O'Leary (A Minor) v Health Service Executive, Ireland

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 10 February 2016
• Neutral Citation: [2016] IECA 25
• Court: Court of Appeal (Ireland)
• Docket Number: [2014 No. 334]
• Date: 10 February 2016

[2016] IECA 25

THE COURT OF APPEAL

Ryan P.

[2014 No. 334]

The President

Finlay Geoghegan J.

Peart J.

BETWEEN

ALAN O'LEARY (A MINOR SUING BY HIS SISTER AND

NEXT FRIEND, CHARLENE O'LEARY)

APPELLANT/PLAINTIFF

AND

THE HEALTH SERVICE EXECUTIVE, IRELAND,

THE ATTORNEY GENERAL AND MARTIN HEALY

RESPONDENTS/DEFENDANTS

Negligence ? Battery ? Objective injustice ? Appellant seeking compensation for injury ? Whether the evidence relied on by the appellant to support his claim fell short of the requirements in law to establish a prima facie case against the respondents

Facts: The plaintiff/appellant, Mr O?Leary, claimed that he sustained brain injury caused by the measles vaccine which was given to him at the age of 15 months on 16th February 1988 by the fourth defendant/respondent, Dr Healy, a GP in Cork. He was given this treatment as part of a national programme of vaccination put in place by the State and administered by the first defendant/respondent, the HSE. The claim against the doctor was in respect of negligence in allegedly failing to obtain the consent of the plaintiff?s mother, and it was also alleged on the same basis that the administration of the vaccine by injection constituted a battery by the doctor unless it was excused by a valid consent of the mother. The case against the State was summarised as being that the small group of persons who suffered injury as a result of receiving the measles vaccine in pursuance of a legitimate State immunisation scheme are the victims of an objective injustice whereby their interests were sacrificed in the State?s interest of promoting measles immunity generally within society; the State was accordingly obliged to compensate such persons who include the plaintiff among their number. Proceedings were instituted in November 2002 on the plaintiff?s behalf by his mother and next friend, but she died in 2007. The plaintiff was therefore left with a severe evidential deficit in regard to material aspects of the claim. The case was heard in the High Court in June and July 2011. The defendants applied to dismiss the plaintiff?s claim on the grounds that the evidence relied on to support it fell short of the requirements in law to establish a prima facie case against the defendants. The judge delivered an ex tempore ruling in which he acceded to the applications. From that decision, the plaintiff appealed to the Court of Appeal. The plaintiff submitted that the judge failed to deal with the evidence adduced before the court and had erred in relation to the facts.

Held by Ryan P that the fact that the judge entertained an application for the dismissal of the action at the close of the plaintiff?s evidence was not a good ground of appeal; it was a matter of discretion and the trial judge exercised it properly. Ryan P held that the judge followed the jurisprudence on this procedural issue; he considered the relevant points and applied the correct test, which was to take the plaintiff?s case at its highest. Ryan P held that, as a matter of logic and evidence, failure to record the consent of the plaintiff?s mother to the vaccination of her child can only be considered relevant if there was an obligation to make a note or if it was an accepted practice to do so. Ryan P held that the plaintiff?s criticism of the trial judge for failing to make the finding that the doctor did not give a warning because it was not recorded in his note is not a valid criticism because the judge would not have been entitled to come to the conclusion that the plaintiff needs for this purpose. Ryan P held that the judge was correct in holding that there was no evidence as to how the plaintiff?s mother would have reacted to any particular warning. Ryan P held that the plaintiff had not demonstrated any basis for overturning the decision of the High Court.

Ryan P held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by the President on 10th February 2016

Introduction

1 The plaintiff was born on 1st November 1986 in Cork. He is incapable of independent living and is looked after by his sister. He suffers from intellectual deficits and has serious incapacities including mental retardation, learning difficulties, hyperactivity and other disabilities.

2 The claim made on his behalf in these proceedings is that he sustained brain injury caused by the measles vaccine which was given to him at the age of 15 months on 16th February 1988 by the fourth defendant, Dr. Martin Healy, a General Practitioner in Cork. He was given this treatment as part of a national programme of vaccination put in place by the State and administered by the first defendant, the HSE. It is not disputed that Dr. Healy performed the vaccination.

