Legal News Brief – Negligence & Squatters Title

Tipp FM Legal Slot – 21^st February 2012

 

John M. Lynch Legal News Brief

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John and Patricia Walsh v. Tipperary SR County Council 

Involved what turned out to be a right of way dispute.  Was confirmed by the local authority as a public road.  PPl had bought the land a number of years previously from another man, when in the course of selling it

They received a letter from the Tipperary SR Council Council to inform them that the road was a public right of way.

When they went on to sell it the buyer rose the question again.  The Engineer looked at the lane said that only half of the road was metalled.  He pursued it and ultimately, established the local authority had made a mistake.  He had been presented with the letter from the original seller.

The local authority maintain a record of what roads are in charge and what roads are not.

The public right of way ended where the surface did.

The Walsh’s succeeded as they had gone back to the local authority in the course of the sale and were again told that the land was in charge.

Glen Carr explorations

The local authority tried to rely on the well-known Supreme Court judgement where Glen Carr Explorations sued Mayo County Council, who negligently prepared a development plan.  Glen Carr suffered a very significant loss but the Supreme Court ruled they could not claim.

The Council tried to finish the road and there were objections.

The Walsh’s were awarded €150,000.  The claim was for €300,000 as there was a loss in sale value of €150,000.  The Walsh’s had to offer a discount to the purchaser as they could not deliver on the contract.

The judge didn’t give the €300,000 because he said they did not mitigate the loss i.e. they did not try to rectify the matter and they should have used the arbitration clause under the contract.

O’Hagan (personal representative of Alice Dolan (decd)) v Grogan [2012] IESC 8

What is the background to this case?

This case questioned whether an action must be brought be a personal representative to recover lands forming part of the estate of a deceased where the State is the ultimate intestate successor.

The deceased, Alice Dolan, owned a house at Botanic Road, which the Dublin Corporation acquired for road widening in exchange for a house in Enniskerry Road.

Alice Dolan died intestate on 22^nd October 1981.  Desmond Grogan, a local auctioneer, learned of her death and lack of next-of-kin and broke into her house in 1982 and took possession of the house.  The grant of probate was not taken out until 2000, which was over 12 years – Statute of Limitations.

If you are holding a property against the State the Statute of Limitation period is 30 years.  The Supreme Court had to decide whether the Chief State Solicitor was a “State Authority”

The majority of the Supreme Court decided that no, the Chief State Solicitor was not a State Authority and so the period of limitation was 12 years.  The house remained with Desmond Grogan.

The proceedings were issued in May 2002.  The Plaintiff brought the proceedings in his capacity as Chief State Solicitor for an injunction directing the defendant to vacate the house and lands.

What did the Supreme Court have to consider?

The Supreme Court was required to determine three questions of law:

• Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
• In considering sections 23 and 24 of the Statute of Limitations is the limitation period prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2)?
• Is the answer to (b) affected by section 65 of the Succession Act 1965?

How is “State Authority” defined under the Statute of Limitations 1957?

Statute of Limitations 1957

Section 2: “State authority” means any authority being:

(a) a Minister of State, or

(b) the Commissioners of Public Works in Ireland, or

(c) the Irish Land Commission, or

(d) the Revenue Commissioners, or

(e) the Attorney General.

Section 3 (1): Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.

Section 13 (1) (a): Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.

(2) The following provision shall apply to an action by a person (other than a State authority) to recover land –

(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;

(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.

Section 23: For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.

Section 24: Subject to subsection 25 of this Act and to section 52 of the Act of 1891 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the lands shall be extinguished.

The Supreme Court had to consider whether the Chief State Solicitor was a State Authority.

Did the judge extend the definition of “State Authority” to include the Chief State Solicitor?

