archive-ie.com » IE » S » SUPREMECOURT.IE

Total: 1020

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • due course The plaintiff gave evidence that on the 25th November 1993 when she saw the defendant Then I asked about the scar and he said it would take the form of a thin white line about an inch long He said he would do it under local anaesthetic 33 Q Did he say anything else about the scarring that would result A No 34 Q Can I just ask you specifically in relation to what is raised in the defence this is the document coming to us from Mr O Reilly where I understand that it will be in his evidence that he discussed with you the possibility of a sub optimal scar greater in diameter to the lesion owing to its nature and location and the fact that the skin would stretch Did he say that to you A No 35 Q Did he say to you as is outlined in his solicitor s letter did he discuss with you the small risk of malignant transformation A Yes but he said this was very slight 36 Q He offered you a scar revisional procedure is that right A Yes 37 Q His solicitors say to your solicitors that Mr O Reilly explained to you that a scar would result and that in this procedure and having regard to the nature of the lesion the scar would be approximately twice the diameter of the lesion to be removed A No 38 Q He did not say that A No 39 Q If he had said anything like that to you would you have gone ahead with the removal of the mole A No 40 Q You did go ahead with the removal of the mole is that not right A I did yes 41 Q I think it was removed on the 6th December 1993 is that right A Yes that is right On the 13th December two sutures were removed and the plaintiff was seen by the defendant Five days later on the 18th December the plaintiff saw her general practitioner and she was told to go to St Vincent s Hospital On the 20th December the plaintiff went to St Vincent s and the wound was found to be infected On the 22nd December the plaintiff went to hospital On the 23rd December the plaintiff saw a doctor and the doctor noted the separation of the wound On the 23rd December 1993 the defendant wrote to the plaintiff s general practitioner This lady was admitted under my care and had excision of a large congenital intradermal naevus on the lateral aspect of her right thigh Unfortunately the primary repair was quite tight and the wound has dehisced over the distal half However it is clean and should heal by wound contraction over the coming weeks I will keep her under review On the 27th January 1994 the defendant wrote to the plaintiff s general practitioner This ladys scar has healed It has stretched slightly and may require revision in the future I will review her again in six months time There was a conflict of evidence as to the warning and information given to the plaintiff about the type of scar she might have While the plaintiff gave evidence that she was told that she would have a scar with a thin white line and that she got a result that she was not warned of the evidence of the defendant was entirely different Mr O Reilly gave evidence as follows 107 Q If she says that you said that it would be approximately one inch long she may be correct in that A Yes possibly maybe a little bit longer than one inch yes I cannot recall if I used inches or centimetres but I would always say at least two to two and a half times the diameter of the lesion to give an approximate length 108 Q She says you said approximately an inch long and she may well be right A Yes 109 Q Could I put it to you that she is more likely to be right because she is the one patient against you with many patients A Not necessarily so I would have made it in my mind perfectly clear what the length of the scar would be like and again what this would be like down the line 137 Q Might it be Mr O Reilly that Ms McCann came out with the impression and that you gave her the impression that she would be left with a scar that would not be significant A She would have come out with the impression that she would have a significant scar following this procedure Mr Justice Lavan Would you like to put to this witness the height of your case Mr Murphy Mr Murphy I m doing that Mr Justice Lavan No you are not You are most unfair to the witness The height of your case is Mr Goldin s evidence that the scar is not far off what he Mr Goldin would have expected Mr Murphy My Lord I am cross examining this witness and I will not be interrupted Mr Justice Lavan I have given seven opportunities and you have gone back on the same that is the case that your expert has given me in sworn evidence You may put that to the witness but you have not so far put it to him 138 Q Mr O Reilly in relation to Mr Goldin s evidence Mr Goldin s opinion is that you should have informed her that she would have a scar that would be likely to be larger than the lesion that was being removed A I would certainly have informed her that she would have a wide scar in the area As I said it is impossible to predict She certainly has a wide scar and of that there is no doubt I would like to think that if the wound didn t burst open that the scar would be of a narrower dimension than it is now but I do not think there is any way that one could predict the final dimensions of the scar 139 Q Do you agree with Mr Goldin that you ought to have told her that it was larger That the resulting scar was likely to