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  • with making all reasonable efforts to find a school place for a child refused enrolment in another recognised school 9 The learned trial judge inferred the intent of s 29 She stated The legislation when taken as a whole is much more consistent with the inference that it is solely the right of the board of management who runs the school on behalf of the patron to make all management decisions including a decision as to the school s capacity in terms of the numbers of children which it can educate at any given time 10 The learned High Court Judge considered ss 9 14 and 15 of the Act 11 The High Court concluded For the aforementioned reasons I reject the appeals committee s submission that s 29 provides a broad and flexible remedy which allows the appeals committee substitute its own judgment on a management issue such as the capacity of a school for that of the Board itself I believe it is far more likely that what the legislature intended to provide in s 29 of the Act was something akin to a professional regulator who would operate an appeals procedure that was transparent and accessible to parents of children who were refused enrolment where they might complain about the lawfulness of that decision In this respect the Court takes some comfort from the use of the word complaint in s 29 6 of the Act Accordingly I conclude that the substantive power conferred by s 29 is limited to providing a student who is refused enrolment with the type of review referred to above In purporting to substitute its opinion for that of the board of management as to the school s capacity I conclude that the committee acted ultra vires the substantive powers conferred upon it by s 29 of the Act of 1998 Grounds of Appeal 12 The appeals committee filed a notice of appeal dated the 9th day of June 2009 The grounds relevant to this preliminary issue are as follows i That the High Court erred in law and in fact in holding that the appeals committee acted ultra vires the powers conferred on it by section 29 of the Education Act 1998 ii That the High Court erred in law and in fact in holding that the substantive power conferred by section 29 of the Education Act 1998 did not confer jurisdiction on the appeals committee to re hear the subject of a section 29 appeal iii That the High Court erred in law and in fact in holding that the substantive power conferred by section 29 of the Education Act 1998 did not confer jurisdiction on the appeals committee to substitute on appeal from a decision of the board of management its decision for that originally made by the board of management iv That the High Court erred in law and in fact in holding that the power of the appeals committee was confined to a right to review the lawfulness and or reasonableness of the board of management s decision to refuse enrolment and or that the appeals committee s function was akin to that of a professional regulator v That the High Court erred in law in applying an informed interpretation rule to the interpretation of section 29 of the Education Act 1998 in circumstances where the literal interpretation of the said provision did not lead to an absurd or ambiguous result or one plainly contrary to the legislative intent vi That the High Court erred in law and in fact in holding that the appeals committee in reaching its decision had had regard to irrelevant considerations and or not had regard to relevant considerations In particular in circumstances where these issues were being examined on the assumption that the appeals committee had the jurisdiction under section 29 contended for by the board of management herein the High Court erred in law and in fact in treating the appeals committee as being confined to matters regarded as being material by the board of management Section 29 13 The Court has been requested to interpret s 29 of the Act of 1998 which provides 29 1 Where a board or a person acting on behalf of the board a permanently excludes a student from a school or b suspends a student from attendance at a school for a period to be prescribed for the purpose of this paragraph or c refuses to enroll a student in a school or d makes a decision of a class which the Minister following consultation with patrons national associations of parents recognised school management organisations recognised trade unions and staff associations representing teachers may from time to time determine may be appealed in accordance with this section the parent of the student or in the case of a student who has reached the age of 18 years the student may within a reasonable time from the date that the parent or student was informed of the decision and following the conclusion of any appeal procedures provided by the school or the patron in accordance with section 28 appeal that decision to the Secretary General of the Department of Education and Science and that appeal shall be heard by a committee appointed under subsection 2 2 For the purposes of the hearing and determination of an appeal under this section the Minister shall appoint one or more than one committee in this section referred to as an appeals committee each of which shall include in its membership an Inspector and such other persons as the Minister considers appropriate 3 Where a committee is appointed under subsection 2 the Minister shall appoint one of its number to be the chairperson of that committee and who in the case of an equal division of votes shall have a second or casting vote 4 In hearing and determining an appeal under this section an appeals committee shall act in accordance with such procedures as may be determined

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  • appellant was at variance with the legal position as laid down by the Supreme Court in an action in which he was plaintiff and accordingly that to allow the submission would be to permit a collateral attack on the judgment of the Supreme Court The learned trial judge dealt with a submission that the operation of the scheme in relation to compensation on an extra statutory basis was unconstitutional The appellant claimed to be entitled to the live market value of an animal destroyed rather than an ex gratia sum fixed by the Minister The learned trial judge considered and agreed with the approach of Murphy J in Grennan v Minister for Agriculture Food and Forestry and she held that the scheme was an entirely reasonable method of reconciling the interest of a herd owner with a diseased or suspected diseased animal and the requirement of the common good in preventing the further spread of disease and that the scheme accorded with the Constitution In relation to the submission that the scheme was contrary to the European Convention on Human Rights and Fundamental Freedoms the learned trial judge held that the Convention was not part of domestic law of the State at the relevant time and that an action for damages did not lie for an alleged breach of rights under the same between 1993 and 1996 The learned trial judge characterised the appellant s position as follows The Minister s officials acted on the authority of the Act of 1966 and the 1989 Order and the question of compensating the plaintiff for a slaughtered animal never arose because of the conduct of the plaintiff He refused the compensation which was on offer if he slaughtered the contentious animal She went on to deal further with the issue as follows For the purpose of considering the defendant s argument I will assume that there has been a failure to implement Article 3 2 into national law and that the first and second criteria for State liability laid down in Francovich Dillenkofer are complied with Looked at in the abstract the third condition would be fulfilled if as a result of a failure to transpose into national law the obligation to ensure that a herd owner is appropriately compensated whatever on its proper construction that expression entails for the slaughter of an animal under a Disease Eradication Plan mandated by Directive 78 52 EEC a herd owner received no compensation or less than appropriate compensation for a slaughtered animal thereby incurring loss That is not what happened in the plaintiff s case between 1993 and 1996 What happened was that the plaintiff s herd was lawfully restricted under Irish law Shortly thereafter when the contentious animal was declared to be a reactor despite being persistently urged to do so the plaintiff refused to have the animal slaughtered and to initiate the process which would have led to de restriction The plaintiff claims damages for the losses he alleges flowed from the restriction of his herd between 1993 and 1996 That situation was brought about by the plaintiff s own conduct It is no answer to the defendants contention that the plaintiff is not entitled to recover because he was the author of his own misfortunate that but for the non implementation of Article 3 2 the plaintiff s conduct would have been different The extent of reparation to which an injured party may be entitled for any breach of Article 3 2 in this jurisdiction is governed by Irish law and as a matter of community law as laid down in Dillenkofer an Irish court is entitled to enquire whether the plaintiff had taken reasonable care to avoid loss or damage or to limit its extent The losses which the plaintiff alleges he incurred between 1993 and 1996 could have been wholly avoided if the plaintiff had complied with the provisions of the 1989 Order in relation to herd restriction herd testing and the slaughter of the reactors to which he professes having no objection Accordingly the plaintiff has not established that there is a causal link between the losses in respect of which he claims damages and the State s obligation to implement Article 3 2 Further the appellant failed to produce any evidence that there would be a difference between the carcass value and the reactor grant on the one hand and appropriate compensation within the meaning of Article 3 2 on the other hand The final issue to arise on the pleadings was the claim relating to the passing of private and confidential sensitive constitutional communications This concerned a letter written by the appellant on the 8th March 1994 to the President of Ireland the Ceann Comhairle of the Dáil the Taoiseach and the Chief Justice in which he made specific complaints against six former and serving judges of the Superior Courts alleging improper exercise of their judicial functions That letter was discovered by the defendants in the present proceedings The learned trial judge held that it was properly discovered and that no right to privacy could attach to the appellant in relation to the same Proceedings before the Supreme Court In opening the proceedings the appellant withdrew the allegation of bias against Laffoy J Accordingly the several matters listed under that heading at 1 in the grounds of appeal were not pursued Nonetheless it was appropriate for the purposes of the appeal to consider the transcript of the proceedings in the High Court Having considered the transcript I am satisfied that the allegation of bias could not be supported and that it was appropriate that the appellant did not persist