Brogan v Bennett

CourtSupreme Court
Judgment Date01 January 1955
Date01 January 1955

Supreme Court.

Brogan v. Bennett
Joseph H. BENNETT, Defendant (1)

Negligence - Unqualified person purporting to treat tuberculosis - Gross mistreatment - Death of person treated - Duty of unqualified person in treating patients - Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), ss. 1, 2.

Case Stated.

The plaintiff, Christopher Brogan, the father of Christopher Brogan, junior, deceased, instituted proceedings on behalf of himself and his wife as dependants of Christopher Brogan, junior, in the Circuit Court claiming damages against the defendant, Joseph H. Bennett, for negligence and breach of contract on the part of the defendant in the treatment of the said Christopher Brogan for tuberculosis, as a result of which negligence and breach of contract Christopher Brogan died. The Circuit Judge having dismissed the claim, the plaintiff appealed to the High Court on Circuit, sitting at Longford.

At the conclusion of the case the trial Judge (Kingsmill Moore J.) acceded to the request of counsel for the defendant to state a case for the determination of the Supreme Court, pursuant to s. 38, sub-s. 3, of the Courts of Justice Act, 1936.

The Case Stated was as follows:—

"This proceeding was instituted by civil bill in the Circuit Court. The plaintiff, the father of one Christopher Brogan, junior, deceased, claimed, on behalf of himself and his wife, Elizabeth Brogan, under the provisions of the Fatal Accidents Act, the sum of £300 damages against the defendant, Joseph H. Bennett. The plaintiff alleged that the death of the said Christopher Brogan, junior, was due to the negligence and lack of skill of the said Bennett who had, for reward, undertaken the treatment and cure of the deceased, then suffering from tuberculosis. The defendant denied that he had undertaken the treatment, and denied negligence. I incorporate the civil bill and defence in this Case Stated.

The following facts were proved or admitted before me. Christopher Brogan, junior, then aged 33 years, was admitted on the 5th January, 1950, to the County Longford Tuberculosis Hospital. He was suffering from tuberculosis of both lungs and the disease had already made considerable progress,

there being a marked cavity in the left apex, incipient cavitation in the right apex, and minor infiltration in other spots. In hospital he received the standard treatment of rest, a full and nourishing diet and a course of streptomycin. He responded rapidly, gained weight, lost any toxaemic symptoms, and suffered less from cough. The disease was arrested, and although he was by no means cured, the curative processes were well under weigh. In early June his medical advisers contemplated keeping him in Longford Hospital till his right lung was still further recovered, and then transferring him to Castlerea Chest Surgical Hospital for theracoplasty, to eliminate the cavity in the left lung. It was confidently anticipated that in a period of about two years or a little more he would be able to resume a normal life and would be fit to take up any of a large range of gainful occupations, including that of hackney driver.

Some time before the 15th June there came into his hands, and into the hands of a number of other patients in the hospital a pamphlet entitled

'T.B. Conquered by Mr. J. H. Bennett, Lamagh, Newtownforbes, of Kelly & Bennett, Divining Specialists, Longford. Telephone: Longford 53.'

It was admitted that the defendant was responsible for the printing, publication and general dissemination of this pamphlet, but it was not proved or admitted that he had personally sent it or caused it to be sent to Christopher Brogan, junior, or to the other patients in the hospital.

The pamphlet purported to reproduce letters from grateful patients, who had been cured of tuberculosis as a result of medicine supplied by the defendant and treatment by him and also contained short notes of other cases when the treatment was alleged to have proved equally successful. I incorporate this pamphlet in the Case Stated. On the 15th June, Joseph Coyle, a cousin of the patient, and Mr. and Mrs. Wiggins, his uncle and aunt, visited him in hospital. He showed them the pamphlet, with which he appeared impressed, and asked them to get into touch with the defendant with a view to inducing the defendant to undertake his treatment. Coyle and the two Wigginses then and there set out to visit the defendant at defendant's house. After considerable delay, owing to the number of people already waiting to see the defendant, they eventually were admitted to his presence. They asked him could he cure tuberculosis, and he said: "Yes." They then mentioned the case of Christopher Brogan. The defendant produced a bullet on the end of a string, and said he was going to "X-ray" the patient. He then caused the pendulum to oscillate and pronounced the case to be a fairly bad one. He purported to diagnose the exact percentage of impairment of all the main organs of the patient, and claimed that by means of his pendulum he could diagnose the ailments of a person at the other end of the world. He said that he could guarantee to cure Christopher Brogan and make him fit for work in three months' time. His fees, he said, were £100 for a rich person and £20 for a poor, and, after negotiations he...

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