McGrath v Kiely and Another

Judgment Date18 December 1965
Date18 December 1965
CourtSupreme Court
McGrath v. Kiely and Another.

Contract - Surgeon and patient - Solicitor and client - Breach of contract - Damages.

The plaintiff was involved in a motor accident and sustained multiple serious injuries for which she was treated by the first-named defendant, who is a surgeon, and in respect of which she retained the second-named defendant as her solicitor to prosecute a claim for damages for negligence in the High Court on her behalf. One of the injuries sustained by her was a fracture of the left clavicle. This injury was omitted by the first-named defendant from his medical reports furnished for the purpose of the proceedings, and, although the second-named defendant was aware of the injury, it was not specifically brought to the attention of counsel for the plaintiff until the morning of the hearing. The defendants had lodged in Court with their defence the sum of £1,255 and offered £1,500 in settlement, which offer was refused. The case went to hearing on the injuries as pleaded and the jury awarded the plaintiff £1,000 for general damages and £235 for spacial damages making in all the sum of £1,235. The usual consequential order as to costs was made and the plaintiff became liable to pay a total sum of £597 for costs.

The plaintiff thereupon brought proceedings against both defendants, claiming damages in negligence and breach of contract, alleging that if the fractured clavicle and the consequent pain and suffering had been pleaded and considered by the jury she would have been awarded a sum in excess of that lodged in Court and also claiming as damages the costs for which she had been made liable.

Held by Henchy J. 1, that each defendant was in breach of his contract with the plaintiff; that the plaintiff suffered damage thereby, and that this damage was not too remote;

2, That if the fractured clavicle had been pleaded, the defendants would probably have lodged £1,500 with their defence and that if the case had proceeded to trial before the same jury, with the fracture of the clavicle taken into account as one of the items of injury, the jury would probably have awarded the plaintiff £1,335 damages;

3, That, accordingly, the plaintiff had lost an estimated sum of £100 through the failure of the defendants to perform their contracts with her and she was therefore entitled to a decree for £100 against them both.

Plenary Summons.

The plaintiff, Margaret McGrath, brought proceedings in the High Court, claiming damages for negligence and breach of contract against the defendants, Patrick Kiely, surgeon, and Michael Powell, solicitor.

The plaintiff had suffered multiple serious injuries when the motor car in which she was travelling as a passenger was involved in a collision. She engaged the second-named defendant, as her solicitor, to prosecute her claim for damages in the High Court. The first-named defendant, a surgeon, had treated the plaintiff for her injuries and had undertaken to furnish medical reports as to her injuries and condition to the second-named defendant to enable him to formulate, and to prosecute, her claim. Owing to an omission from the reports furnished by the first-named defendant and the failure of the second named-defendant to detect this omission, a material injury of the plaintiff's was not pleaded and accordingly was not in issue on the trial of the action, in which the jury awarded the plaintiff £1,000 for general damages and £235 for special damages. The defendants had lodged in Court with their defence the sum of £1,255 and, later, had offered the sum of £1,500 in full settlement of the claim. As the amount awarded by the jury was less than the sum lodged in Court, the plaintiff was made liable to pay the costs of the defendants from the date of the said lodgment, as well as her own costs from the same date.

Cur. adv. vult.

Henchy J.:—

This case discloses an unfortunate chapter of accidents. The story commences on the night of Saturday, the 12th December, 1959, when the plaintiff, who is a national teacher, was travelling in a motor car which was being driven by her husband, who is a creamery manager. The motor car collided with another motor car at a crossroads in county Cork. The plaintiff was thrown some twenty feet through the passenger door. She sustained injuries which included a fractured clavicle. In the subsequent High Court action which she brought, claiming damages for the personal injuries she suffered in the accident, the fractured clavicle was not pleaded and therefore not considered by the jury who tried the action. The plaintiff says that because of that, the jury awarded a sum for damages which was less than the

amount lodged in Court with the defence, with unfortunate results as to costs. She maintains that this was caused by the default of her surgeon, Professor Kiely, the first-named defendant, and of her solicitor, Mr. Powell, the second-named defendant: and she now claims damages against them both.

The plaintiff was annointed at the scene of the accident. She received medical attention there from Dr. Kelleher. She was removed in a state of unconsciousness to the Bon Secours Hospital in Cork, where she came under the care of Professor Kiely, who is a surgeon practising in Cork. She came to, after about 36 hours of unconsciousness, on Monday, the 14th December, 1959. Her fractured left clavicle was set in plaster by Professor Kiely on Wednesday, the 16th December, 1959, and she remained in plaster for three weeks.