with this ground The remaining grounds 2 and 3 cited above are couched in the most general terms However the appellant s written submission set out specific complaints as to the manner in which the learned trial judge conducted the trial and dealt with various applications made by the appellant The respondents in their written submissions dealt with each complaint without objection as to whether or not it was within the grounds of appeal In dealing with each individual complaint this court has had the benefit of the learned trial judge s careful and detailed judgment and a transcript of the ten days of hearing In what can only be regarded as a significant concession to the appellant the learned trial judge dealt with matters which were clearly res judicata Further a number of the matters raised could be considered as merely restating the grounds of appeal on the issue of bias notwithstanding this it is proposed to deal with each of these grounds in the light of the appellant s written submissions upon which he relied before this court I propose to deal with the same in fairness to the learned trial judge against whom in the notice of appeal at 1 serious allegations are made although the same have now been withdrawn I propose to deal with each of the matters raised in the appellant s written submissions in relation to grounds 2 and 3 in the notice of appeal in the sequence in which they are therein set out 1 The learned trial judge failed to deal with Article 15 of the Constitution and the decision of the Supreme Court in O Neill v Minister for Agriculture and Food 1997 2 I L R M 435 The appellant argued that an administrative scheme could not validly be used to implement EC regulations and that implementation could only be achieved by laws passed by the Oireachtas The appellant s claim was for damages The learned trial judge for the purposes of the judgment assumed that there had been a failure to implement the relevant article into national law and I have quoted above the passage from her judgment in which she dealt with the appellant s submission on that basis The appellant the learned trial judge found as a fact failed to comply with the provisions of the 1989 Order and for that reason no entitlement to compensation arose He failed to establish a causal link between the losses in respect of which he claimed and the State s obligation to implement Article 3 2 of the Directive I am satisfied that the approach adopted by the learned trial judge gave full effect to the provisions of Article 15 of the Constitution and the decision of this court in O Neill v Minister for Agriculture and Food 2 The learned trial judge refused to heed consider or entertain applications made by the appellant The appellant relies on six instances in which applications made by him were not acceded to as follows i The appellant asked the learned trial judge to strike down Article 13 of the 1989 Order The learned trial judge pointed out that no such relief had been claimed the only claim being for damages The learned trial judge refused to permit an amendment of the pleadings to enable the appellant to claim declaratory relief on the basis that it was at that stage of the proceedings too late to permit an amendment I am satisfied that the discretion of the learned trial judge was properly exercised in this case and that to permit the amendment at that stage of the proceedings would have been oppressive of the respondents The appellant has not pointed to any error in principle in the manner in which the learned trial judge exercised her discretion In these circumstances this court should not interfere ii On day 8 of the hearing Mr Fitzgerald a principal officer in the Department of Arts Sport and Tourism was being cross examined by the appellant The appellant sought to examine Mr Fitzgerald about a complaint which the appellant had made to the Ombudsman Counsel for the respondents objected to the line of questioning on the ground that it was irrelevant The learned trial judge refused to allow the line of questioning Later during the cross examination of that witness the appellant again raised the possibility of declaratory relief the learned trial judge made it clear that she would not on the pleadings grant such relief Finally the appellant complains that in her judgment the learned trial judge said while the plaintiff has not sought any relief by way of declaration and that this was an attempt by her to conceal the appellant s applications Having carefully considered the transcript I am satisfied that the question sought to be asked of Mr Fitzgerald was indeed irrelevant to the issues before the court and in any event was not a proper question for that witness The learned trial judge on day 1 of the hearing had made it quite clear that she would not permit an amendment of the pleadings to claim declaratory relief The statement contained in the judgment complained of is factually correct the appellant s pleadings did not claim declaratory relief iii Admission of documents During the course of the hearing the respondents made additional discovery The appellant applied to have the newly discovered documents admitted into evidence and wished to put them to Mr Fitzgerald in cross examination Counsel for the defendants agreed to the admission of the documents The learned trial judge carefully considered each of the documents and ascertained the purpose for which the appellant required to have the same admitted in evidence The learned trial judge admitted the documents and permitted two of the respondents witnesses Mr O Reilly and Mr Patton to be recalled so that counsel for the respondents could put the documents to them and the witnesses then being made available for cross examination on the documents by the appellant The learned trial judge stipulated that the cross examination should be only in relation to the documents Having carefully considered the transcript I can find no objection to the manner in which the learned trial judge proceeded The appellant refers under this heading to the transcript of day 10 at pages 55 56 and 101 there is one intervention by the learned trial judge in those pages of the transcript at page 101 The appellant stated then Mr Sanfey refers to the fact that there was a failure to plead matters relating to declarations and that any of the statutory instruments are ultra vires If your Lordship goes to paragraph 2 of the Endorsement of Claim you will see that the Bovine TB Eradication Scheme is still there that it is ultra vires the Diseases of Animals Act The learned trial judge responded That is an assertion The learned trial judge correctly described the appellant s pleading as an assertion It was not evidence She was endeavouring to assist the appellant I can see nothing wrong in the intervention iv Failure to strike out the defence for failure to make proper discovery During the course of the trial it emerged that the defendants discovery had been incomplete Additional discovery was made on the 8th day of trial The appellant contends that he applied to have the defence struck out for failure to make proper discovery Having carefully perused the transcript at the references furnished by the appellant no such application is to be found In any event such application is a matter for the learned trial judge to deal with in her discretion and I would not interfere with the exercise of that discretion in this case v The learned trial judge attacked the appellant s character and integrity The appellant refers to three passages in the transcript Firstly on day 5 of the hearing the appellant was cross examining the defendants witness Mr O Reilly The learned trial judge intervened as follows You are going around in circles Mr Rooney and you are being deliberately obstructive I think or you are deliberately obfuscating The answer Mr O Reilly gave to your question as to why you did not see the whole file was he told us what the general policy is he was talking about general policy he was not specifically relating to your file The learned trial judge was directing the cross examination to the evidence given by the witness and she was fully entitled so to do in the context of the appellant s cross examination of Mr O Reilly which spread across days 5 6 and 7 of the hearing From the transcript it is difficult to ascertain the relevance of a great deal of the cross examination I am satisfied from a perusal of the transcript that the learned trial judge s intervention was fully justified Certainly it did not inhibit the appellant in pursuing his cross examination with considerable gusto and at great length Considerably greater latitude was extended to the appellant than would be extended to counsel in the like circumstances The second objection relates to transcript of day 7 at pages 136 and 137 The appellant once again raised the issue of an amendment to his pleadings to include a prayer for declaratory relief The learned trial judge remarked that the appellant was wasting time and asked him to get on with his cross examination of Mr O Reilly The learned trial judge then refused an application by the appellant to deal with the Sheehy Report which concerned EU funding of the Bovine TB Eradication Scheme on the basis that it was not relevant to the period with which the appellant s claim was concerned The appellant said he would not accept the learned trial judge s ruling Having carefully considered the transcript I am satisfied that the learned trial judge both in relation to the amendment of pleadings and to the introduction of the Sheehy Report was correct I do not see that the learned judge s comments in relation to these applications could in any way be considered as reflecting on the appellant s character and integrity The third matter raised occurred on Day 9 when Mr O Reilly was recalled as a witness The learned trial judge had already made clear to the appellant the matters which could be canvassed with him on cross examination The appellant sought to go outside those matters When he sought to do so the learned trial judge said You are not getting another bite at that particular cherry Mr Rooney These witnesses were recalled because of deficiencies in the Department s discovery You were asked to highlight the documentation which was material and should have been discovered I have allowed the witnesses to be recalled and I have allowed you to cross examine them in relation to the discovery issue and I made it clear that we were going to stay within the parameters of this you are straying outside it and I am not going to allow it Again I do not see how this intervention by the learned trial judge could in any way constitute an attack upon the character and integrity of the appellant vi In her judgment the learned trial judge omitted reference to evidence damning the respondents defence to the action In relation to this complaint it is sufficient to say that having considered the transcript in its entirety I am satisfied that the learned trial judge in her judgment as she was entitled to do recited the portions of the evidence relevant to the issues arising in the action and which she had to determine There is no requirement and indeed it would be inappropriate in the course of her judgment to recite in full the evidence whether relevant or irrelevant and whether accepted or not It is sufficient if the learned trial judge recites that evidence which is material to the findings of fact and law which she makes on the issues which she has to decide The learned trial judge in an exemplary manner in her lengthy and detailed judgment did this 3 The learned trial judge failed to take into account the appellant s written submissions It is quite clear from a perusal of the transcript and the

