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.

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

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

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.

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

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.

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.

Duffy v Newsgroup Newspapers Ltd and

Ors Supreme Court 26 June 1992

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,