Finnegan J., found that within the definition of State authority in section 2 of the Statute of Limitations 1957 there was nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the plaintiff referred to the Ministers and Secretaries Act 1924 which provides:

“6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Éireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively together with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”

The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as:

• Chief Crown Solicitor for Ireland
• Chief State Solicitor’s Department and all local State solicitors
• Treasury Solicitor for Ireland
• Parliamentary Draftsman
• Charities
• Estates of illegitimate deceased persons

Finnegan J held that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department by section 6(1) of the 1924 Act does not have the effect of expanding the definition contained in section 2 of the 1957 Act.

What were Finnegan J’s findings?

In answer to the first question he held that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.

In answer to the second question – Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof? – he found that as the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The relevant limitation period is that in section 13(2)(a) – “no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person”

The last question for consideration was – Is the answer (b) affected by section 65 of the Succession Act 1965?

Finnegan J answered that as section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot.

Hegarty -v- Mercy University Hospital Cork [2011] IEHC 435 (25 November 2011)

This case questioned the care received by the Plaintiff, Mr. Hegarty in Mercy University Hospital between 6^th February and 5^th April 2007.  What condition did the plaintiff suffer from? 

The plaintiff, Paul Hegarty, (now 34) developed Ulcerative Colitis, a type of inflammatory bowel disease, in 2001.  Between 2001 and 2007 he was treated for ulceration of his large bowel by his GP and a consultant gastroenterologist, but he was hospitalised on a number of occasions.  His condition deteriorated in 2007 and he was admitted to hospital on 6^th February 2007 under the care of his gastroenterologist.  On 12^th February he had to have an emergency subtotal colectomy as he had developed a toxic megacolon, which could cause a potentially fatal Peritonitis.  The surgery involved removal of a major part of the plantiff’s large bowel and a rectal stump remained.

What complications followed his surgery?

Following his surgery on 12^th February 2007 the Plaintiff developed an oozing wound and by 18^th February was very unwell.  He was taken back to theatre on 20^th February and required extensive surgery.  During surgery it emerged that the Plaintiff had developed a rare but well-established complication – a leak from the rectal stump causing a pelvic abscess (swelling/blister) and the infection caused the plaintiff’s wound to break down.  This seemed to be due to the plaintiff taking steroids on an ongoing basis.  During the surgery a Wittmann Patch was inserted – a Velcro-like device where each side of the Velcro is sewn to the skin.  This device is used where multiple further operation are planned as the plaintiff’s abdomen would have to be opened on many more occasions to allow it to be washed out to eradicate infection.  The procedure was carried out approximately twelve more times.

Did his condition improve after the second surgery?

The plaintiff’s condition progressed following the second surgery on 20^th February.  A pelvic swab taken on 27^th February 2007 reported positive for MRSA on 1^st March 2007 and the plaintiff was moved to isolation.

The information given to the plaintiff about the status of his MRSA was disputed, however by the time he was released on 5^th April 2007 he had had three negative MRSA test results, which meant that he was no longer at risk of MRSA and this was communicated to him.

What were the findings of the High Court?

Irvine J, in the High Court, was satisfied that the plaintiff was fully advised of the complications of the first surgery and that he was given all of the relevant factual and clinical information about it.

Irvine J. considered that:

1. As the complication from the surgery was well-recognised but rare there would have been no reason to withhold the nature of the complication from the patient.
2. He accepted that the surgeon, Mr. McGreal, spoke to the plaintiff twice following the surgery on 20^th February and explained that the rectal stump had broken down due to the steroids and that subsequent procedures would need to be carried out to wash the abdomen to deal with infection.  He also accepted that the plaintiff seemed to understand in information.
3. He accepted that the Mr McGreal spoke with the plaintiff on four occastions following the surgery and that he fully explained what he had found during the surgery and the consequences in terms of future treatment and recovery.
4. He rejected the plaintiff’s evidence that he did not receive a proper explanation following the second procedure.
5. He believes that Mr McGreal’s notes support his evidence that he fully explained the complication of the second procedure to the plaintiff.
6. He rejected the plaintiff’s evidence that he did not seek an explanation from Mr. McGreal as the intrusive nature of the procedures meant that the defendant would have obtained the plaintiffs consent.
7. He accepted the evidence of Mr. Andrews that he had explained to the plaintiff about the pelvic infection and that he obtained his consent for at least one of the wash outs of his abdomen.  The formal consent form referred to the surgeon explaining the surgical intervention to the patient.
8. The discharge note on 8^th June 2007 and a letter dated 5^th July 2007 to the plaintiff’s GP precisely describe the nature of the initial surgery and further complications and therefore undermine the plaintiff’s argument that there was a conspiracy to hide the complications of the initial surgery and attribute those to the MRSA infection.
9. The plaintiff’s own evidence as to what he was told following the second surgery was inconsistent.  His conspiracy theory that the surgeons and nurses kept the information back from him was not pursued as it was undermined by the medical notes, the operation note, the nursing notes and the two discharge letters.
10. The medical two reports produced on behalf of the plaintiff did not refer to lack of information given to the plaintiff and stated that there was not any reason to believe that the patient had not been kept informed of the complications.
11. The complications between 12^th February 2007 and 1^st March 2007 could not have been attributed to MRSA as the first positive result of MRSA was on 1^st March 2007.

MRSA

Irvine J found:

Despite earlier evidence, in the course of cross-examination, the plaintiff accepted that he had been told of each and every clear swab result as it had become available, he having earlier maintained that the nursing staff had lied to him regarding the results and that he had not been advised of any clear test results until seven to ten days prior to discharge.

He also accepted that Mr Maylone’s dealings with the plaintiff’s sister and partner were more substantial than the brief meeting described by the sister and partner.  He believed that the family’s evidence may have been coloured by their ongoing personal fears regarding the significance of MRSA.

He accepted Mr. Maylone’s evidence that he did not tell the plaintiff or his family that MRSA had been found in the fluid of his wound as this would have made no sense given that the positive swab had been reported from a specimen obtained in the pelvis. He was also satisfied that he did not say to the plaintiff or his family that his life was in danger as a result of MRSA infection and medical notes and reports support this.

Was the plaintiff’s psychological welfare as a result of the complications taken into account by the judge?

Irvine J. decided that the plaintiff’s mental health was relevant from the date he was first advised of his MRSA infection on 1^st March 2007.  However, prior to 1^st March 2007 he experienced significant anxiety and stress due to his medical problems and had on a number of occasions discharged himself from hospital.  His life was in danger when the surgery was carried out on 12^th February 2007.  Even with optimum results the plaintiff would have experienced a great deal of upset and anxiety.   He did not get optimum results and became very unwell as a result of the complications.  On 16^th March 2007 in the course of psychiatric review the plaintiff felt he was not going to live as a result of the MRSA.  However, after 16^th March the consultant psychiatrist found him to be pleasant and cooperative with a good insight into his problems.  No psychosis was found.

Irvine J. was satisfied that the plaintiff was extremely upset and distressed during his hospitalisation in February, March and April 2007 and that his stress was heightened on learning of his MRSA infection.

Nonetheless, he did not accept the extent of the Plaintiff’s alleged anxiety and concern regarding MRSA after his discharge from hospital and his evidence was inconsistent.

Irvine J’s decision was influenced by:

(a) The plaintiff visited his GP six times in June and ten times in July 2007 and did not raise any concerns with him regarding MRSA.

(b) The plaintiff was re-admitted to Cork University Hospital with meningitis on 15th April, 2007, where he had repeat testing for MRSA and of which he was fully aware. It is difficult to understand how, in the context of these additional test results which were negative, the plaintiff could have continued to worry about MRSA.

(c) The plaintiff re-attended the defendant’s outpatient department on a number of occasions following his discharge from hospital on 5th April, 2007, and he did not raise any concerns regarding MRSA during such review.