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  • and then became aware of the results of the abnormal smear tests between 1986 and 1993 and the lack of activity by the third and fourth named Defendants These proceedings ensued The Plaintiff s essential complaint was that she was subjected to a radical procedure which was not necessary The first named Defendant was the person who carried out this procedure and therefore the prime focus of the case Indeed it seems that the case against the first named Defendant tended to overshadow the case made against the third and fourth named Defendants The case made against the first named Defendant was that in late 1995 and 1996 notwithstanding the difficult situation with which the first named Defendant was confronted there were in truth three options available These were identified in the report of Dr Murphy an expert called on behalf of the Plaintiff In the evidence these were referred to as Options A B and C Option A and to a lesser extent Option B were considered to be conservative options whereas Option C was clearly a radical procedure They were described as follows A Do a cervical cone or LLETZ with an endometrial biopsy B Do a simple hysterectomy with a vaginal cuff C Do a radical hysterectomy A LLETZ is a Large Loop Excision of the Transformation Zone of the cervix There was some difference of opinion between Dr Murphy and Professor Bonnar also called on behalf of the Plaintiff as to which step was appropriate Dr Murphy initially taking the view that Option B was appropriate whereas Professor Bonnar considered that Option A was appropriate It should be emphasised that this evidence was directed to the position which presented itself to the first named Defendant in 1995 and 1996 For present purposes it also appears to have been accepted that Option A was the appropriate step at any earlier stage i e between 1986 and 1993 Further and strikingly evidence was given and not contested that this conservative procedure would in all probability have addressed the Plaintiff s difficulties at those times Notwithstanding the fact that the Wertheim Meigs procedure was one appropriate to a diagnosis of cancer and that cancer was not found the case against the first named Defendant was obviously difficult and both Professor Bonnar and Dr Murphy expressed some sympathy for the position in which the first named Defendant found himself It was also apparent that although the case against all Defendants involved an allegation of liability for an unnecessary Wertheim Meigs hysterectomy carried out in 1996 the case against the first named Defendant was quite different from that which was made against the third and fourth named Defendants In the case of the first Defendant there was no doubt that he was responsible for and therefore had caused the radical and in the event unnecessary hysterectomy the only question was whether he was negligent in so doing On the other hand there was little doubt at least on the prima facie basis on which it was being addressed at this point that the third and fourth named Defendants had been negligent the question in their case was whether that negligence had caused the hysterectomy There were further complications In the simplest form of multi defendant cases the issue may be whether one or more of the defendants is liable and if more than one is then in what proportion A further scenario may be where liability is truly exclusive i e where a finding against one defendant may by definition exculpate the other This case involved elements of both scenarios and the further significant complication that the case against each defendant was to some extent contingent of the view the court took of the outcome of the case against the other defendants For me the most striking features of this case are the acknowledgement that the third and fourth Defendants were negligent in failing to act on the abnormal smear tests between 1986 and 1993 coupled with the fact that there was very clear and strong evidence that had the appropriate course been taken in response to any of the tests during that period then in all probability the conservative treatment which would have been afforded to the Plaintiff would have resolved her condition without the need for a hysterectomy still less the radical Wertheim Meigs hysterectomy which was in fact carried out In the light of these matters alone it seems to me that sufficient had been established to require that the third and fourth named Defendants should go into evidence The case against the third and fourth named Defendants undoubtedly becomes more clear when the outcome of the case against the first named Defendant is known and when it is possible then to focus solely on the case against the third and fourth named Defendants with that issue a fixed rather than variable element in the equation In this regard the case against the Third and Fourth named Defendants was undoubtedly distorted by the focus on the case of the first named Defendant The more the Plaintiff pressed the case that the first named Defendant had been excessive in carrying out the Wertheim Meigs hysterectomy the more difficult it became to maintain the separate hypothesis that the Plaintiff s treatment was caused by the negligence of the third and fourth named Defendants since it allowed those Defendants to maintain that the Plaintiff s difficulties were caused by the hysterectomy in 1996 and not by anything which had occurred earlier There can be little doubt that if the first named Defendant was negligent in carrying out the Wertheim Meigs hysterectomy then that itself would have been the primary cause of the Plaintiff s condition and the third and fourth named Defendants would then have been exculpated from any responsibility for that operation and its sequelae although not perhaps from responsibility for the failure to treat the Plaintiff between 1987 and 1993 However the significant aspect of that formulation is its contingent nature That was only one of the possible outcomes of this case It had not occurred by the time the third and fourth named Defendants were dismissed from the case In the event it did not transpire at all However it is confusing and misleading to approach the case against the third and fourth named Defendants through the allegations made against the first named Defendant The case against those Defendants can be best understood by considering a number of different possibilities as of the time when each test result became available and was not acted upon It is clear that on the acknowledged state of the evidence those Defendants would be liable for all the foreseeable consequences of the negligence which it was conceded at least for the purposes of the application had been established against the third and fourth named Defendants in failing to respond to the abnormal smear test results What those consequences were would depend on a number of factors which were not within the third and fourth named Defendants control If for example in 1996 the first named Defendant had taken the conservative option which on the Plaintiff s case the first named Defendant ought to have adopted then the third and fourth named Defendants liability would be limited to the claim if any for additional suffering through the continued experience of the condition and symptoms for longer than was necessary On the other hand if the Plaintiff had contracted cervical cancer and thankfully she did not then there would again at a minimum have been a strong case that the third and fourth named Defendants were liable for the pain suffering trauma and loss of life expectancy etc involved in this and also significantly for any necessary treatment for her condition which on the evidence in this case it appears would have included a Wertheim Meigs hysterectomy In a different scenario if the first named Defendant had been negligent in carrying out the Wertheim Meigs hysterectomy then that would have been a novus actus interveniens which would have largely if not completely broken any causal link between the Plaintiff s condition and the third and fourth named Defendants negligence Another possibility was that if the procedure adopted was reasonable and appropriate as it would have undoubtedly have been if there had been a positive diagnosis of cancer vindicated by biopsy but also if the Plaintiff s symptoms were such as to indicate to a reasonable surgeon the necessity for such a radical procedure and the evidence was that such an invasive procedure would not have been necessary if steps had been taken on the test results up to 1994 then at least prima facie the third and fourth named Defendants would have been responsible in law for the damage comprising the operation treatment and its sequelae It seems to me that at a very minimum if the Court determined that the Wertheim Meigs hysterectomy was not an unreasonable response to the Plaintiff s symptoms even if it transpired that the Plaintiff did not have cancer then there was a clear case that the third and fourth Defendants were liable for that procedure and its sequelae unless it could be said that it was not reasonably foreseeable that the Plaintiff s condition would develop to such a point where such a procedure was a reasonable response to the Plaintiff s condition or that the Plaintiff s condition had always necessitated a Wertheim Meigs hysterectomy neither of which had been suggested The complications involved in these contingencies were in themselves a good reason not to accede to an application for a non suit before all the evidence was given and all possible contingencies explored Although the claim against the first named Defendant seemed to dominate the case it seems to me clear the Plaintiff pleaded and made the separate distinct and coherent case against the third and fourth named Defendants that if the first named Defendant was not negligent then the third and fourth Defendants were liable Indeed I did not understand the Respondents on this Appeal to contend otherwise or to challenge the theory of causation that the Plaintiff asserted against those Defendants Instead it was argued that on the evidence this case was not made out or rather more subtly that the trial judge had been entitled to consider that the case had not been made out on the evidence It is accordingly necessary to review the evidence relied upon by the parties As I have already observed it is clear that the case against the first named Defendant caused difficulties for the case against the third and fourth named Defendants Thus on Day 1 at page 19 at an early stage of the Plaintiff s opening the trial judge identified the gravamen of the complaint in relation