Anderson v Birthistle
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 10 May 2019 |
| Neutral Citation | [2019] IEHC 302 |
| Court | High Court |
| Docket Number | [2016 No. 2033 P.] |
| Date | 10 May 2019 |
[2019] IEHC 302
[2016 No. 2033 P.]
THE HIGH COURT
Costs – Medical negligence – Damages – Plaintiff seeking to recover costs – Whether costs should follow the event
Facts: The High Court, in a judgment delivered on 20th March, 2019, found in favour of the plaintiff, Ms Anderson, in her medical negligence action against the defendant, Mr Birthistle, who was sued as a representative of the medical and nursing staff in St. James’s Hospital, Dublin. The plaintiff was awarded damages in the sum of €63,112.48 against the defendant. This judgment dealt with the issue of costs of the action.
Held by Barr J that, having had regard to the decision of Irvine J in Wright v HSE [2013] IEHC 363 where the plaintiff failed in three out of four allegations of negligence and where there was only 20% of the time spent dealing with the issue on which the plaintiff was successful yet she recovered 65% of her costs, the decision in Naylor (otherwise Hoare) v Maher [2018] IECA 32 where the plaintiff failed on the undue influence point which consisted of 50% of his case yet he was awarded 75% of his costs, and the fact that no additional witnesses were necessitated by the temporary wire issue in this case and that the length of the trial was only marginally prolonged by an investigation of that issue, it was just that the plaintiff should recover 80% of her costs in this case.
Costs awarded.
In a judgment delivered on 20th March, 2019, [2019] IEHC 172, the court found in favour of the plaintiff in her medical negligence action against the defendant, who was sued as a representative of the medical and nursing staff in St. James's Hospital, Dublin. The plaintiff's claim rested on two separate allegations of negligence. Firstly, she alleged that her treating cardiologist and the surgeon who had removed her temporary pacemaker, had been negligent in their decision not to insert a temporary pacemaker, also known as a temporary wire, for use in the period after removal of the permanent pacemaker and prior to the insertion of a new pacemaker some days later. Secondly, she alleged that there was failure on the part of her treating doctors and on the part of the nursing staff to look after her post-operative management in a safe and proper manner. In particular, it was alleged that they were negligent in failing to ensure that she was confined to bed in the days when she did not have any temporary wire, due to the fact that she had a premorbid history of syncope and falls.
The plaintiff's permanent pacemaker had been removed on 17th May, 2014. On 18th May, 2014, at approximately 23:18hrs, she had a syncope episode during which she fell and struck her head. The plaintiff alleged that her injuries had been caused due to the aforementioned negligence on the part of her treating doctors and the nursing staff.
In the substantive judgment, the court held that there was no negligence on the part of either the plaintiff's cardiologist or the surgeon, in making the decision not to insert a temporary wire in the circumstances which pertained in this case. The court did, however, find that there was negligence on the part of the plaintiff's cardiologist for failure to instruct the nursing staff that, having regard to the plaintiff's premorbid history of syncope and falls, she should be confined to bed as she did not have a temporary wire in place and was, therefore, once again at risk of syncope and falls. The court further found that in allowing the plaintiff to ambulate freely about the ward, there was a failure on the part of the doctors and nursing staff in and about her post-operative management. Accordingly, the court found in favour of the plaintiff on the management issue.
The plaintiff was awarded damages in the sum of €63,112.48 against the defendant. This judgment deals with the issue of costs of the action.
It was submitted on behalf of the plaintiff that the general rule in relation to costs provided for in O. 99 of the Rules of the Superior Courts was that costs should follow the event. It was submitted that as the plaintiff had been successful in establishing liability against the defendant and had recovered damages within the jurisdiction of the High Court, the general rule should apply and she should be awarded the costs of the action.
In response, counsel for the defendant submitted that that was an overly simplistic way of viewing the matter. It completely ignored the fact that the plaintiff had brought her claim on two grounds. While she had succeeded on the second ground, being the management issue, she had failed on the first ground, being the temporary wire issue. It was submitted that that had been a very significant issue, as the plaintiff had in effect challenged the general practice in Irish hospitals in relation to the decision not to use a temporary wire in the circumstances which pertained in the plaintiff's case. Accordingly, it was a matter upon which the defendant had to call cogent expert evidence. The defendant had been successful in its defence on this issue. In these circumstances, it was submitted that it would be unjust and inappropriate that the plaintiff should recover all her costs, when she had not been successful on a significant element of her claim.