On Monday, the 14th December, 1959, the plaintiff's husband called to the office of Mr. Powell at 48, Grand Parade, Cork, and instructed him to act as solicitor for himself and his wife in connection with the accident. Mr. McGrath says that on this occasion he described to Mr. Powell his wife's injuries, specifying her head, leg and shoulder injuries. (The plaintiff and her husband uniformly speak of the fracture of her left shoulder when they are obviously referring to the left clavicle or collar-bone.) Mr. Powell denies that he was told of the plaintiff's injuries on this occasion—or indeed on the occasion of any visit—and his written record of the attendance contains no reference to injuries. I consider that the primary purpose of this visit was to instruct Mr. Powell to act on behalf of Mr. McGrath in connection with his liability to prosecution under the Road Traffic Act. If reference was made by Mr. McGrath to his wife's injuries, I believe it was only incidental to his description of the nature of the accident. I do not think that Mr. McGrath intended to give, or Mr. Powell considered he was getting, any instructions which were to be used as the basis for a statement of the plaintiff's injuries.

On the following day, Mr. McGrath called again to Mr. Powell and discussed the question of engaging an engineer to act for him in connection with his prosecution in the District Court under the Road Traffic Act. Mr. Powell says that Mr. McGrath told him that the police were looking for a statement as to the accident from him. Mr. Powell on that day prepared a draft statement for him and sent it to him. Mr. McGrath returned later with the draft statement, which was amended before it was sent to the Guards.

Mr. McGrath says that in the first week in January, 1960, he called to see his wife in hospital and found her in a state of great distress as a result of the removal of the plaster. He says that he called to Mr. Powell and told him about it. Mr. Powell's attendance docket shows that Mr. McGrath called on the 4th January. Mr. Powell says that Mr. McGrath gave him a letter which Mr. McGrath had received about the account due to the hospital authorities and that he said that the nuns in the Bon Secours Hospital were complaining about the account. The attendance docket records that Mr. Powell telegraphed Sister Raphael of the Bon Secours Hospital and arranged that Mr. Grath's hospital bill would be sent to his office. Mr. Powell has no memory of being told on that occasion of the discomfort the plaintiff had suffered on the removal of the plaster.

I think it quite likely that Mr. McGrath did tell Mr. Powell of his wife's suffering as a result of the painful removal of the plaster. But I think it is understandable that Mr. Powell should not particularly note it, because at that stage the primary consideration was still the husband's defence in the prosecution against him in the District Court. I consider that the main, if not the only, purpose of Mr. McGrath's visit was to get Mr. Powell to deal with the hospital authorities in connection with whatever they had said about the nonpayment of the account. If Mr. McGrath complained to Mr. Powell about his wife's sufferings, I do not think that such a complaint was made by him or received by Mr. Powell as an instruction which was to be noted or acted upon for the purpose of the formulation of the plaintiff's claim for damages. I believe that the wife's claim for damages was at this stage being deferred by, and considered subordinate to, the Road Traffic Act prosecution in the District Court.

The plaintiff left hospital on the 6th February, 1960. She says that about ten days after that she first visited Mr. Powell. Her husband was with her. She says that she had her left arm in a sling. She says that she told him of a head injury and that she had...

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4 cases
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    • Ireland
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  • Butler v Regan (as Personal representative of the late Brian Regan, Deceased) and Another
    • Ireland
    • Court of Appeal (Ireland)
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    ...under the heading “ECONOMIC LOSS”. It seemed to the Judge appropriate to apply the test set by Henchy J. in McGrath v. Kiely & Anor [1965] I.R. 497. There, a surgeon who failed to report aspects of injury which resulted in the sum recovered by a litigant in subsequent litigation being reduc......
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    ...v. ErskineIR [1943] I.R. 348. 5 Groom v. CrockerELR [1939] 1 K.B. 194. 6 Heywood v. WellersELR [1976] Q.B. 446. 7 McGrath v. KielyIR [1965] I.R. 497. 8 Cook v. SwinfenWLR [1967] 1 W.L.R. 457. 9 Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.ELR [1964] A.C. 465. 10 Esso Petroleum v. Mardon......
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    • 21 November 1978
    ...this Court on the point at issue. We have been referred, however, to three decisions of the High Court. In McGrath v. Kiely and Another 1965 I.R. 497 the plaintiff client sued his solicitor for negligence and, alternatively, for breach of contract in failing to show due professional care in......

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