be larger than the lesion being removed A I would certainly infer that she would end up with a wide scar Now I cannot recall whether I would have inferred that in relation to the size of the lesion that was to be removed Mr Henry Goldin consultant plastic surgeon gave evidence He gave evidence on behalf of the plaintiff s case He stated inter alia 289 Q If I understood your evidence I think you are seeking to suggest to the court that there could be another explanation namely that the tension on the stitching was too tight A Yes 290 Q I have to suggest to you that that is not a probable explanation because if the tension in the wound was too tight that is something which would have been observed either by Dr Murphy when he came to stitch it or even if he had missed it it would have been observed by Mr O Reilly on the 13th December when he saw Ms McCann one week later A I would have expected the wound to be tight from the dimensions of the excision and from the fact that we have all accepted the wound gets a little larger when you make the incision so the wound was going to be tight right from the beginning I think it is more likely than not that the stitches disrupted for some reason and the wound therefore broke down and that while infection is a possible explanation in my opinion it is more likely that the wound just broke down The stitches did not hold it was very tight and it broke down 291 Q What other reason Mr Goldin are you suggesting to the court would cause the stitches to break down A It s just the tension that s all 292 Q There are stitches at two levels here is that correct A Yes 293 Q There are sutures deep down A Yes 294 Q Subcutaneously is the operating note A Yes 297 Q Which are you suggesting would have broken down firstly A You see the problem is that when some of the stitches were removed the wound was not completely healed Two stitches were removed correctly leaving other stitches behind because the wound was not yet sufficiently well healed for all the other stitches to be taken out That is good standard practice When the next dressing was done the wound was found to be open Why was the wound open My belief is the tension that is the main problem here That the stitches did not hold The skin was too tight The movement of the patient The size of the wound The stitches did not hold I am not suggesting that the surgeon did not tie his knots properly or did not put them in properly but they were going through fat which is friable tissue and the stitches did not hold under a tight wound and that is why it opened 298 Q You are not suggesting that the reason it opened was due to any wrong way in which the stitches were put in by the surgeon is that correct A I am not suggesting the stitches were put in wrongly I am suggesting the thing was very tight and that the stitches did not hold 299 Q Are you simply suggesting to the court that it may have been simply some movement of Ms McCann which caused the wound to open A It is not as simple as one thing it is a combination of things You have the tightness of the wound you have the size of the wound Whether steps were taken to release the tension or not How long the stitches remained in for Were there infection or haematoma Whether the haematoma was there interfering with the wound healing without infection and then you get infection 300 Q I have to respectfully suggest to you that you are being a little disingenuous now Can I firstly say to you my instructions are that Dr Murphy s practice at the time was that he would have carried out undermining of the skin edges if he had considered that it was necessary given the size of the wound that it was not his practice and Mr O Reilly and Mr Lawlor I am instructed will give similar evidence that it was none of their practices to record undermining in operation notes A Where do you draw the line as to what you record in the notes and what you don t record in the notes You put down all the material facts I believe 302 Q Now if I give you that information that Dr Murphy will be telling the court that it was his practice where he considered it necessary to undermine the skin for the very reason you say to be able to draw the skin back together and give him a little bit A I am quite ready to accept that if he said that he did that 305 Q What I have to suggest to you is that in the absence of any abnormality or anything wrong being observed on the 13th that it must follow that the most probable cause of the break down by the following Friday or Saturday is that the infection has eaten into the sutures and caused the breakdown of the wound A You suggest that it is an abscess I feel that on the balance of probabilities on balance I cannot say for certain but on balance that the wound was very tight and that s the reason that it broke down 306 Q What evidence have you found of that Mr Goldin A Because the wound broke down 307 Q Have you any evidence at all that the wound tightened A There is a letter for example in the notes suggesting that the wound was rather tight 308 Q That is the letter written on the 23rd December A Yes and as I said I would have expected the wound to be tight from that size of excision on a young woman s thigh 309 Q If I understand you then you are telling the court that you think the wound was probably tight because of the position of the wound on Ms McCann is that correct because it