(d) The report of Dr. Murray-Lyon dated 5th September, 2008, makes no mention of receiving instructions to the effect that the plaintiff had concerns that any of his complications might ever have been attributable to MRSA or that MRSA continued to concern him notwithstanding his clear test results as of the date of his discharge.

In dismissing the claim Irvine J stated that even if he had found in the plaintiff’s favour he would have dismissed the case on the grounds that he had not established that he had sustained a compensable injury.  In the absence of any compensable injury there is no cause of action under which damages can be claimed.

In concluding Irvine J. stated: “Regardless of the sympathy I have for the Plaintiff because of his misfortune, so early in life, to have developed a devastating bowel condition which will have lifelong consequences for him, I must nonetheless for the reasons already stated dismiss this claim which, on the evidence, I consider amounted to a wholly unmeritorious, unjustified and unwarranted attack on the medical and nursing staff of the defendant hospital who I am satisfied at all times provided him with excellent care over a period when the his life and health were at grave risk and without which he might not have survived.

De Paor -v- Financial Services Ombudsman [2011] IEHC 483 (20 December 2011)

This case arose due to a patient’s cover with Quinn Healthcare when she was diagnosed with breast cancer.  What treatment did her cover exclude?

In October 2007 the appellant Jacinta De Paor joined Quinn Healthcare medical expenses insurance scheme.  She took out a personal care plan for herself and her son.  In August 2008 she was diagnosed with breast cancer and underwent surgery in September and October 2008.  She contacted Quinn Healthcare following her surgery to enquire about cover, in particular for radiation, at the Mater Private Hospital.  They advised her that the treatment would not be covered under her Personal Care Plan, but would be covered under a Family Care Plan for a higher premium.  She changed her policy to a Family Care Plan.

Was she fully covered by Quinn Healthcare after changing to the Family Care Plan?

It later transpired that she required chemotherapy before the radiation and when she contacted Quinn Healthcare again she was informed that neither radiation nor chemotherapy was covered under her plan as her cancer was considered to be a pre-existing illness and she could not make a claim for two-years on her Family Care Plan.  Ultimately, Quinn covered eight sessions of chemotherapy but refused to cover the radiation.

Was there a delay in her treatment due to the ongoing uncertainty with her healthcare cover?

The appellant claimed that the failure of Quinn Healthcare to cover her radiation treatment caused her inordinate stress and worry and forced her to suspend further treatment until the dispute was resolved by the Financial Services Ombudsman in April 2010.

How did Quinn Healthcare respond?

Quinn Healthcare stated that De Paor was incorrectly advised during her phonecall on 13^th October 2008 as there was a waiting period of two years which would apply to the Family Care Plan following the change of scheme.  A staff member of the healthcare provider also misinformed the appellant in January 2009 as she would not be covered for chemotherapy and radiotherapy as a shortfall and in-patient excess would apply.

Quinn Healthcare rejected claims from the Mater Private Hospital, but agreed to cover eight chemotherapy sessions.  The appellant was informed on 3^rd February 2009 that radiotherapy in the Mater Private Hospital was not covered but it would be in any of the hospitals under the Personal Care Plan.  She was informed in writing that further treatment was subject to a two-year upgrade rule.

Did Quinn Healthcare offer additional cover when the matter was referred to the Financial Services Ombudsman?

When the matter was referred to the Financial Services Ombudsman Quinn Healthcare agreed to pay the outstanding claims for both radiotherapy and chemotherapy and to cover further eligible treatment and waived the two-year upgrade waiting period.  They covered all claims which had been initially rejected to sum of €8,740.05 and as a gesture of goodwill for the stress and inconvenience paid the cost of the shortfall and in-patient excess amounting to €989.  They also contacted the Mater and said that all outstanding claims would be paid and any future treatment as covered in the Family Care Plan level of cover.