Counsel pointed out that a significant amount of the trial, which lasted some seven days, was directed to the cross examination of the plaintiff's expert witness on the temporary wire issue and in calling evidence from the defendant's expert on that issue. It was submitted that as the plaintiff had lost on that issue, she should not be allowed her costs in respect of those days, or the costs of the plaintiff's expert, Mr. Cripps, who gave evidence primarily on the temporary wire issue.
Counsel submitted that of the seven days at hearing, the court should discount Day 2 of the hearing, which was effectively a day lost, due to the fact that the plaintiff's nursing expert, Ms. Mudd, had become unwell on her way to Manchester airport and accordingly, was not able to attend to give evidence that day. While the plaintiff's husband had been called to give evidence, that had been very brief. He had not been cross examined on behalf of the defendant. If that day was discounted, this meant that the remainder of the hearing amounted to six days. Counsel submitted that of that period, some four days were spent dealing with the temporary wire issue.
It was submitted by counsel on behalf of the defendant that having regard to the decisions in Veolia Water UK plc v. Fingal County Council [2007] 2 I.R. 81, Wright v. HSE [2013] IEHC 363, and Dardis v. Poplovka [2017] IEHC 249, there was clear authority for the proposition that where a plaintiff was successful in the overall action, but had been unsuccessful in respect of a significant portion of their claim, either on liability or quantum, they should not be awarded costs in respect of the period that was spent dealing with that issue on which the plaintiff had been unsuccessful.
Indeed, counsel for the defendant went further and submitted that in this case, the defendant should be awarded the costs of the four days which he submitted had been spent dealing with the temporary wire issue. This would mean that the plaintiff would be awarded the costs of two days of the trial and the defendant would be awarded the costs of the remaining four days. The two sets of costs could then be set off one against the other.
In response to these submissions, Mr. O'Neill, S.C., on behalf of the plaintiff submitted that while the plaintiff had been unsuccessful on the temporary wire issue, she had succeeded on the liability issue, in that she had been successful on the management issue. She had also recovered damages within the jurisdiction of the High Court in respect of her injuries. She had not been excessive in relation to the number of expert witnesses that she had called at the trial. She had called one witness in respect of the management issue. She had also called Mr. Cripps, who had given evidence on both the temporary wire issue and the management issue. The defendant had also called two expert witnesses. One of these was a nursing expert, who gave evidence on the management issue. The other, Dr. Quigley, gave evidence on both of the liability issues. In these circumstances, counsel submitted that there was nothing like four days spent dealing exclusively with the temporary wire issue. Nor were there any witnesses that were specifically called in relation to the temporary wire issue alone.
Counsel pointed out that the in the Wright case, Irvine J. had held that of the 21 days spent at hearing, 80% of that time had been spent dealing with issues on which the plaintiff had been ultimately unsuccessful. In that case, the plaintiff had made four separate allegations of negligence. She had only succeeded in establishing one of these heads of claim against the defendants. Notwithstanding that, Irvine J. had awarded her 65% of her costs.
Finally, it was submitted that as the expert witnesses in question, being Mr. Cripps and Dr. Quigley had given evidence on both of the liability issues and as there had been no appreciable prolonging of the hearing of the action as a result of the investigation of the temporary wire issue, it was just and fair that the plaintiff should be awarded the full costs of the action.
The law in relation to the awarding of costs in personal injury and other actions has been developed in a number of decisions in recent years. The seminal case is the judgment of Clarke J. (as he then was) in Veolia Water UK plc v. Fingal County Council [2007] 2 I.R. 81. The learned judge began by pointing out two fundamental principles that should...
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The Appropriate Care of a Ward of Court
...other relevant case law on this issue has recently been very helpfully summarised and considered by Barr J. in Anderson v. Birthistle [2019] IEHC 302. In that case, Barr J. held that the trial was prolonged to some extent by virtue of the investigation of an aspect of the plaintiff's case w......