was on the thigh A Yes 310 Q Was I correct in understanding you to say that you are not suggesting that there was anything incorrect in the way the stitching was done A Correct 311 Q Are you therefore telling the court that you can have this breakdown of a wound without any fault on the part of the surgeon A Yes 312 Q That is what you believe to have occurred on this occasion A Yes In light of the evidence before the High Court the question arises as to whether this appellate court should interfere with the decision of that Court The jurisdiction of this court has been referred to many times See Hay v O Grady 1992 1 I R 210 From an analysis of the transcript it is clear that there was a conflict of evidence The learned trial judge heard the evidence He heard and saw the plaintiff while giving her evidence and her medical witness He heard the evidence of the defendant All of the points raised by the plaintiff were put to the defendant There was a conflict of evidence The learned trial judge was entitled to make a determination on this conflict of fact There was evidence upon which the learned trial judge could reach his conclusion The trial judge relied on the evidence of the defendant which he was entitled to do This evidence was supported by that of Dr Goldin upon which the trial judge was also entitled to rely The plaintiff has been left with a scar which the medical evidence indicated is pretty much the type of scar one would expect In light of the evidence it is clear that the High Court judge was entitled to determine the case as he did against the plaintiff As to the issue of consent it was not contested that the plaintiff had consented to the procedure It was submitted that she should have given her consent again to Dr Murphy immediately before the procedure itself The consent form was signed and was in evidence before the trial court There was sufficient evidence for the finding of the trial judge to be sustainable There was a conflict between the plaintiff and the defendant But there is no doubt that evidence existed that the plaintiff was informed There was the evidence of the defendant and the letter of the defendant to the G P referring to the matter which letter is set out previously in this judgment Allied to the question of consent was a contention made on behalf of the plaintiff that she had not been adequately informed as to the nature and extent of the scar with which she would be left The plaintiff s evidence was that she was told by Mr O Reilly that she would be left with a scar in the form of a thin white line about an inch long She stated that if she had been informed that the procedure would result in a scar approximately twice the diameter of the lesion to be removed she would not have undergone it In conflict with this evidence the defendant Mr O Reilly rejected the suggestion that he had told the plaintiff that she would end up with a one inch scar which would be a thin white line In evidence he explained why he did so as follows Two reasons number one the length of the scar I cannot remember what I have said in the actual dimensions but I made it clear that the scar would be approximately two to perhaps two and a half times the length the diameter of the lesion That is point number one Number two in this part of the thigh in a young girl in anyone the skin is quite tight there so that the scar would have a tendency to stretch and I would have made that clear as well This will almost certainly not be a white line scar This scar would have a tendency to stretch In other words become widened with time I cannot remember if I put dimensions on the width of the scar but I would have made it clear it would not be a nice fine line scar In referring to the scar the plaintiff s expert Dr Goldin acknowledged that while the scar was not an ideal one it was not far off what he would have expected after an incision of this nature at this site The relevant extract is cited below The learned trial judge heard all the evidence tendered on behalf of the plaintiff and the defendant on this point and he was entitled to resolve the matter by relying on the defendant s evidence in preference to the plaintiff s On the issue of whether the surgery was carried out negligently there was evidence in support of the defendant There was the defendant s evidence and the evidence of Mr Goldin who was the expert called on behalf of the plaintiff For example on the transcript of the evidence heard on the 24th October 2000 Mr Goldin was asked and answered as follows 248 Q In relation to the procedure itself by Dr Murphy A The notes indicate a fairly standard type of

