The Gazette 1993

462 / 462

GAZETTE SEPTEMBER 1993
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
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 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,
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.