The appellant received further invoices from the Mater on 26^th April 2010 which arose because her next payment run was not until 14^th May 2010 and the outstanding invoices would not be paid by Quinn Healthcare until that date.  Quinn Healthcare changed the appellant’s son’s Family Care Plan cover to October 2008 which was when she changed and agreed to cover the cost for a two year period.

What findings of the Ombudsman did the court consider on appeal?

The Financial Services Ombudsman made a number of findings, only of one which was contested by the appellant, and considered in the appeal by McGovern J.

The appellant appealed the figure of €850 for distress and inconvenience claiming it was insufficient considering the several negligent misstatements made to her which caused unnecessary distress at a time when she was vulnerable and worried about her health.  She claimed it would be very low on the District Court scale and that the Ombudsman did not act in accordance with s. 57BK(4) “according to equity, good conscience and the substantial merits of the complaint.”

The test laid down by Finnegan P in Ulster Bank v. Financial Services Ombudsman and Others was applied.

“To succeed on this appeal, the plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test, the court will have regard to the degree of expertise and specialist knowledge of the defendant. The deferential standard is that applied by Keane C.J. in Orange v. The Director of Telecommunications Regulation and Another and not that in The State (Keegan) v. Stardust Compensation Tribunal.”

The Financial Services Ombudsman submitted that the decision of Finnegan P. in the Ulster Bank case may be broken down into the following distinct elements:

(i) The burden of proof is on the appellant;

(ii) the onus of proof is the civil standard;

(iii) the court should not consider complaints about process or merits in isolation, but rather should consider the adjudicative process as whole;

(iv) in light of the above principles, the onus is on the appellant to show that the decision reached was vitiated by a serious and significant error or series of such errors;

(v) in applying this test, the court will adopt what is known as a deferential stance and must have regard to the degree of expertise and specialist knowledge of the Ombudsman.

Was the appeal granted?

In dismissing the appeal McGovern J stated

“If the Court was to treat matters such as this as an appeal on quantum in the usual sense, it is likely that such appeals would frequently come before the courts arising out of decisions of the Ombudsman. If that were permitted, it would have the effect of frustrating the purpose of the scheme which is aimed at informal resolution of consumer issues. The whole purpose of the legislative scheme is to keep the process – so far as possible – out of the courts.”

Furthermore, the appellant was given full cover and other benefits, which she would not have been entitled to had she not been misinformed.

He concluded that the issue in this appeal is not whether I would have awarded a greater sum for stress and inconvenience, having regard to all the surrounding facts, but rather, whether, “taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors”.

Burke -v- Mc Kenna [2011] IEHC 449 (05 December 2011)

This case is an action for damages for personal injury as a result of a road traffic accident which happened on 9^th September 2007.  The plaintiff was born on 22^nd November 1976.  He suffered very severe injuries including head injuries leaving him with severe disabled organic brain damage.  He was made a Ward of the High Court by order on 30^th June 2009.

There’s a major liability issue in this case because the plaintiff was involved in a previous road traffic accident on 23^rd September 2000.  He suffered serious injuries including a major head injury and recovered damages of €275,000.

Mr Justice Ryan exercised his discretion under O. 36, r. 9 of the Rules of the Superior Courts in favour of ordering separate trials of the liability and damages issues in this case.

Order 36, r. 9 is as follows:

“Subject to the provisions of the preceding rules of this Order, the Court may in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and in all cases may order that one or more issues of fact be tried before any other or others.”

Mr. Justice Ryan continued that while in most cases all of the issues are heard in the same hearing, complex brain injury cases often involve technical evidence by experts who may have to travel to testfy.  He stated: “It is not very professional to lump all the witnesses whether they are lay or technical together in the hope that somehow the arrangements will work out. It seems to me to make sense to direct separate trials of liability and damages in cases involving complex or lengthy technical, scientific or medical questions. In fact, the difficulty is to explain or justify why any other arrangement should be made.”

The case is listed for hearing on the 18th April 2012.

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