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/1520e22d61ce9ad780256cc400383cdb?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • immediately preceding the time of the making of the application the parents of the child to whom the declaration under section 2 1 relates for physical or moral reasons have failed in their duty towards the child B it is likely that such failure will continue without interruption until the child attains the age of 18 years C such failure constitutes an abandonment on the part of the parents of all parental rights whether under the Constitution or otherwise with respect to the child and D by reason of such failure the State as guardian of the common good should supply the place of the parents II that the child A at the time of the making of the application is in the custody of and has a home with the applicants and B for a continuous period of not less than 12 months immediately preceding that time has been in the custody of and has a home with the applicants and III that the adoption of the child by the applicants is an appropriate means by which to supply the place of the parents the Court may if it so thinks fit and is satisfied having had due regard for the rights whether under the Constitution or otherwise of the persons concerned including the natural and imprescriptible rights of the child that it would be in the best interests of the child to do so make an order authorising the Board to make an adoption order in relation to the child in favour of the applicants 2 Before making an order under subsection 1 the Court shall in so far as is practicable give due consideration having regard to his age and understanding to the wishes of the child concerned 3 The Court may of its own motion or on application to it on that behalf make an order adding such other persons as it thinks fit as parties to proceedings under subsection 1 The health board concerned shall be joined as a party to proceedings under subsection 1 b The remaining subsections of this section are irrelevant Section 4 insofar as it is relevant provides as follows 4 1 Subject to the provisions of this section the Court shall not make an order under section 3 1 without having heard the parents of the child concerned and any other persons who in the opinion of the Court ought to be heard by it 2 Where the parents concerned or either of them having been requested to give evidence to the Court of the hearing of an application for an order under section 3 1 fail or refuse to do so the Court may if it so thinks fit notwithstanding the absence of the evidence of the parents or as the case may be of either of them make the order 3 Where the parents concerned or either of them fail to respond to such a request as aforesaid the failure may be taken by the Court for the purposes of subsection 2 to be a failure by the parents or as the case may be by either of them to give evidence to the Court at the hearing concerned Submissions on the Appeal Extensive grounds of appeal were set out in the notice of appeal and full written submissions were presented on behalf of the appellant P O D on behalf of the respondents Mr and Mrs H and on behalf of An Bord Uchtála The main issues in contention between the parties were developed during oral submissions before this Court Senior counsel for the appellant notice party P O D Mr Rogers laid considerable stress on the appellant s rights to guardianship and custody of her child as set out in the Guardianship of Infants Act 1964 Section 6 4 of that Act provided that The mother of an illegitimate infant shall be guardian of the infant Section 10 2 a of the same Act provided that a guardian under the Act as guardian of the person shall as against every person not being jointly with him a guardian of the person be entitled to the custody of the infant and shall be entitled to take proceedings for the restoration of its custody of the infant against any person who wrongfully takes away or detains the infant The appellant therefore had a right under the Act to the custody of her child In addition she had a constitutional right under Article 40 3 as held by this Court in G v An Bord Uchtála 1980 IR 32 It was clear that the appellant due to her mental illness was unable to care for her daughter This was not in issue and was fully brought out in the evidence of Dr Neville and the health board social workers However she had at all times when she was in sufficiently good health exercised her right of access Mr Rogers submitted that the right of access was an inherent part of the right to custody and referred to section11 2 a of the Guardianship of Infants Act 1964 which empowered the Court to give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of its father or mother thus coupling custody and access Mr Rogers submitted that the appellant had not failed in her duty to her child She was incapable due to her illness of providing day to day care herself but the voluntary placing of her child in care of the health board and her agreement to the child remaining in the foster care of Mr and Mrs H was in reality an exercise of her duty towards the child Senior Counsel for the appellant also referred to the judgment of the learned trial judge and submitted that there was an internal contradiction in the findings of fact upon which the learned judge had based his conclusions At page 26 of the judgment the trial judge made findings in regard to the appellant s failure in her duty towards her child as follows The inexorable weight of the evidence obliges the Court to find that P for physical reasons and not for moral reasons had totally failed in her duty towards J for a continuous period of not less than twelve months immediately preceding the making of this application This does not involve any finding of blameworthiness on her part The Court finds that this failure has not been due to externally originating circumstances such as poverty but is solely due to mental illness chronic severe depression and a mild impairment of mental function The Court is satisfied on the balance of probabilities that there is no likelihood of P resuming the