The Gazette 1990

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GAZETTE jAnuaRy/february 1990 GAZETT INCORPORATE D
LAWSOCIETY
OF IRELAND
Vol.84 No.2 March 1990
Viewpoint
In
this
Issue
Mr. Justice Brian Walsh 45
Presidents Column 47
Nervous Shock, where
are we now? 49
Lawbrief 57
People & Places 60
Law Society Annual
Law Society Retirement
Plan 70
yBook Review * 73
/r
*
Executive Editor:
Mary Gaynor
Committee:
Eamonn G. Hall, Chairman
Michael V. O'Mahony, Vice-Chairman
John F. Buckley
Gary Byrne
Patrick McMahon
Charles R. M. Meredith
Daire Murphy
John Schutte
Advertising:
Seán Ó hOisín. Telephone: 305236
Fax: 307860
Printing:
Turner's Printing Co. Ltd., Longford.
•
The views expressed in this publication,
save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
Published at Blackhall Place, Dublin 7.
Tel.: 710711. Telex: 31219. Fax: 710704.
It is remarkable how little note
appears to have been taken of the
remarks of Mr. Justice McCarthy in
his judgment in the case of Hegarty
-v- O'Loughran & Anon, 8.2.1990
when he pointed out the difficulties
of introducing the "discoverability"
rule in relation to the operation of
the Statute of Limitations in
medical negligence cases without
at the same time bringing in a "no
fault" scheme for such cases.
Two recent cases have high-
lighted the enormous costs, both in
monetary and other aspects, of the
pursuit of serious claims arising out
of alleged medical negligence.
A number of factors contribute to
the high costs involved. Frequently
the issues are complex. Unlike
personal injury claims arising out of
motor accidents or accidents at
work, expert evidence is usually
required to establish negligence. In
addition there are normally several
defendants in these actions, one or
more doctors, a hospital, a health
board and possibly a pharma-
ceutical firm may all be involved.
Not only does this lengthen the trial
of the action but it is notorious that
actions with more than one
defendant prove particularly
difficult to settle.
The Supreme Court in the Dunne
case, indicated that there should be
a relatively modest "cap" on the
level of general damages to be
awarded while leaving the amount
of special damages to be worked
out in each individual case. It
seems an appropriate time to con-
sider whether a "no-fault system"
would not provide a more satis-
factory solution to the problem and
be in ease of all parties. It is
notorious that premiums for in-
surance paid by medical practi-
tioners are escalating and figures
produced by the British Medical
Association suggest that of the
£90 million per year paid in
insurance premiums less than half
of that sum reaches injured
patients.
Sweden operates a scheme
under which compensation is paid
for unforeseen mishaps and only
compensates physical injury. The
British Medical Association has
proposed a scheme which would
recommend the inclusion of pain
and suffering. Trivial and minimum
disability accidents are excluded, a
victim must have been off work for
at least 30 days or been hospital-
ised for 10 days or more before
coming within the scheme. Pay-
ments under the scheme would
take account of other sources of
income such as disability benefits
under a Social Welfare Scheme and
there would be a ceiling - twice
the national average wage has
been proposed. The scheme would
assume indefinite responsibility for
permanent injury and would be
inflation-indexed.
"No-fault" schemes are based
on the proposition that accidents
are inevitable and that it is reason-
able that those who are unfortun-
ate enough to be the victim of an
accident should be entitled to
compensation as a matter of
course rather than have to plough
the difficult furrow of litigation.
There may be strong arguments
against introducing "no-fault"
schemes for all types of accident
but this should not preclude serious
consideration being given to them
in the area of medical negligence. It
would not be too difficult to
envisage a "no-fault" scheme for
medical negligence being funded
partly by contributions from the
medical profession and partly by
State funding. The option of civil
proceedings could of course be
kept open for injured parties.
It is tempting to say that almost
anything would be better than the
present unsatisfactory arrange-
ments where it is commonly'alleg-
ed that many medical negligence
actions never get off the ground
because of the difficulty of getting
satisfactory evidence and because
the costs involved are generally
much greater than those in other
personal injury claims. It may be
that professional bodies of lawyers
and doctors in Ireland should get
together to take up the torch which
has been lit in the United Kingdom
by the British Medical Association.•
43