3 The claim against the doctor was in respect of negligence in allegedly failing to obtain the consent of the plaintiff's mother, and it was also alleged on the same basis that the administration of the vaccine by injection constituted a battery by the doctor unless it was excused by a valid consent of the mother.

4 The case against the State is summarised in the plaintiff's submissions on this appeal as being that the small group of persons who suffered injury as a result of receiving the measles vaccine in pursuance of a legitimate State immunisation scheme are the victims of an objective injustice ?whereby their interests were sacrificed in the State's interest of promoting measles immunity generally within society?. The State is accordingly obliged to compensate such persons who include the plaintiff among their number.

5 Proceedings were instituted in November 2002 on the plaintiff's behalf by his mother and next friend, but she died on 26th December 2007. The plaintiff was therefore left with a severe evidential deficit in regard to material aspects of the claim.

6 The oral evidence given on behalf of the plaintiff was provided by two independent expert medical witnesses, Professor Lesley Findley, consultant neurologist and Dr. Istvan Nagy, a neuroscientist. The plaintiff sought to rely on certain documentary material comprising health and development and medical records of the plaintiff that were obtained on discovery. In respect of a report of the Vaccine Damage Steering Group of the Department of Health published June 2009, it was submitted on behalf of the plaintiff that ?this report described the scientific and moral basis upon which the authors of the report considered that the State was obliged to make reparation to those injured by the system of vaccination operated by the State?.

7 The case was heard in the High Court before Quirke J. over eleven days in June and July 2011. After the evidence of the plaintiff had concluded, the defendants applied to dismiss the plaintiff's claim on the grounds that the evidence relied on to support it fell short of the requirements in law to establish a prima facie case against the defendants. The judge delivered an ex tempore ruling in which he acceded to the applications. From that decision, the plaintiff appeals to this Court.

The Judgment of the High Court

8 Quirke J. said that in making his determination, he was ?required to take the evidence adduced on behalf of the plaintiff at its highest point?. He began with the case against the General Practitioner, Dr. Martin Healy. The judge recorded Professor Findley the consultant neurologist as confirming that his criticism of Dr. Healy was confined to the fact that the medical notes recording the visit of the plaintiff [on 16th February 1988] during which the plaintiff was injected with the Measles vaccine, did not record warnings or advices by Dr. Healy to the plaintiff's mother of risks attendant upon the injection with the vaccine. Professor Findley was of opinion that Dr. Healy ought to have made a note recording an appropriate warning dealing, inter alia, with the remote risk of brain damage associated with the vaccine. He admitted that he was unfamiliar with the practice of notation by general practitioners in Cork in 1988 in regard to informed consent. The judge said that there was no evidence to enable the court to determine what the probable reaction of the plaintiff's mother would have been if a warning, as specified by Professor Findley, had been given.

9 The judge considered the contention on behalf of the plaintiff that the court should infer from the absence of a note that Dr. Healy had failed to give the requisite warning and that this represented prima facie evidence of negligence on his part. He said that the difficulty was that even if such inference could be drawn, no evidence had been adduced to indicate that the plaintiff's late mother would have refused to permit vaccination to go ahead. Quirke J. said that Dr. White, the plaintiff's counsel, ?acknowledges that this absence of evidence is potentially fatal to the plaintiff's claim in relation to informed consent. He contends, however, that he can overcome this evidential deficit by introducing the plaintiff's claim within another concept?.

10 That alternative basis was the proposition that giving the child the injection constituted a battery unless it was carried out with the consent of the child's parent and guardian. Therefore, the default position, according to Counsel, was that there was a battery but it was capable of being rebutted by evidence of consent. That would have to be a proper consent, failing which the inference of a battery would stand. The judge cited McMahon & Binchy ?Law of Torts? under the heading ?Consent to Medical Procedures? and quoted a substantial passage dealing with the case of Walsh v. Family Planning Services [1992] 1 I.R. 496, where O'Flaherty J. said: ?If there had been a failure to give a warning as to possible future risks that would not involve the artificial concept of an assault, but rather a possible breach of a duty of care giving rise to a claim in negligence. Claims of assault...