discharge of her duty towards J before J reaches the age of eighteen years On the other hand when dealing with the question of abandonment at page 28 of the judgment the learned judge stated However in the absence of some overwhelming disability or incapacity a total failure of parental duty to a child where the parent could have cared to some extent for the child even though inadequately and not without the maximum available amount of family and public assistance must give rise to a presumption of facts that such parents had abandoned the rights as well as the duties This presumption could of course be rebutted by evidence including statements of the parents inconsistent with abandonment This presumption of abandonment seemed to be based on a finding that the appellant would in fact have been able to care for her child even if inadequately This Mr Rogers argued was contrary to the expert evidence that was before the Court in particular the evidence of Dr Neville who had stated as her opinion that P would never have been able to care for the child herself and would be barely able to care for herself Senior counsel also submitted that the requirement of abandonment under section 3 1 I C of the 1988 Act should be interpreted strictly It had been held by this Court in In Re The Adoption NO 2 Bill 1987 1989 IR 656 the Reference Judgment at page 664 that Failure of parental duty established under sub clause I A and B is not of itself evidence of abandonment The necessity for the proof of abandonment indicates a special regard for the constitutionally protected parental rights In this case P O D who had exercised rights of access over the years and who had steadfastly refused to consent to adoption could not be said to have abandoned either her statutory or her constitutional rights Counsel placed considerable reliance on the decision of this Court upholding the decision of Lardner J in the High Court in the case of Western Health Board v An Bord Uchtála 1995 3 IR 178 where a father who had had little or no contact with his child was held on the evidence not to have abandoned all his parental rights I will refer to this case in more detail in a later part of this judgment Mr Rogers also referred to the judgment of Walsh J in G v An Bord Uchtála IR 32 where the learned judge held at page 74 that in order for an agreement by a mother to place her child for adoption to be valid the agreement must be such as to amount to a fully informed free and willing surrender or abandonment of her natural rights as a mother Counsel submitted that abandonment of parental rights under the 1988 Act should be measured by a similar standard the parent must freely and willingly decide to abandon his or her rights Senior Counsel for An Bord Uchtála Ms Flanagan emphasised that the Board maintained a neutral stance as between the parties in the proceedings The Board had provided unchallenged evidence to the High Court that it had fulfilled its statutory duty in dealing as it did with the application by Mr and Mrs H for the adoption of J and in making the appropriate declaration under section 2 of the 1988 Act The Board sought only to make submissions in the form of providing a review of the relevant dicta in the cases in which the interpretation of the provisions of the 1988 Act had been considered both by this Court and by the High Court In her written submission counsel provided a helpful survey of the relevant case law In particular Ms Flanagan drew attention to the unreported judgment of O Higgins J in Southern Health Board and M D and J D v An Bord Uchtála unreported High Court O Higgins J 20th December 2001 Senior Counsel for the applicants respondents Ms Clissman submitted that what was required by section 3 1 I A was a failure of duty by the parents This was not equivalent to a breach of duty it need not be blameworthy or due to the parents fault see In Re Adoption No 2 Bill 1977 1989 IR 656 Both article 42 5 of the Constitution and section 3 of the Act referred to physical reasons this counsel submitted must include mental illness as it could not in justice be held that a parent could fail in his or her duty through physical illness or disability but that a mentally ill parent who was equally disabled from ordinary parenting could not come within the terms of section 3 She referred to the judgment of O Higgins J in Southern Health and M D and J D v An Bord Uchtála unreported 20th December 2001 where he held that the mother in the case had failed in her duty towards her child through mental incapacity Ms Clissman pointed out that in the instant case all access visits by P to J had been initiated either by the foster parents or by the health board She disagreed with Mr Rogers submission that access was essentially a custody right of the parent arguing that in the general context of family law access was regarded as a right of the child rather than of the parent This was reflected in recent amendments to the Guardianship of Infants Act 1964 permitting grandparents and other persons to be granted access in the interests of the child Ms Clissman submitted that the 1988 Act and the Constitution spoke of the fulfilment of parental duties rather than the exercise of parental rights the Act was child centred as was stated by Denham J in SHB v An Bord Uchtála 2000 1 IR 165 Parental duties should be interpreted as the actual responsibility