash from the local bank, but the practice of obtaining money in this way had been discontinued. The plaintiff decided to set out for Lifford, but on the way his car skidded on the icy

what did cause the plaintiff's brain damage, and the distinction between a negligent act and causation as well as the uncertain na- ture of medical science in cases such as the present should be emphasised in this con- text; (3) the trial judge had rejected the plaintiff's suggestion that the brain damage arose from a lack of oxygen during the operation, and thus the anaesthetists could not be said to have been negligent; (4) while the plaintiff had established a prima facie case concerning lack of oxygen and while the unusual nature of the case required an explanation from the defendants, and al- though the defendants had not been able to establish the cause of the plaintiff's brain damage, they had established that they had not been negl igent, and this was sufficient to discharge the onus on them under the res ipsa loquitor rule; and accordingly the plain- tiff's claim should be dismissed. Dicta in Dowd v Kerry Council Council [ 1970] IR 27 and Girard v Royal Columbian Hospital (1976) 66 DLR(3d) 676 approved. McEleney v McCarron and Anor Supreme Court 21 December 1992 TORT - NEGLIGENCE - ROAD TRAFFIC - WHETHER FAILURE TO KEEP PROPER LOOKOUT The plaintiff had consumed a large quantity of alcohol at a disco and was being escorted home by foot with the assistance of two women who had also been at the disco. The plaintiff fell off the footpath on which they were walking onto the roadway. The two women attempted to move him off the road- way but were not fully able to do so. The second defendant was driving a car owned by the first defendant and as he approached the point where the plaintiff lay on the road, the second defendant saw the two women who he thought were seeking a lift. He stated that he saw a shadowy image beside them but that the car had gone over the plaintiff almost before he had seen him. As a result ofthe collision, the plaintiff suffered irreversible brain injuries. The plaintiff insti- tuted proceedings in negligence claiming that the second defendant failed to keep a proper look out. In the High Court, the second defendant was found negligent and fault was apportioned at 70% against him. On appeal by the defendants HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ) allowing the appeal and dis- missing the plaintiff's claim: it would be imposing an absolute duty of care on the second defendant to require him to observe the presence ofthe plaintiff on the roadway in circumstances in which the women on the footpath were clearly visible; and in the instant case, therefore, by driving in a man- ner in which he took care to avoid injury to the two women, the second defendant had not failed to keep an adequate lookout.

road and crashed and the plaintiff suffered severe personal injuries. He instituted pro- ceedings against An Post claiming damages in negligence. In the High Court, Johnson J held that the defendant had been negligent in effectively ordering the plaintiff to travel to Lifford in dangerous conditions but that the plaintiff had been contributorily negli- gent. He assessed liability on the defendant at 66% and awarded the plaintiff £81,200. On appeal by the defendant HELD by the Supreme Court (Finlay CJ, Hederman, Egan and Blayney JJ; O'Flaherty J dissenting) al- lowing the appeal and dismissing the plain- tiff's claim: (1) the evidence did not go so far as to indicate that the plaintiff had been ordered to go to Lifford to col lect the money, but rather that the plaintiff had chosen.to do so, and to restrict a person's choice with respect to how they may act if they chose to do so could not be construed as an order to them so to act; (2) the court would not be imposing a test based on a duty of care if it were to find that the defendant was required to prevent the plaintiff from travelling to Lifford and should have instead indicated that established practice be dispensed with and allowed him to obtain the money from the Raphoe bank; and in all the circum- stances there had been no breach of duty by the defendant. Dicta in Stapley v Gypsum Mines Ltd [1953] AC 663 referred to. Lindsay v Mid Western Health Board and Ors Supreme Court 18 December 1992 TORT - NEGLIGENCE - MEDICAL NEGLIGENCE - RES IPSA LOQUITOR - ONUS ON DEFENDANTS TO RE- BUT PRESUMPTION OF NEGLIGENCE - WHETHER DEFENDANTS DISCHARGING ONUS The plaintiff, then aged 8, was admitted to Limerick Regional Hospital with suspected appendicitis or inflammation of lymph glands. Her appendix was removed, but it emerged that the problem was the inflam- mation. A second operation was then per- formed on the glands. After the second operation, the plaintiff failed to regain con- sciousness and remained in a coma from which she was unlikely to emerge. The plaintiff instituted proceedings through her next friend alleging that in the course of the operation the anaesthetist must have failed to notice a drop in the level of oxygen to the plaintiff and that this caused the plaintiff to go into a coma. The plaintiff also relied on the doctrine of res ipsa loquitor. The defend- ants denied any negligence in the perform- ance of the operation and specifically de- nied there had been any drop in the oxygen level to the plaintiff. In the High Court, Morris J applied the res ipsa loquitorlesl and held that since the defendants had failed to establ ish that the coma had not been caused by negligence the plaintiff was entitled to succeed and awarded £319,392 to the plain- tiff. On appeal by the defendants HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) allowing the appeal and dis- missing the plaintiff's claim: (1) res ipsa loquitor applied in the instant case since, although no precise circumstance of negli- gence could be pointed to, the failure of the plaintiff to return to consciousness after a routine operation called for an explanation from the defendants; (2) the defendants were required to show that they had exercised all reasonable care but they were not required to prove, on the balance of probabilities,