Kelly v Board of Governors of St. Laurence's Hospital

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,WALSH J.,Henchy J.,McCarthy J.
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-SC 2420
• Docket Number: [1983 No. 7141P]
• Court: Supreme Court
• Date: 01 January 1989

1988 WJSC-SC 2420

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

282 & 289/87

KELLY v. ST LAURENCE'S HOSPITAL

PATRICK KELLY

Plaintiff/Respondent

and

THE BOARD OF GOVERNORS OF ST. LAWRENCE'SHOSPITAL

Defendants/Appellants

1 JUDGMENT delivered on the 13th day of October 1988by FINLAY C.J.

2 This is an appeal brought by the Defendants against an Order made in the High Court on the 31st day of July 1987 entering judgment for the Plaintiff for £90,000 damages for personal injuries sustained by him in an accident which occurred on the 15th July 1981, when he was a patient in the hospital maintained by the Defendants. The Plaintiff sued the Defendants in negligence and breach of duty and the action was tried by a judge sitting with a jury.

3 The Defendants appealed against the entire of the Order on a number of grounds which may conveniently be dividedinto three separate issues.

4 They are:

5 (1) That at the conclusion of all the evidence in the case, including the evidence tendered on behalf of the Defendants the learned trial Judge should have withdrawn the case from the jury as there was no evidence of negligence to go to them.

6 (2) That there was a mistrial in that, firstly, the learned trial Judge's direction on the issue of negligence could have been interpreted by a jury as indicating that if the Plaintiff established a possibility of his injuries being caused by the negligence of the Defendants that he was entitled to succeed and, secondly, on the basis that the learned trial Judge failed adequately or at all to put the defence of the Defendants to the jury in his charge and, in particular, failed to remind the jury of evidence given by Professor Malone on behalf of theDefendants.

7 (3) That the assessment of damages and, in particular, the assessment of damages with regard to loss of earnings up to the date of the trial and into the future was excessive

The facts

8 The Plaintiff was a single man aged thirty-seven years of age at the time of the trial and was a boiler-maker or steel fabricator.

9 In the year 1974 he was diagnosed as showing symptoms of epilepsy and was seen by a consultant in the Defendants' hospital, in theout-patients" department, on referral by his general practitioner. He was then diagnosed to be suffering from right temporal lobeepilepsy.

10 In the following year as a result of further manifestations of an epileptic condition he attended a clinic maintained by the Eastern Health Board in Killester where he was seen by a psychiatrist. In June 1976 he suffered a psychotic incident in which he displayed abnormal behaviour which apparently was associated with an epileptic attack and as a result he spent a short period as an in-patient in St. Ita's Psychiatric Hospital in Portrane.

11 From his first diagnosis in 1974 the Plaintiff had been on anti-epileptic medication and this was varied andincreased during the succeeding years. From 1976 on, as a result of the psychotic incident he was, by the psychiatrist who then treated him, placed on medication intended to reduce the incidence of schizophrenia, namely, a drug known as anatensol, which was one of a group of drugs counterproductive to the controlling drugs for epilepsy.

12 In the succeeding years prior to 1981 his attacks of epilepsy remained, broadly speaking, out of control and were accompanied on occasions by some evidence of automatism and by further psychotic abnormalbehaviour.

13 As a result he was again referred to the consultant in theDefendants" hospital who decided to admit him for the purpose of further tests and observation, largely in an effort to ascertain as to whether the abnormal behaviour which was considered possibly to be psychotic in origin was a manifestation of a condition of schizophrenia or whether it was a manifestation of the temporal lobe epilepsy in which case the medication under anatensol could be ceased and different treatment or medication with regard to the temporal lobe epilepsy could be commenced.

14 The Plaintiff was entered by the hospital as a routine admission as distinct from an urgent admission, and some weeks later was admitted to the Defendants' hospital. He was seen by members of the medical staff on admission and within three days of admission was seen by the consultant who had previously examined and treated him. Upon admission on Sunday, 12th July, the Plaintiff was taken off all medication, and it was agreed at the trial that the likely result of that, which was a necessary part of his treatment, was an increased risk of further attacks. At the time the Plaintiff was admitted to hospital he was having attacks at the rate of something over forty a year but up to that time had continued working in regular employment as a steel fabricator, though avoiding working on heights, and apparently lived on his own and had no history of having injured himself in any of these attacks.