of bringing up the child providing physical and emotional care day by day making day by day decisions in regard to the child s welfare providing for the child s education and for the child s medical care All of this had been fully and exclusively provided for J by Mr and Mrs H While P had visited J from time to time her role had been much like that of an occasional visitor she was not fulfilling the duties of a parent She referred to the finding of the learned trial judge at page 31 of the judgment that P was a visitor rather than a parent In reference to the requirement of abandonment Ms Clissman drew attention to the wording of the Act such failure constitutes an abandonment on the part of the parents of all parental rights The abandonment was not a separate item but was directly connected to the failure even if as stated by this Court in the Art 26 Reference case failure of itself did not necessarily mean that there was abandonment Counsel relied on the judgment of Denham J in Southern Health Board v An Bord Uchtála 2000 1 IR 165 where the learned judge held that abandonment in this context had a special legal meaning which was not equivalent to deserting or forsaking a child Here P had totally given over the responsibility of raising her child to the foster parents and was quite specifically happy that her child should remain in their care on a permanent basis This was the reality of abandonment of her parental rights in the legal sense as outlined by Denham J Referring to the position of the father in the Western Health Board case Ms Clissman pointed out that in that case the father had purposively sought to obtain custody of his child through an application to the District Court under the Guardianship of Infants Act This was a positive act which along with other evidence had been held to be inconsistent with abandonment This could be distinguished from the position in the present case Ms Clissman acknowledged that P had refused consent to the adoption of J but submitted that if this failure to consent as such was held to negative any possible finding of abandonment the clear purpose of the 1988 Act could be set at naught The Legislative Context Prior to considering the interpretation and application of the provisions of sections 3 and 4 of the Adoption Act the 1988 Act to the facts of the instant case it would in my view be helpful to look at the legislative history and context of the statute itself Section 9 of the Act provides in the usual form that the 1988 Act and the previous Adoption Acts from 1952 onwards may be cited together and shall be construed together as one The Adoption Act 1952 provided for a system of legal adoption for the first time in this jurisdiction Under section 10 of that Act the only children eligible for adoption were those who were either illegitimate or were orphans both of whose parents were dead A dual system of consent by the mother of such a child was established She first had to agree to place her child for adoption and at a later stage after the child had reached the age of at least six months she executed a consent to adoption under section14 of the Act of 1952 This consent was essential and had to be given in writing in the prescribed form The mother s consent could be withdrawn at any time before the making of the adoption order An Bord Uchtála could dispense with the mother s consent only in very narrow circumstances if she was incapable by reason of mental infirmity of giving consent or she could not be found Under this legislation considerable problems arose over the years in cases where the mother had placed her child with prospective adopters generally through an adoption society and subsequently failed or refused to execute the consent to adoption In some cases the mother wished to reclaim the child in others she did not The children involved were thus often left in long term care of the respective adopters but with none of the security of adoption In an endeavour to cure this mischief the Oireachtas enacted the Adoption Act 1974 Section 3 of that Act provided that in a case where the mother had agreed to the placing of the child for adoption and subsequently failed or refused to give the requisite consent or withdrew a consent already given the High Court could in the best interests of the child make an order authorising An Bord Uchtála to dispense with the mother s consent Much of the established case law concerning adoption from the leading case of G vAn Bord Uchtala 1980 IR 32 onwards has dealt with the interpretation of this section The position however remained that only illegitimate or orphan children were eligible for adoption The children of married parents who formed part of families whose rights arose under Articles 41 and 42 of the Constitution could never be adopted even in cases where they had been left in the care of foster parents for many years and where there was no likelihood that they would ever return to the care of their parents Other children as in the case of the child at the centre of the present case had been for a long period in the care of foster parents but could not be adopted because their unmarried parents had never agreed to place them for adoption in the first place It was with a view to curing this mischief that the Oireachtas enacted the 1988 Act The long title of the Act describes it as an Act to provide in exceptional