Man allegedly disabled by measles vaccine fails to establish case for compensation


The claim of battery was dismissed, with the Judge citing McMahon & Binchy ‘Law of Torts’ under the heading ‘Consent to Medical Procedures’ and Walsh v. Family Planning Services 1 I.R. 496, which found that failure to advise was not an assault, but a possible breach of duty of care.

The burden of proof was therefore on the plaintiff. Citing Geoghegan v. Harris 3 I.R, the Judge found that the plaintiff must show that a proper warning would have resulted in the individual forgoing the treatment. This had not been shown.

The Judge then rejected the claims against the State, finding no evidence to support a claim of liability, or indeed to demonstrate sufficient causation.

The plaintiff appealed to the Court of Appeal, arguing that it was unjust that the defendants had cross-examined the plaintiff’s expert witnesses but then not put forward their own.

Further, the High Court Judge had failed to deal with with evidence before the Court and had erred in relation to the facts.

The Court of Appeal began their discussion by noting the evidential deficit in regard to the basic facts of the case.

It was observed that: “All of the expert witnesses had in common that their function was to give the court their opinions based on facts that had to be established in court by other evidence or by agreement.”

The Court considered the plaintiff’s argument that the defendants were not entitled to a non-suit or direction because they had cross-examined on the basis that their witnesses would give evidence of particular matters, and had put reports before the court.

It was found that this could not be considered going into evidence, and that there was not logical basis for finding that cross-examination denied the defendants the opportunity to apply for a non-suit.

Such a finding would be unjust and unfair, and it was the appropriate and proper thing to do for the defendant’s Counsel to put their case to the plaintiff’s witnesses while cross-examining.

The Court noted it is a matter of great importance that the plaintiff chooses the right experts, and that this had not occurred in the current case.

In relation to the application for a dismissal, the Court observed that: “Where a plaintiff has not made out any form of plausible or arguable case against any of the defendants, it must remain clearly within the discretion of a judge to dismiss the action in its entirety at that stage. See Hetherington v. Ultra Tyre Service Ltd. 2 I.R. 535 andO’Toole v. Heavey 2 I.R. 544.”

Citing O’Donovan v. Southern Health Board and Murphy v. Callanan IESC 30, the Court found that the issue was whether there was a case to meet, which in this case there was not.

In relation to the report of the Steering Group, this was not found to be evidence before the Court, and therefore could not be used as a basis for a finding.

Similarly, there was no evidence in relation to the issue of consent, other than that Dr Healy had not made a written record of the mother’s consent, or of whether he had warned her about the possible serious side effects of the vaccine.

Such evidence provided no basis to conclude that the doctor had not given an appropriate warning.

The Court cited Geoghegan v. Harris 3 I.R. 536 as the leading Irish authority relating to consent.

It was found that: “A plaintiff cannot recover damages on proof only of an absence of informed consent; a causative connection is required to be established on the balance of probabilities, between the breach of duty and the injury suffered.”

Although there were English authorities that adopted a different position, following Chester v. Afshar AC 134, the Court found that Irish courts had not adopted that test.

The High Court’s reference to the absence of any evidence as to what the mother would have done if she had been properly advised was found to be correct as a statement about the state of the evidence.

Concluding, the Court of Appeal summarised that the High Court’s entertaining of an application for the dismissal of the action was not a good ground of appeal. The Judge had followed the jurisprudence in relation to this procedural issue, and had considered the plaintiff’s case at its highest.

There was no obligation on the defendants to give evidence, following their cross-examination of the plaintiff’s expert witness.

In relation to Dr Healy, “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”.

The Court of Appeal observed that the plaintiff had faced a formidable series of legal, practical and procedural problems in bringing the case. Without sufficient evidence to bring a prima facie case, the plaintiff was found not to have demonstrated any basis for overturning the High Court decision.

The appeal was therefore dismissed.

  • by Rachel Killean for Irish Legal News
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