15 The Plaintiff was in a ward with a number of other men which was the neuro-surgical and nurological ward of the Defendants" hospital and no special instructions were issued as to particular nursing care for him, though themedical and nursing staff dealing with him were made aware of his history and the condition from which he suffered. Late at night on the 15th July or early in the morning of the 16th July the Plaintiff left the ward, crossed a corridor of the hospital and, immediately opposite the door of the ward which he had left, entered a ladies" toilet which was situated on the other side of the corridor. This toilet consisted of two cubicles and in a separate portion of the room a window looking out on a yard of the hospital. It would appear from the evidence that the Plaintiff (who had no recollection of the incident at all) managed to move a number of empty bottles which were on the window-still and to place a mobile commode under the window, presumably as an aid to climbing on to it. He then climbed through the window which was open, or which he opened, and fell about 20 feet to the ground below. The Plaintiff suffered extensive physical injuries. With regard to the issue of negligence the question left by the learned trial Judge to the jury was in the following form:

"Were the Defendants, their servants or agents negligent in not requiring that the Plaintiff beattended when going to the toilet?"

16 Although as indicated, the Defendants have appealed against the leaving of the issue of negligence to the jury there was no appeal against the form of this question nor did the Plaintiff cross-appeal against iteither.

17 The jury answered that question Yes and assessed damages under the following heads:

1.	Loss of earnings to date	£25,000
2.	Loss of earnings in the future	£40,000
3.	General damages
	(i) to date	£15,000
	(ii) in the future	£10,000
		—
	Total	£90,000

The leaving of the case to the jury

18 I am satisfied that the Defendants" appeal against the leaving of this case to the jury must fail. The submissions in support of this part of the appeal were largely based upon an assertion that the Plaintiff had not established by any evidence that the conduct of the Defendants in the care and treatment of the Plaintiff whilst he was in hospital and leading up to this accident was inconsistent with generally accepted medical practicewas not shown to have been inherently defective. Reliance was, of course, placed on the decision of this Court in O'Donovan v. The Cork Country Council & Ors. 1967 I.R.

19 I am satisfied, however, that is appears from the form of the question left to the jury, the propriety of which is not challenged, that this is more precisely a case where the issue is one of nursing care and attention than it is of one where the allegation of negligence is to be categorised as negligence in medical treatment. Undoubtedly, the extent and nature of the care and attention which a reasonably careful hospital would have afforded to the Plaintiff whilst he was an in-patient there on the 15th July 1981 and in particular, of course, the question as to whether a reasonably careful hospital staff would have arranged for a person to attend him when he left the ward in the middle of the night to go to the toilet, depends to a very large extent on the foreseeability from a medical point of view of the risk that the Plaintiff would, if allowed to go unattended to the toilet in the middle of the night, injure himself in some way.

20 That does not, however, seem to me to make this a case solely to be tested by the standards which have been accepted by the courts with regard to allegations of negligence in treatment afforded to their patients by professional medical people.

21 Evidence was given to the jury of the previous history of the Plaintiff which I have briefly summarised in this judgment. Evidence was given by Dr. O'Connor, a specialist in psychiatry and neurology, practising in England, that in his view a reasonable standard of nursing care for the Plaintiff, in all the circumstances of the case, would have been that at night, at least, when there were leas people about in a position to observe him, that he should have been accompanied to the toilet when he left the ward. Even in the absence of evidence by Dr. O'Connor that this constituted any sort of generally accepted medical practice with regard to the care of persons with like conditions, this combination of evidence, in my view, was sufficient to warrant the leaving of the case to the jury by the learned trial judge. I would, therefore, dismiss this part of the appeal.

Alleged mistrial

22 The learned trial judge in the course of his charge pointed out to the jury on more than one occasion the general standard of proof which was upon the Plaintiff as being the necessity to establish the facts necessary to support his claims as a matter of probability to the satisfaction of the...