to the first and second named Defendants but asked what is the relevance of your complaint in relation to the third and fourth named Defendant vis a vis the carrying out of the hysterectomy That received a reply which in retrospect seems very clear If the plaintiff had been properly treated first of all in relation to the 1986 and 1987 smear tests both of which were abnormal she could have had conservative treatment at that stage and that may well have eliminated her problem However the trial judge again returned to this issue at page 77 of the same transcript At this stage I am finding it very hard to see why either of the third or fourth named defendants are sued in this action because there seems to be a lack of nexus between the actions of the first and second named defendants and these particular defendants It may well be and obviously I haven t heard the evidence yet but taking the case as being correct that you are making mainly that the plaintiff never had the findings of the initial test communicated to her where does that take your case The decision to operate was taken by the first named Defendant based upon what he received from the second named Defendant also based on the history of the plaintiff The plaintiff may have been in my opinion of the view that there were no abnormalities but you are not as I understand it suggesting that the earlier cystology sic reports were inaccurate You are accepting their findings This it should be said was in response to a portion of the Plaintiff s opening which again made the case that if the proper procedures had been followed in response to the abnormal cytology reports then the Plaintiff would have been cured We say that if the 86 Cytology test for example had been properly dealt with it would be that the fourth defendant ought to have referred the plaintiff to the first defendant s colposcopy department with the fourth defendant and after colposcopy and biopsy then one lazer treatment should have cured the plaintiff my emphasis This may if anything have been a slight overstatement of the case being made by the Plaintiff against the third and fourth named Defendants but certainly cannot be faulted for lack of clarity Unfortunately however the seeds of confusion had already been sown and when the application for a non suit was made on Day 7 ruled upon on Day 8 and successfully renewed on Day 9 it is apparent that the relative positions of the Plaintiff and of the trial judge on the analysis of the case had not moved on to any significant degree from those exchanges from Day 1 It is often the case when a non suit application is made that the evidence in support of the plaintiff s claim is relatively weak and the effective contest in whether the plaintiff raises just enough evidence to require the defendant to go into evidence and give the plaintiff the opportunity of bolstering his case from the defendant s evidence In this case however there was a large and apparently impressive volume of evidence which seemed to support the case being made against the third and fourth named Defendants The Plaintiff called evidence from Professor John Bonnar a distinguished former Consultant Obstetrician and Gynaecologist Dr John Murphy a Consultant Obstetrician and Gynaecologist with a particular interest in and experience of colposcopy and Dr Colin Bradley a Professor of General Practice from University College Cork It is not necessary to review their evidence in detail it was not seriously in contest that in their reports they presented to the Court and in their evidence in chief they strongly supported the Plaintiff s case against the third and fourth named Defendants They all were of the opinion that the appropriate treatment between 1986 and 1993 would have been colposcopy and biopsy followed by diagnosis and then treatment by diathermia or laser Even more significantly these witnesses were all willing to state that in all probability this treatment would have eliminated the Plaintiff s problems Thus on Day 3 page 22 Professor Bonnar said Because cytology is not a diagnosis we must have a tissue diagnosis and a tissue diagnosis would have revealed CIN changes and these would have been treated In fact the biopsy would have been done and the treatment would have been done at the same time In other words the colposcopy will tell us where the suspicious area is and that would be treated by either diathermia or laser When asked Q 84 what would have been the outcome of that treatment his answer was quite unequivocal Well the probability is that it would have eliminated the problem but you wouldn t assume that you would follow the patient with further cytology and if you had no abnormal smears you would know that the process had been removed It is a telling illustration of the complexity of multi party litigation and the fluidity of the position of parties that the most effective evidence on causation against the third and fourth named Defendants was elicited from Professor Bonnar by the cross examination conducted on behalf of the first named Defendant Thus on Day 4 counsel for the first named Defendant put Dr Murphy s report to Professor Bonnar who agreed with the conclusions set out therein including the conclusion in respect of 1986 that The clinic in Galway should have alerted her family doctor and Julia Schuit in turn Her doctor in turn should have referred her to the colposcopy clinic There she would have been colposcoped and a biopsy taken In the likely event that CIN was present she would have had a conservative LLETZ or lazer procedure which would have addressed the situation and the most that Julia Schuit would have expected at ten plus later that she would be the subject of regular cervical follow up of screening in the anticipation that the smear would have been normal This was summarised by counsel at question 220 Q If action had been taken then none of us would have been here today isn t that right A That s correct yes Counsel returned to the theme at question 315 as follows Q 315 Am I right in thinking Professor Bonnar that if either the hospital had acted on foot of the smear reports which were obtained directly from the hospital or if Dr Winters had acted on the abnormal reports which were apparently received by him this lady would never had progressed to the stage where she would have need a hysterectomy of any sort A That was my view yes Q 316 She wouldn t of had to have the simple or the radical or the Wertheim Meigs A Yes the doctor would not have been put in the position he was Dr Murphy s evidence in chief was similarly forthright On Day 5 question 17 he said that if the Plaintiff had been referred for further investigation and possible treatment then even in 1986 she would have been referred for colposcopy

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  • and significance of the evidence alleged to be missing Subsequent cases have enlarged upon this obligation In Mitchell 2000 2 ILRM 396 High Court Geoghegan J an incident had occurred in the Temple Bar area of Dublin but the gardaí had not sought to obtain either the footage from the garda video recording system in the area or CCTV footage from a nearby private restaurant Geoghegan J considered that it was going too far to say that the prosecution must be prohibited where such steps were not taken because in the particular case the gardaí were entitled to accept that there was nothing useful on the CCTV camera in the restaurant and it could not be said that there was an obligation to seek and retain CCTV footage every time an incident occurred in a street Scully 2003 IEHC 92 High Court and 2005 1 IR 242 Supreme Court was a further important case on the significance of CCTV footage There the proprietor of a filling station had been assaulted as he locked up his premises for the night There was a CCTV camera in operation The gardaí viewed the tapes but concluded that the camera did not cover the area of the alleged assault was of poor quality and was of no evidential value In the High Court Kearns J as he then was rejected the application for prohibition He said This judgment Mitchell and the recent decision of the Supreme Court in McKeown reinforces my own view that some sort of commonsense parameters of reasonable practicality must govern any determination of the scope of the duty on the Gardaí when seeking out or preserving evidence This must of necessity imply that some margin of appreciation be extended to Gardaí when investigating crime to determine what they may reasonably consider to have some possible relevance in establishing guilt or innocence What is the alternative Is it for the accused person or his legal advisers to dictate the parameters Alternatively must the Gardaí go on seeking out and preserving any and every possible piece of evidence which might by the remotest chance admit of being relevant in some fashion in a subsequent trial I think not To set the bar too high for Gardaí in seeking out and or preserving evidence is more likely in my opinion to frustrate the administration of justice and due process than to uphold it On appeal the Supreme Court upheld the decision essentially on the basis that there had been undue delay in making the application something which was particularly relevant in this type of case As Mr Justice Hardiman in the Supreme Court pointed out Delay is significant not so much for its bare length in this case for instance it was considerably less than the unexplained delay in commencing the prosecution but for the indication that it provides that the case was based on a remote fanciful or theoretical possibility rather than a real desire to obtain evidence believed to be potentially exculpatory To put this another way all the Applicant has done here is merely to invoke the possibility that exculpatory evidence at one time existed and that there was something visible on the video despite the new evidence He must do more than that In the words of Finlay CJ in Z v Director of Public Prosecutions 1994 2 IR 476 at page 507 he must establish a real risk of an unfair trial The importance of the first adjective in this phrase is that it excludes a risk which is merely remote fanciful or theoretical The need to meet this requirement involves much greater engagement with the actual state of the evidence than is apparent here The applicant s case did not at all engage with the facts provided in the initial statements in April 2003 but simply considered them as irrelevant This omission represents a flight in to unreality Hardiman J upheld the decision of the High Court observing however that The prosecution are fortunate that in this case the view which the gardaí formed is independently corroborated and is unchallenged It is true that Hardiman J did suggest that as a general rule videos should be preserved It seems both prudent and fair to preserve a video tape the expense or inconvenience of doing so is minimal and the facts of another case might well lead to a different result following a decision to dispose of a video tape However this sensible advice does not assist the resolution of the present case where the footage was beyond retrieval and the case itself had been commenced before the judgment in Scully