cases where the parents for physical or moral reasons have failed in their duty towards their children for the supplying by the adoption of the children of the place of the parents and for that purpose and other purposes to amend and extend the Adoption Acts 1952 to 1976 While the explanatory memorandum which originally accompanied the Bill as it was introduced in the Oireachtas cannot be authoritative as an aid to interpretation it is perhaps of interest that in that Memorandum the aim of the Bill was stated to be To extend the categories of children who may legally adopted in particular it will enable the adoption in certain very restricted and exceptional circumstances of legitimate children with a parent or parents alive Under the heading Proposals to extend the Adoption Laws at paragraph 5 it was stated There have been many calls over the years for changes in the adoption laws to enable the adoption of children who for varying reasons have been separated from or abandoned by parents who are unlikely to resume or are incapable of resuming their parental role Most of these children would at present be in the care of health boards and would either be with foster parents or in residential children s homes The Act is therefore a child centred Act It provides for the adoption of children of married parents in limited circumstances It is for this reason that the terms of section 3 of the Act closely reflect the wording of Article 42 5 of the Constitution In exceptional cases where the parents for physical or moral reasons fail in their duty towards their children the State as guardian of the common good by appropriate means shall endeavour to supply the place of the parents but always with due regard for the natural and imprescriptible rights of the child While the unmarried mother does not possess the inalienable and imprescriptible rights attributed to the family under Article 41 she does possess rights under Article 40 3 of the Constitution which have been described and upheld by this Court in G v An Bord Uchtála to which I shall refer in greater detail later In a case where she has not agreed to place her child for adoption the provisions of sections 3 and 4 of the 1988 Act as interpreted by this Court must also apply to her It is clear that the Act of 1998 is a remedial social statute designed to permit the adoption of children who had previously been denied the benefits of adoption A purposive approach should be applied to the interpretation of such a statute In his well known dictum in the case of Bank of Ireland v Purcell 1989 IR 327 referring to the Family Home Protection Act 1976 Walsh J stated As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done Analysis and Conclusions The Notice Party Appellant s Right to Custody It is common case that J will remain with the foster parents and applicants for adoption Mr and Mrs H until she is eighteen While therefore no issue arises regarding her de facto custody and care Mr Rogers has put forward arguments regarding P s constitutional and statutory right to custody of her child on which she bases his submission that P s access visits to J are an exercise of her inherent right to custody and thus of her duty as a parent In G v An Bord Uchtála 1980 IR 32 a majority of this Court held that an unmarried mother had rights under Article 40 3 of the Constitution The matter is succinctly set out in the judgment of O Higgins C J at page 54 to 55 of the Report under the heading The Mother s Rights as follows In the first place it should be noted that the mother is not the mother of a family in the sense in which the term is used in the Constitution Article 41 of the Constitution which recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law refers exclusively to the family founded and based on the institution of marriage It is this family which in Article 41 s 1 sub s 2 the State guarantees to protect in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State But the plaintiff is a mother and as such she has rights which derive from the fact of motherhood and from nature itself These rights are among her personal rights as a human being and they are rights which under Article 40 s 3 sub s 1 the State is bound to respect defend and vindicate Suffice it to say that this plaintiff as a mother had a natural right to the custody of her child who was an infant and that this natural right of hers is recognised and protected by Article 40 s 3 sub s 1 of the Constitution Section 6 sub s 4 and s 10 sub s 2 a of the Guardianship of Infants Act 1964 constitute a compliance by the State with its obligation in relation to the mother of an illegitimate child to defend and vindicate in its laws this right to custody These statutory provisions make the mother guardian of her illegitimate child and give the mother statutory rights to sue for custody However these rights of the mother in relation to her child are neither inalienable nor imprescriptible as are the rights of the family under Article 41 They can be alienated or transferred in whole or in part and either subject to conditions or absolutely or they can be lost by the mother if her conduct towards the child amounts to an abandonment or an abdication of her rights and duties G v An Bord Uchtála was of course decided in the context of the Adoption Act 1974 The detailed provisions of the 1988 Act are specifically