O'Driscoll v Hurley

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Irvine
• Judgment Date: 08 July 2015
• Neutral Citation: [2015] IECA 158
• Docket Number: Appeal No. 2014/777
• Date: 08 July 2015

Michael O'Driscoll (a minor, suing by his next friend, Breda O'Driscoll)

Plaintiff/Appellant

and

Michael Hurley and Health Service Executive

Defendants/Respondents

[2015] IECA 158

Ryan P.

Irvine J.

Hogan J.

Appeal No. 2014/777

THE COURT OF APPEAL

Clinical negligence – Personal injuries – General damages – Plaintiff seeking general damages – Whether judgment of High Court should be set aside for failure to set out a synopsis of the evidence adduced

Facts: The plaintiff, Mr O”Driscoll, in February, 2013, was awarded by the High Court with a sum of €50,000 by way of general damages in respect of personal injuries sustained by him as a result of clinical negligence on the part of a surgeon attached to Kilkenny Regional Hospital in the course of an appendectomy procedure. That award, which included a costs order in his favour, was made following a four day hearing that was confined to an assessment of the nature and extent of the injuries sustained by him as a consequence of that negligence. The plaintiff maintained that the judgment of the High Court judge should be set aside as unsatisfactory in that it failed to set out a synopsis of the evidence adduced; it did not analyse why the evidence of one expert witness was preferred to that of another and it did not provide adequate reasons for the conclusions reached. In addition, it was asserted that the High Court judge failed to compensate the plaintiff for certain sequelae of the defendant”s negligence and that, as a result, the award of damages was inadequate. Finally, it was maintained that the trial was unsatisfactory insofar as the High Court judge allegedly precluded counsel from pursuing a particular line of cross-examination in relation to one of the defendant”s expert witnesses.

Held by Irvine J that she was not satisfied that that there is any authority to support the proposition that a trial judge must set out in his or her judgment a synopsis of the evidence of the witnesses such that in default that judgment may be set aside as unsatisfactory and a new trial ordered. She also reject the plaintiff”s submission that the High Court judge failed in his duty to set out the reasons critical to his conclusions. Irvine J held that there was no basis for the High Court judge to make an award of compensation in respect of the plaintiff for post-traumatic stress disorder. Accordingly, she rejected the submission made by the plaintiff that the judgment of the High Court judge was in any way deficient for want of reasons being provided for his conclusions. Irvine J held that it was impossible to argue that the plaintiff was not compensated for the most significant of the injuries sustained by him as a consequence of the defendant”s negligence. As to the failure of the High Court judge to award compensation to the plaintiff in respect of his enlarged bladder, Irvine J was satisfied that this was not an omission. Irvine J held that, having regard to the High Court judge”s findings of fact as to the cause of the plaintiff”s bullying, the at best multi-factorial nature of the plaintiff”s post-traumatic stress disorder and the depressive symptoms exhibited by the plaintiff as well as High Court judge”s rejection of the plaintiff”s complaint of ongoing enuresis, there was no basis, from a causation perspective, for the High Court judge to make an award of damages for such an injury. Irvine J was satisfied that where it is alleged that the trial judge may have overlooked an injury or injuries which the appellate court is satisfied, on the evidence, were relatively modest in the context of the overall claim, it should be guided in its conclusions by reference to the award of damages made in respect of the injuries identified by the trial judge with particularity in his or her judgment. Applying that approach to the facts of the case, Irvine J was satisfied that the sum of €50,000 so awarded by way of general damages would be within the range that might reasonably have been awarded by the High Court judge taking into account the risk of adhesions and the plaintiff”s nightmares.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 8th day of July 2015

1 This is the plaintiff's appeal against the judgment and order of the High Court (O'Neill J.) dated 20th February, 2013. On that date, the High Court judge awarded the plaintiff a sum of €50,000 by way of general damages in respect of personal injuries sustained by him as a result of clinical negligence on the part of a surgeon attached to Kilkenny Regional Hospital in the course of an appendectomy procedure. That award, which included a costs order in his favour, was made following a four day hearing that was confined to an assessment of the nature and extent of the injuries sustained by him as a consequence of that negligence.

