The Gazette 1995

GAZETTE

NOVEMBER

1995

When William Dunne was born severely brain-damaged in 1982 at the National Maternity Hospital, his parents began a seven-year legal battle which included a High Court victory, a Supreme Court appeal, and a retrial during which a number of dramatic court room developments I cast serious doubt on the hospital's evidence and following which he was awarded $ 4 0 0 , 0 00 in an out-of- court settlement. The case could never have been run without the willingness of his lawyers to bear the risk of not being paid. Kenneth Best, brain-damaged after receiving a whooping cough vaccine back in 1969, sued the We l l c ome Foundation and a doctor, losing in the High Court but winning on appeal to the Supreme Court, where he was awarded record damages of £ 2 . 7 5m. And the lawyers do bear a real risk because they must prove negligence. When eight-year-old Beatrice Lindsay entered hospital in 1982 for a routine appendix operation, she suffered irreversible brain damage similar to that of the woman in the recent right to die case. Though the Professor of Anaesthetics at UCG gave evidence that the likely cause of her condition was the withdrawal of oxygen to a dangerous degree, this was not sufficient to establish negligence and a High Court award o f $ 3 1 9 , 0 00 was overturned by the Supreme Court on appeal. Modern Irish negligence law is peppered with important judgments that followed 'no foal no fee' cases and where justice would never otherwise have been done. It seems the lawyers are now determined to trumpet the fact. After years of relative quiescence on their part, apparently in the belief that the merits of the system were self- evident to the public, they have now taken the offensive. • 269

As to the charge that there is a high j level of spurious claims: "how can this be when claims are tested by the courts? There is no question of awards being made without ; negligence being, in the , overwhelming number of cases, fully established. Employers who make j payments do so either because a court i has found them to be negligent or 1 because they believe a court would i find them to be negligent." Lawyers say that those who argue the contrary are either being disingenuous I or don't know what they're talking about. "In 'no foal, no fee' c a s e s ," one ! says, "prospective clients are, ' effectively, chosen by solicitors rather : than the other way round, in the sense ! that no solicitor is going to agree to bear the risk o f taking a case unless he or she is convinced that, firstly, the client has suffered an injury, and, secondly, that it was caused by negligence. " T he client has to submit to a medical 1 examination by doctors for the j defendants, which may suggest either j that no real injury was sustained or j else that it is being exaggerated. I They may also commission reports ! from engineers and other experts to ; challenge the argument that the injury was caused by their man 's negligence." The key argument o f the lawyers is that without 'no foal, no f e e ', which j involves the solicitor assuming the ! risk o f litigating, a great many people would be denied access to justice because, as Michael McHugh discovered in England, they couldn't afford to take on the rich and powerful. | If this looks like lawyers claiming to j be Robin Hoods it is not an image they are unhappy with. Indeed, I according to Ken Murphy, the only I ones defending workers these days are ! the lawyers and the unions. And not just workers. Among cases run in recent years on a 'no foal, no fee' basis were a number of high- profile medical malpractice suits.

I B EC and the Small Firms Association to Corporation

spokespersons, its director-general, Ken Murphy, has invented the phrase 'negligence culture'. According to Mr Murphy: " Compo culture is a propaganda term being used by certain vested interests here who are trying to evade their responsibilities. " I f there's high level of claims it's because there's a high level of accidents caused by negligent employers, and that is the problem they should be addressing rather than attacking those who are trying to vindicate the rights of those injured by that negligence. " T he solicitors' profession is sick and tired o f attempts being made to blame solicitors for the allegedly high level of claims in this country," and is "fed up with being made'the scapegoat for other peoples' tolerance of low levels o f health and safety in the workplace and on the roads. I . " T h e fact is that Ireland is a risky place in which to live, and the levels o f health and safety which we as a | society seem prepared to accept both in the workplace and on the roads inevitably leads to their being a large number o f c l a ims ." Rejecting figures released by I B EC which suggest the level o f work- related accidents is low here, Ken Murphy said he wasn't "going to accept figures from a vested interest" and has produced evidence from S I P TU and from other studies which suggests the opposite. There is considerable under-reporting of accidents in the workplace, he argues, and a truer picture can be gleaned from the figures for fatal accidents at work which, with an average o f 6 0 fatalities a year, is four times that in Britain. On the roads, meanwhile, according to Murphy, " a motorist has a 5 0pc higher risk o f being killed than in j Britain and a 20pc higher risk of serious injury."