was delivered In Fagan v Judges of the Circuit Criminal Court DPP 2006 IEHC 151 Dunne J in the High Court rejected another challenge based on absent CCTV evidence In that case the applicant had been identified from CCTV footage The gardaí had sought a copy of the footage but unfortunately the disk which was believed to contain the copy footage turned out to be blank When a further effort was made to obtain a copy it was discovered that the hard disk had been overwritten It should be said that from the decided cases it appears that the fact that such hard disks are routinely overwritten is an established feature of the technology of CCTV cameras at least during this period There was however a statement by the accused admitting his involvement Once again prohibition was refused on the grounds of delay but Dunne J also considered the substance of the applicant s case She rejected the applicant s claim concluding This is not a case in which it has been suggested that there is a real issue as to the admissibility of the memorandum of interview furnished by the applicant to the gardaí It might well be that a memorandum of interview may be found to be inadmissible However this is not like the situation in the Braddish case where it was clear that the confession in that case was hotly disputed It is in that context that it appears to me that Ms McDonagh is correct in her submission that the applicant herein has failed to engage with the evidence in this case Looking at the overall situation herein it seems to me that this is a case in which leave has been sought to prohibit the trial by virtue of the happenstance that the CCTV footage is missing rather than an attempt to show that the applicant has been deprived of a fair trial by the absence of critical missing evidence I feel that my view in this regard is supported by the fact that such an application was brought only on the eve of trial and accordingly it seems to me to have the characteristics of an application made for the purpose of tripping up the investigators in discovery of the evidence as described by Hardiman J in the Scully case The pattern emerging from the jurisprudence can also be illustrated by two cases in which applicants succeeded In Ludlow v The Director of Public Prosecutions O Shea 2009 1 IR 640 the applicant was accused of dangerous driving causing death A major part of the case against the applicant was the allegation that the tyres of the vehicle which he was driving were excessively worn However the vehicle was released by the gardaí to the applicant s employer who disposed of the tyres before they could be inspected on behalf of the applicant The applicant s claim to prohibit the trial succeeded both in the High Court and on appeal McHugh v Director of Public Prosecutions 2009 IESC 15 concerned a charge of stealing from a Lidl store The accused had been identified only after the gardaí and the staff reviewed CCTV footage That footage however which was central to the case was no longer available Nevertheless the gardaí proposed to give identification evidence by reference to the now non existent CCTV footage and by proffering some still photographs which had been preserved from the CCTV footage The Court reviewed the photographs and concluded that they did not permit any conclusion to be reached as to whether or not the accused had engaged in the activity alleged Accordingly the Supreme Court was prepared to uphold the High Court s decision to prohibit the trial In this case as in the Ludlow case there is an engagement with the facts of the case and a close and searching analysis of the manner in which the absent evidence might affect the trial Even then it is to be noted that in the subsequent case of CD v DPP 2009 IESC 70 Fennelly J observed of McHugh that at this point on reflection I wonder whether even that case could not properly have been left of the basis that it would be unfair to admit evidence of identification from unavailable CCTV footage which would be a matter for the trial judge In the CD case by contrast the Supreme Court refused to prohibit a trial of an incident which was alleged to have occurred in a matter of seconds in a public place and where the Applicant complained that although the gardaí had retained certain video evidence they had not obtained footage from one camera which it was alleged supplied a better angle At paragraph 24 Fennelly J said As has been emphasised many times this type of application must be considered in the context of all the evidence likely to be put forward at the trial The key question whether there is a real risk of an unfair trial cannot be viewed in vacuo evidence Evidence is never perfect Neither the prosecution nor the defence can be assured that all conceivable evidence will be available Having reviewed the jurisprudence Fennelly J concluded that the relief sought was exceptional It follows that the relief of prohibition of a pending trial can only arise exceptionally see DC v DPP 2006 ILRM 348 per Denham J McFarlane v DPP 2008 IESC 7 per Kearns J these were admittedly delay cases However I think the same principle must apply I stated in my dissenting judgment in Dunne v Director of Public Prosecutions 2002 3 IR 305 that it would require something exceptional to persuade a court to intervene and prevent a criminal trial from taking place In my view having considered the decided cases the position has now been reached where it can be said that other than perhaps the very straight forward type of Braddish case it would now require something exceptional to persuade a court to prohibit a trial This in my view is in accordance with principle The point was made in McFarlane v DPP Special Criminal Court 2007 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial to assess the case developed at the trial At paragraph 34 of his judgment Hardiman J with Murray CJ Geoghegan and Fennelly JJ agreed stated that the court of trial will be able to assess whether there is indeed a prima facie case at the appropriate stage More than that it will be able to assess on the evidence as it actually develops whether there is any unfairness to the applicant incapable of remedy by the trial court for which the prosecution is responsible Its powers in this regard are wholly unaffected by the result of the present applicant This in my view is an important observation The constitutional right the infringement of which is alleged to ground an applicant s entitlement to prohibit a trial is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution The manner in which the Constitution contemplates that a fair trial is normally guaranteed is through the trial and if necessary appeal processes of the Courts established under the Constitution The primary onus of ensuring that that right is vindicated lies on the court of trial which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34 It is in my view therefore entirely consistent with the constitutional order to observe that it will only be in exceptional cases that Superior Courts should intervene and prohibit a trial particularly on the basis that evidence is sought to be adduced in the case of video stills or is not available in the case of CCTV evidence itself The modern law is I consider set out and synthesised in a judgment of Fennelly J in Savage v Director of Public Prosecutions 2009 1 IR 185 in a passage with which Hardiman J expressed agreement a It is the duty of the prosecution authorities in particular An Garda Síochána to preserve and maintain all evidence which comes into their possession having a bearing or potential bearing on the issue of guilt or innocence of the accused This duty flows from the unique and investigative role of the police force see Braddish v DPP 2001 3 IR 127 The extent to which that duty extends to seeking out evidential material not in the possession of the gardaí does not arise in the present case but see Dunne v Director of Public Prosecutions 2002 2 IR 305 b The missing evidence in question must be such as to give rise to a real possibility that in its absence the accused will be unable to advance a point material to his defence This is like the garda obligation to retain and preserve evidence to be interpreted in a practical and realistic way and no remote theoretical or fanciful possibility will lead to the prohibition of a trial See Dunne v Director of Public Prosecutions 2002 2 IR 305 at page 323 c The fact that the prosecution intends to rely on evidence independent of the missing evidence at issue in order to establish the guilt of the accused does not preclude the making of an order of prohibition In Dunne v Director of Public Prosecutions 2002 2 IR 305 the prosecution intended to rely on a confession This did not defeat the applicant s complaint of the failure of the gardaí to take possession of a video tape covering the scene of the robbery d The application is considered in the context of all the evidence likely to be put forward at the trial The court will have regard to the extent to which aspects of the prosecution case are contested In Bowes v Director of Public Prosecutions 2003 2 IR 25 the fact that the motor car in which the applicant was alleged to have been travelling had been lost by the gardaí was insufficient when the applicant did not contest the fact that he was driving it and the charge related to possession of drugs found in the boot of the car In a second applicant s appeal in Bowes the court had regard to the circumstantial character of the prosecution case of dangerous driving In McFarlane v Director of Public Prosecutions 2006 IESC 11 2007 1 IR 134 the existence of photographic evidence of the missing fingerprints was highly material to the complaint that the original items had been lost by the gardaí e The applicant must show by reference to the case to be made by the prosecution in effect the book of evidence how the allegedly missing evidence will affect the fairness of his trial Hardiman J said in McFarlane v Director of Public Prosecutions 2006 IESC 11 2007 1 IR 134 at page 144 that In order to demonstrate that risk there is obviously a need for an applicant to engage in a specific way with the evidence actually available so as to make the risk apparent f Whether the applicant through his solicitor or otherwise makes a timely request to the prosecution for access to or an opportunity to have the article issue expertly examined may be highly material In Bowes V Director of Public Prosecutions 2003 2 IR 25 the very belated request was critical to the refusal of relief On the other hand in Dunne v Director of Public Prosecutions 2002 2 IR 305 no request was made until some five months after charge and long after there was any possibility of producing a video tape In that case however Hardiman J stated at page 325 There is a responsibility on a defendant s advisers with their special knowledge and information to request material thought by them to be relevant However a suspect or an accused person will be unable to make a timely request if the gardaí have destroyed or parted with possession of the material Thus they must give consideration to the likely interests of the defence performing against such decisions g The essential question at all times is whether there is a real risk of an unfair trial See Scully v Director of Public Prosecutions 2005 IESC 11 2005 1 IR 242 The court should focus on that issue and not on whose fault it is that the evidence is missing and what the degree of that fault may be See Dunne v Director of Public Prosecutions 2002 3 IR 305 at page 322 Applying these principles to the present case it seems to me clear that this is not a case in which it can be said that the alleged missing evidence is central to the case being made by the prosecution Unlike Braddish and Ludlow the CCTV evidence here is not the basis of the identification of the accused On the contrary there was direct evidence from witnesses placing the accused at the scene Indeed he was arrested there by Garda Enright and his colleague who both witnessed him being abusive to Mr Hamid It can also be said with some justice that the Applicant has wholly failed to engage with the specifics of the case