2 The plaintiff maintains that the judgment of the High Court judge should be set aside as unsatisfactory in that it fails to set out a synopsis of the evidence adduced; it does not analyse why the evidence of one expert witness was preferred to that of another; and it does not provide adequate reasons for the conclusions reached. In addition, it is asserted that the High Court judge failed to compensate the plaintiff for certain sequelae of the defendant's negligence and that, as a result, the award of damages is inadequate. Finally, it is maintained that the trial was unsatisfactory insofar as the High Court judge allegedly precluded counsel from pursuing a particular line of cross-examination in relation to one of the defendant's expert witnesses.

Background facts

3 The plaintiff was born on 10th March, 1997. He had his appendix removed in St. Luke's Hospital in Kilkenny on 28th January, 2006. It is common case that his bladder was perforated in the course of that surgery, that he developed peritonitis and that he became acutely unwell. As a result, the plaintiff was required to undergo a surgical repair three days later. His recovery was not without complication: he was catheterised for several days, and this had to be replaced on one occasion due to difficulties with voiding urine. He was hospitalised for a period of eight days in total and, all in all, had an extremely distressing experience. The latter part of his stay took place in The Mercy Hospital in Cork to which he was transferred following the bladder repair, so that he could be nearer to his parents. Unfortunately, these events took place only a number of months after the plaintiff's mother had given birth to a daughter, Brigid, who suffers from the most severe type of epilepsy. As a result, she was not able to be with her son for the totality of the period for which he was hospitalised, much to his understandable upset.

4 It is evident from the pleadings and the evidence in the High Court that the principal injuries which the plaintiff sought to associate with the defendant's negligence were as follows:-

1. A complaint that he developed enuresis, a condition which he maintained continued to affect him several nights a week up to the date of trial;

2. A complaint that he had developed an enlarged bladder as a result of his reluctance to pass urine. That reluctance, he maintained, stemmed from pain experienced by him on emptying his bladder, a development that emerged post surgery; and

3. A complaint that he had developed and continued to suffer from the symptoms of post-traumatic stress disorder, one such symptom being nightmares referable to his hospitalisation and surgery.

5 I will endeavour to summarise the High Court judge's findings in respect of each of these claims.

Enuresis

6 The High Court judge concluded that the plaintiff's claim in respect of ongoing enuresis was simply not credible. His stated reasons for reaching that conclusion were as follows:-

(i) The plaintiff's mother's account as to the frequency of his bed wetting episodes differed from that of the plaintiff himself.

(ii) While the plaintiff had attended with his general practitioner seventeen times between February, 2006 and August, 2010, no note had been made by his doctor of any complaint of enuresis

(iii) The High Court judge rejected Mrs. O'Driscoll's explanation for failing to report a problem of this magnitude to her G.P. Her explanation had been that her son had asked her not to do so. Having found her to be a careful and conscientious parent, the High Court judge stated that he could not accept that she would have adopted such an approach to his welfare.

(iv) The fact that Mrs. O'Driscoll had changed her evidence on re-examination when she stated that she had in fact mentioned her son's bed wetting to the G.P., evidence which the High Court judge found to be inconsistent with the medical records.

(v) The High Court judge did not accept as credible the plaintiff's evidence that, to his mother's knowledge, he brought his wet sheets downstairs and put them into the washing machine in the middle of the night three to five nights a week, so that his brother Ronan, with whom he shared a room, would not find out about his problem.

(vi) The plaintiff had not attended the hospital for a review appointment in March, 2006, as might have been expected had he been suffering some ongoing complication.

(vii) Mrs. O'Driscoll had not mentioned enuresis when the plaintiff was reviewed in the Mercy Hospital Cork in either August or October, 2006, evidence that the High Court judge considered to be inconsistent with ongoing problems of that nature.

(viii) The first doctor to whom enuresis had been mentioned was Mr. Dermot Lanigan, consultant neurologist, retained on behalf of the defendants, and he saw the plaintiff on 10th November, 2011, some five years post surgery.

(ix) The plaintiff had been assessed by two...