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  • that act The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr Byrne s non adherence to the protocol and the Defendants failure to provide appropriate backup for Mr Byrne It seems therefore that the trial judge identified two distinct bases for liability first primary liability of a wrongdoer to a rescuer who responds to the peril created by the wrongdoer and second the vicarious liability of an employer for the negligent acts of his or her employee The trial judge proceeded to award the Plaintiff damages Against the decision on liability the Defendant appeals to this Court There is no appeal on the quantum of the damages On this appeal the Defendant takes four points which are interrelated to some extent First it is said that the trial judge was wrong to refuse the Defendant s application for a non suit at the end of the Plaintiff s case It was pointed out that almost all the evidence on which the trial judge relied in his finding of liability was derived from the Defendant s evidence Looked at critically it is suggested there was no prima facie case at the close of the Plaintiff s case It was argued that the trial judge had failed to give separate reasons for the refusal of the non suit application his reasons being subsumed in the general reasons upon which he found the Defendant negligent It is clear that there was very little evidence to sustain a finding at the close of the plaintiff s case the bulk of the evidence helpful to the Plaintiff was elicited in the cross examination of the Defendant s witnesses However before proceeding to analyse in any detail the precise weight of the evidence adduced by the Plaintiff a more basic issue arises on the assumption that there was no sufficient evidence to find a prima facie case at the close of the Plaintiff s case but where the Defendant goes into evidence and supplies the deficiency in the Plaintiff s case can an appeal court ignore the evidence which ex hypothesi show that the Defendant s had been negligent and nevertheless overturn what appears to be a correct decision in favour of the Plaintiff on the grounds that the Plaintiff had failed to establish a prima facie case in his own evidence and that the trial judge had wrongly refused the Defendant s application for a non suit It appears that the practice in criminal cases on this issue is a little unclear See Ryan and Magee The Irish Criminal Process p 341 but on the hearing of the appeal the Court drew the attention of the parties to a decision of the Court of Appeal in England in Payne v Harrison 1961 2 QB 403 where in a similar situation and having held that the judge had not in fact erred in law because there was just sufficient evidence at the end of the case for the plaintiff to justify his ruling the Court of Appeal went on to observe that since the defendant had not stood on his submission and had gone into evidence the duty of the appellate court was to assess the position realistically and consider the whole of the evidence including that of the defendant It would the court considered be a denial of justice if the court made its assessment on only that part of the evidence as it stood at the close of the plaintiff s case when the judge made the ruling appealed against While this decision is merely of persuasive authority it accurately expresses the conclusion to which I was inclined to come of my own volition In the circumstances I do not consider it necessary to analyse whether there was just sufficient evidence to establish a prima facie case at the close of the Plaintiff s case Instead I will consider the entirety of the evidence and whether the trial judge was correct to find that the Defendant was liable to the Plaintiff The second and somewhat related argument was that it was said that there was no expert evidence to support the Plaintiff s case It was however accepted that there is no absolute requirement that expert evidence be given in support of any plaintiff s claim and there are many matters which are within the ordinary judgment of the courts In AG Ruddy v Kenny 1960 94 ILTR 185 186 Davitt P observed that There are certain matters in which the law considers that the Court is not as capable as are expert witnesses in drawing inferences matters which require special study and experience in order that a just opinion may be formed as for instance matters of art science medicine engineering and so forth In regard to such matters witnesses of whose expertness the Court is satisfied are allowed to give evidence of their opinion It follows that where something is not a matter which requires special study or expertise the Court is in a position to draw its own conclusions However that is not to say that the absence of expert evidence did not hamper the plaintiff s case In Bradley v CIE 1976 IR 215 the Supreme Court outlined a test of negligence in the context of employment but which is of wider application Henchy J cited the formulation of Lord Dunedin in Morton v William Dixon Ltd 1909 SC 807 It is absolutely necessary that the proof of the fault or omission should be one of two kinds either to shew that the thing which he did not do was the thing which was commonly done by others in like circumstances or to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it Subsequent glosses on that passage have emphasised that the fundamental test is the conduct and judgment of the reasonable and prudent man and have explained that the reference to folly means no more than imprudent or unreasonable Henchy J concluded that the test does no more than provide a mode of testing whether in the class of cases to which it refers the employer is taking reasonable care for the safety of his employee or as it was sometimes put whether he has subjected him to unnecessary risk In my view Bradley v CIE provides some focus on the true issue in controversy here It is not the case that it is always necessary to have so called expert evidence sometimes fanciful and nearly always expensive on matters that are little more than common sense It cannot be suggested that there is an academic discipline of management of shopping centres in substantial rural towns The particular issues involved are not so recondite that it could be said that a court can only apply the test identified in Bradley to the facts of this case with the benefit of expert evidence However the difficulty here is not that such expert evidence was essential but rather that such evidence is a convenient way of giving evidence of general practice Here it could be said with some force that there was no evidence from any witness as to whether or not it was normal to have two or more security men on duty for late night shopping in a store with the size and throughput of Dunnes Stores in Thurles While there was reference in cross examination to a protocol produced by Dunnes only a portion of which Mr Byrne could remember the document itself was not put in evidence In the event there are significant difficulties with treating this as evidence of general practice from which negligence can be deduced First it is strictly speaking only the evidence of Dunnes own practice and not the general practice of reasonable store owners Second the evidence itself was somewhat equivocal Even if it was accepted that Mr Byrne was outnumbered and he maintained he only went after one culprit Alexander Colville his memory of the protocol was that he was not to act if he felt it was outside his capacities The test therefore was a somewhat subjective one and was not obviously breached All of this illustrates what was missing in the Plaintiff s case Given the rather dramatic and dangerous situation which arose the fact that no other Dunnes Stores employee was able to come to Mr Byrne s assistance and the fact that it seems highly probable that late night opening on Thursday is at least as busy and possibly more troublesome than day time shopping it seems likely that a person with even basic experience would be able to point to a series of flaws in the manner in which the system operated on that evening and could have compared it unfavourably with best practice However no evidence of that nature was given and I do not think that a court would be justified in determining of its own knowledge that it was for example folly or even unreasonable for Dunnes only to have had one security guard on late night shopping in July 2002 or for a security guard to confront one or at best two juvenile if somewhat troublesome shoplifters or when one ran off to have pursued him Indeed in this regard I would be very slow to impose through the law of negligence some inflexible rule that there must always be a minimum of two security guards in any store at least on the limited evidence proffered in this case I would be even more reluctant to stigmatise as negligent the acts of the security guard who confronted chased and detained a shoplifter especially one who appeared unruly intoxicated and given to violence It is one thing for prudence to suggest caution rather than courage in certain circumstances it is quite another that the law should demand caution and penalise courage However there is a more narrow basis for the conclusion that in this case Dunnes Stores failed to adhere to an appropriate standard of care Perhaps the most telling piece of evidence was that volunteered by Mr Byrne in cross examination that it was completely against procedure to involve a member of the public Mr Byrne gave that evidence while denying that he had requested Mr O Neill s assistance but the trial judge found that Mr Byrne had indeed asked Mr O Neill for help and on the evidence that conclusion was entirely appropriate and cannot now be challenged on this appeal On one view it might be said that involving a member of the public in breach of certain procedures makes Mr Byrne negligent and Dunnes Stores vicariously liable for his default However I think that that analysis would be more than a little artificial I am not sure that it can be said that any security guard no more than any citizen can be said to owe a duty of care to members of the public not to involve them by asking them for help to detain a suspect It is I think preferable to see that evidence as the clearest possible indication that if there was any system in place on the evening it had gone badly wrong In the absence of evidence of common practice it may not be possible to say with certainty that there ought to have been another security guard to assist Mr Byrne but there certainly ought to have been someone available to assist him The image of the two way radio which was useless because there was no one to communicate with is itself telling It is clear that there were managers on duty indeed Mr Byrne said that he asked Ms Stapleton to get them and that such managers could have assisted Mr Byrne if alerted to the situation It seems clear that there ought to have been a more effective and immediate method of communication with managers than having to resort to asking a passing cleaning lady to call them It does not appear that there was any system in place where the two way radio could be held by another person for the evening or any arrangement for Mr Byrne to be able to communicate with any other member of staff Even on the limited evidential record therefore I consider that the trial judge is entitled to come to the conclusion that this state of affairs was unreasonable and if necessary amounted to the type of folly which Lord Dunedin identified more than 100 years ago The third and fourth points argued by the Appellant can be taken together Even assuming some default on the part of Dunnes Stores such as that identified above it was nevertheless said that Dunnes Stores were not liable because their action or inaction did not cause the peril or give rise to the necessity for rescue On the contrary it was said Mr O Neill s injures were caused by the wrongful and indeed criminal acts of third parties The Appellant also stressed the fact that at the time of the assaults on Mr O Neill Garda Delaney had arrived and was sufficiently in charge to tell Mr McCormack to go away It was also emphasised that the actual assault on Mr O Neill had come out of the blue and clearly was not anticipated by the Garda The consideration of these arguments involves surveying a difficult intersection between two areas of the law of negligence which have posed problems of analysis over the years the rescuer cases and those cases in which it is contended that an alleged tortfeasor is responsible for injury caused by the wrongful acts of a third party At the outset it is necessary to consider if this was truly a rescue case at all The Appellant referred to the decision of this Court in Phillips v Durgan 1991 ILRM 321 In that case a couple had been retained by the first named plaintiff s brother to clean a house and then to decorate it The kitchen was very greasy The gas cooker which was the only means for heating water was itself defective producing only a guttering flame The first named plaintiff slipped and a towel she was carrying caught light from the cooker She was badly burned and her husband the second plaintiff also sustained burns trying to rescue her from the fire In the High Court the trial judge had rejected the contention that the defendant s negligence was a primary cause of the fire but had found for the plaintiffs considering that it was a form of rescue case The Supreme Court held that the case could not be treated as a rescue case but nevertheless upheld the award on the grounds that the defendant had been in breach of a primary duty of care owed to the plaintiff and since the defendant was the occupier of premises which posed a danger to lawful entrants including the plaintiffs It appears to be suggested that this case is similar in that it is suggested that the true cause of Mr O Neill s injuries was the wrongful indeed criminal act of Ciaran McCormack When Phillips v Durgan is analysed it seems to me to illustrate precisely why this is indeed a case which is properly addressed by reference to the principles established in the rescue cases As Cardozo J memorably observed in Wagner v International Railway 1921 133 NE 437 Danger invites rescue The cry of distress is the summons to relief The law does not ignore these reactions of the mind in tracing conduct to its consequences In the classic rescue case therefore a member of the public with no previous connection to the incident or the parties responds either to a cry for help or to a situation which itself cries out for help However the relationship of the Phillips to Mr Durgan was established by the existing contract between them They did not come upon a scene and respond to it they were required to be there by virtue of their agreement with Mr Durgan and his invitation to his unsafe premises It was entirely understandable therefore that the Supreme Court rejected the attempt to characterise them as somehow akin to rescuers By contrast the Plaintiff here is almost in the classic situation A member of the public with no prior knowledge or contact with any of the parties he responded not just to the situation but to a positive cry for help Quite apart from the dearth of evidence this case is undoubtedly made more complex as a matter of law by the fact that the direct cause of the Plaintiff s injury was the wrongful acts both criminal and tortious of another party Ciaran McCormack for whom Dunnes Stores were not responsible Looked at from one perspective it might be said and was said by the Appellant that the source of the peril giving rise to the need for rescue by Mr O Neill was Mr McCormack s violent act and not the carelessness of Dunnes Stores Alternatively it was said that the wrongful acts of Ciaran McCormack were the proximate cause of Mr O Neill s injuries and constituted a novus actus interveniens breaking any causal link between the negligence of Dunnes Stores and the injuries suffered I should say at this point that I am using the term negligence in its meaning in common usage even among lawyers rather than as a term of art It is technically incorrect to speak of negligence in the absence of establishing a duty of care and in one sense the question whether Dunnes Stores owed a duty of care to members of the public to protect them from the risk of assault is at the very heart of this case There is no reason in principle why if on the established law a party can be liable for

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  • negligently breached that protocol and the defendant is vicariously liable for that act The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr Byrne s non adherence to the protocol and the defendant s failure to provide appropriate backup for Mr Byrne 7 These findings fall into the following three parts i it was negligent on the part of the defendant to confide the security of premises consisting of drapery grocery and off licence to a single security guard ii it was negligent to equip that guard only with a mobile phone as distinct from two way radio iii it was negligent on the part of the security guard himself to confront and seek to apprehend the suspected shoplifter Colville instead of summoning the gardaí 8 The second and third headings were in effect closely related to and dependent on the first Mr Byrne explained the absence of a two way radio in evidence there was no point in having one when there was no other security man to communicate with The finding of negligence in deciding to confront Colville flowed from a part of Mr Byrne s evidence to the effect that a Dunnes Stores protocol not produced in evidence stated that the security staff were not to confront shoplifters or others if they were outnumbered but were to call for help The fundamental basis therefore of the judgment was that it was negligent on the part of the defendant to have only one security guard on duty on the occasion the plaintiff suffered his injury 9 Neither side called any expert to give evidence The evidence of Mr Byrne provided the only basis for the findings of negligence Mr Byrne had served in the defence forces where he had received training in restraint and self defence He had served in security in Dunne Stores for about three years originally in Clonmel and subsequently for a year and 1 2 to 2 years in Thurles There he had received procedural training There was no suggestion that he was inadequately trained for his assigned task He was cross examined about a security protocol about whose contents the evidence was to say the least fragmentary Insofar as Mr Byrne had seen a copy it was kept in Clonmel As already stated his instructions were that if he felt he was outnumbered he was to wait for help Mr Byrne s own interpretation of this provision of the protocol and he was the only witness to its contents was that he did not breach its terms by running after Colville and seeking to apprehend him he considered that he was confronting one person According to the witness the security complement at Dunnes Stores consisted of three security men himself a security manager and one part time security guard At times there would be two and at other times there would be one on duty When there were two they used two way radio He agreed that he had been unable effectively to communicate with anybody from Dunne stores over the approximately 20 minute period of the incident He agreed that this was not ideal and that the two way radio was a quicker method of communication than a mobile phone 10 The question that has to be posed is what was the basis in the evidence for concluding that it was negligent on the part of Dunne s Stores to have only one security man on duty 11 The decision of this court in Bradley v Córas Iompair Eireann 1976 I R 217 suggests that at least in cases of employers liability negligence can be established in either of two ways firstly by establishing a departure from known and accepted standards in the particular trade or industry secondly by demonstrating a failing so obvious as to be unreasonable Henchy J cited two principal authorities In Morton v William Dixon Ltd 1909 S C 807 Lord Dunedin pronounced what Henchy J considered to be the most commonly cited statement of the necessary degree of proof as follows I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds either to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances or to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it 12 That prescription was as Henchy J put it glossed by Lord Normand in Paris v Stepney Borough Council 1951 A C 367 at 382 The rule is stated with all the Lord President s trenchant lucidity It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances But it does not detract from the test of the conduct and judgment of the reasonable and prudent man If there is proof that a precaution is usually observed by other persons a reasonable and prudent man will follow the usual practice in the like circumstances Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it 13 The authority of Bradley v CIE was accepted by this Court in Kennedy v Hughes Dairy Ltd 1989 I L R M though McCarthy expressed doubt that Bradley should be regarded as laying down for all time two unchanging compartments into one or both of which every plaintiff s claim must be brought if it is to succeed In that case a majority of this Court held that the High Court had been wrong to withdraw a case from a jury on the authority of Bradley The plaintiff s claim that his employer had been negligent in failing to provide him with protective gloves or gauntlets

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  • children who reside with him 4 The respondent is not presently paying maintenance for the support of the two dependant children 5 In these proceedings the applicant seeks maintenance for the support of the two children pursuant to the provisions of section 5A 1 of the Family law Maintenance of Spouses and Children Act 1976 as inserted by the Status of Children Act 1987 6 In the District Court proceedings it emerged that the respondent is in receipt of payments of 200 per month from the Wards of Court Office of the High Court in respect of a settlement of a claim from the Residential Institutions Redress Board 7 The District judge sought details of the amount of the settlement 8 Michael E Hanahoe Solicitors acted for the respondent in relation to her claim before the Redress Board By letter dated the 16th day of January 2006 the said solicitor stated that they were unable to divulge any information regarding the claim as there was a confidentiality requirement on each applicant to the Residential Institutions Redress Board pursuant to section 28 of the Residential Institutions Redress Act 2002 Two preliminary issues arose on the hearing before the Circuit Family Court 1 Whether the applicant is entitled to details of the award made by the Residential Institutions Redress Board 2 Whether the court is entitled to take into account the award when deciding the issue of maintenance Submissions of the Applicant The respondent has a legal and moral duty to support and maintain her children from the resources available to her The Family Law Maintenance of Spouses and Children Act 1976 section 5A inserted by the Status of Children Act 1987 section 18 provides that the court in deciding whether to make a maintenance order under the section where the parents of a dependant child are not married and if it decides to do so in determining the amount of any payment shall have regard to all the circumstances of the case and in particular to the following matters a The income earning capacity if any property and other financial resources of i each parent ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent including income or benefits to which either parent the dependant child as aforesaid or such other dependant children are entitled by or under statute and the financial and other responsibilities of each parent towards i a spouse ii the dependant child in respect of whom the order is sought and iii any other dependant children of either parent and the needs of any dependant child as aforesaid or of any such other dependant children including the need for care and attention Capital assets are available to satisfy a maintenance order C P v D P 1983 3 I L R M 380 R K v M K the High Court unreported Finlay P 24th October 1978 J D v D D 1997 3 I R 643 Daubrey v Daubrey 1976 2 All E R 453 damages awarded for personal injury Having regard to the foregoing it is submitted that the applicant is entitled to know the amount of the award made to the respondent and when the court in hearing the application for a maintenance order may take the same into account The applicant accepts that in taking the amount of the award into account the source and rationale of the funds should not be ignored Submissions of the Respondent The respondent submits that the provisions of section 28 6 and section 28 9 are unambiguous and reflect the clear intention of the Oireachtas in enacting the Act of 2002 The requirement of confidentiality is designed to encourage those who suffered abuse in residential institutions to come forward Notwithstanding that the Circuit Family Court proceedings are in camera disclosure of the amount of the award is in clear breach of the provisions of section 28 of the 2002 Act Reliance is placed on M V v The Commission to Enquire into Child Abuse Respondent and Residential Institutions Redress Board Notice Party the High Court unreported O Neill J 7th November 2007 where having regard to terms of section 27 of the Commission to Inquire into Child Abuse Act 2000 which in its terms differs from section 28 of the Residential Institutions Redress Act 2002 as amended it was held that the obligation of confidentiality contained in section 27 1 is absolute and does not admit of any exceptions save those set out in subsection 2 of section 27 Reliance is also placed on McGreal v D P P the High Court unreported Hanna J 14th July 2008 The applicant there sought to procure evidence in statements that the complainant on a charge of rape had made to the Residential Institutions Redress Board which complaint had been disbelieved On application by the D P P the applicant s solicitor s grounding affidavit was redacted insofar as it concerned that application upon the basis that section 28 6 of the Act of 2002 prevented reference to that application The fact that the applicant had come into possession of information relating to the application to the Review Board would not make it admissible in evidence on the application for a maintenance order Asburton v Pape 1913 2 Ch 469 Wagstaffe v Wagstaffe v 1 F L R 323 is authority for the proposition that the availability of capital by way of an award of damages is a factor to be taken into account If the amount is at all to be taken into account the source and rationale for the funds should not be ignored see C v C 1995 2 F L R 171 These cases however relate to open and public awards for personal injuries unlike the award the subject matter of this application Discussion and decision Section 28 1 of the Residential Institutions Redress Act 2002 in its terms is directed to 1 The Board

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  • present case namely whether the attack on the plaintiff was the result of a lack of care by the prison authorities insofar as a dangerous knife came into the possession of the plaintiff s assailant 6 It is necessary at this point to return to consider the facts of the case in a little more detail 7 Between 10 am and 11 am on 19th January 2003 a number of prisoners were awaiting delivery to them of Methadone from the prison pharmacy The waiting area was some 50 to 55 long and 7 feet wide and was separated from the main adjoining corridor by a wall surmounted by bars or rails placed so as to permit observation by a prison officer in the corridor of prisoners within that area The separated area was divided in turn into four successive rectangular areas called A B C and D which came to be called cages probably because they were separated by barred gates The pharmacy adjoined area A Prisoners were admitted to area D and moved through to area B prior to admission one by one to area A which adjoined the pharmacy 8 There was controversy about whether prisoners were confined to area B approximately 7 feet by fourteen feet or had the entire of areas B C and D available This was not resolved There was also some disagreement about the total number of prisoners who were in the area The plaintiff said there were about twenty The prison officers said there were ten to fifteen 9 Within area A were two prison officers Mr David Hughes had the task of admitting one prisoner at a time from area B to area A Ms Sharon Murray was to verify identity see that the prisoner received his Methadone through a hatch from one of the prison nurses in the pharmacy and that he took it and then to allow him back to the main corridor before the next prisoner was admitted In the corridor was Prison Officer Hickey 10 The plaintiff gave evidence that he was sitting or crouching on a bench in area B There were about twenty prisoners there it was packed and the gate from area C was locked He felt something coming from behind He fell on the ground and his attacker whom he identified as Jeffrey Mitchel a fellow prisoner cut and slit his face from his nose and behind his ear into the scalp he then cut his stomach he just kept sliding the blade along my skin Following his scream for help Officer Hughes opened the gate to area A and Officer Hickey came in and dragged the plaintiff out The plaintiff said that it all took a matter of seconds He described the knife at first as a long blade kind of Stanley blade he agreed to it being described as having a retractable blade and later said it was a long skinny blade a plastic handle on it and the blade flicks out so you can break the bits off it He said it was of the type used for cutting cardboard boxes open 11 In effect the defence appears to have accepted at the High Court hearing that it had been established that a knife akin to a Stanley blade was used This was distinguished from the sort of improvised weapons that prisoners devise from such normal material as can be found in the prison kitchen or bathrooms An example would be a razor blade melted into the end of a toothbrush No evidence was called to contradict the plaintiff on the nature of the knife used The severity of the lacerations sustained by the plaintiff seems at least consistent with the use of an extremely sharp blade No weapon was found on search after the incident a fact which struck Mr Outram and the learned trial judge as extraordinary 12 Mr Outram both in his report and his evidence made a number of criticisms of the security regime at Wheatfield prison It is fair to say that he also found much to praise However so far as the present appeal is concerned his central criticisms were that The system of security both at entry and within the prison was in his view inadequate Based on his single inspection visit in 2006 the system of searching at entry was inappropriately lax he made a number of criticisms a knife such as that described by the plaintiff must have come from outside the prison In addition prisoners moving from the residential area to another area of the prison should be searched both by hand and by metal detection The holding area where prisoners had to wait prior to entry to area A was on the plaintiff s account overcrowded there should not have been more than four prisoners in the area at one time Prisoners awaiting their dose of Methadone are likely to be volatile and disruptive 13 Mr Outram also thought there should have been CCTV covering the area as well as some means of raising the alarm 14 I propose to deal in the first instance with the appeal by the defendants The decision by the learned trial judge to award damages to the plaintiff was based entirely on the evidence given at the judge s invitation by Mr Outram when he had recalled him to the witness box The witness reiterated in the first place that he would not have started from the point where there were many people present in area B His direct evidence had been to the effect that there should not have been more than four Pressed to deal with a situation where there were so many he said that one officer would be the minimum and that he would have expected two officers to be there He was not asked and did not comment on the possibility that part of the injuries those to the plaintiff s lower body might have been avoided 15

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