directed towards protecting the more powerful rights of the married parents under Article 41 However the provisions of the Act give equally effective protection to the rights of the unmarried parent while also taking into full account the constitutional rights of the child Mr Rogers laid great emphasis on the mother s statutory right to custody under the Guardianship of Infants Act 1964 Under that Act the unmarried mother as sole guardian is entitled to the custody of her child section 10 However this right to custody is by no means absolute Section 14 of the Act provides Where a parent of an infant applies to the Court for an order for the production of the infant and the Court is of opinion that that parent has abandoned or deserted the infant or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the infant the Court may in its discretion decline to make the order Section 16 provides Where a parent has a abandoned or deserted an infant or b allowed an infant to be brought up by another person at that person s expense or to be provided with assistance by a health authority under section 55 of the Health Act 1953 for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties the Court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the Court that he is a fit person to have the custody of the infant Section 55 of the Health Act 1953 was the provision then in force which permitted the taking of children into voluntary care by health boards this matter is now dealt with under the Child Care Act 1991 These sections which were not drawn to the attention of the Court in argument clearly mirror the constitutional provisions of Article 42 5 they refer both to married and unmarried parents While these sections refer to custody rather than adoption they are largely similar in intent to the criteria laid down in the 1988 Act In my view therefore the rights conferred by the Guardianship of Infants Act do not alter or add to the rights already possessed by P under Article 40 3 as mother of her child These rights are fully protected by the strict criteria set out in the 1988 Act I will now consider the specific criteria set out in section 3 of the Act of 1988 Section 3 1 I A Failure of Duty Section 3 1 I sets out a number of matters that must be established to the satisfaction of the Court Sub clause A provides That for a continuous period of not less then twelve months immediately preceding the time of the making of the application the parents of the child to whom the declaration under section 2 1 relates for physical or moral reasons have failed in their duty towards the child Finlay C J delivering the judgment of the Court on the Article 26 Reference to this Court of the Adoption No 2 Bill 1987 later enacted as the Adoption Act 1988 1989 IR 656 commented as follows on this sub clause at page 668 of the Report The first essential here provided is that for not less than twelve months the sole parent or each of the parents for physical or moral reasons have failed in their duty towards the child The most important element in this provision is the concept of failure which must be construed as being total in character No mere inadequacy of standard in the discharge of the parental duty would in the opinion of the Court suffice to establish this proof Furthermore the failure must arise for physical or moral reasons This does not mean that the failure must necessarily in every case be blameworthy but it does mean that a failure due to externally originating circumstances such as poverty would not constitute a failure within the meaning of the sub clause The learned trial judge having considered the evidence that was before him held that the notice party had so failed in her duty At page 26 of his judgment he concluded The inexorable weight of the evidence obliges the Court to find that P for physical reasons and not for moral reasons has totally failed in her duty towards J for a continuous period of not less than twelve months immediately preceding the making of this application This does not involve any finding of blameworthiness on her part The Court finds that this failure has not been due to externally originating circumstances such as poverty but is solely due to mental illness chronic severe depression and a mild impairment of mental function It was argued on behalf of the appellant that this conclusion was in error principally because it did not take into account P s access to her child and her exercise of her rights in this regard It must be borne in mind that the sub clause speaks of the performance of parental duties rather than the exercise of parental rights In my view Ms Clissman is correct in her submission that what is meant by parental duties is the normal day to day care of the child In G v An Bord Uchtála O Higgins C J at page 55 spoke of the relationship between the mother and her child thus As a mother she has the right to protect and care for and to have the custody of her infant child The existence of this right was recognised in the judgment of this Court in the State Nicolaou v An Bord Uchtála 1966 IR 567 This right is clearly based on the natural relationship which exists between a mother and child In my view it arises from the infant s total dependency and helplessness and from the mother s natural determination to protect and sustain her child How far and to what extent it survives as the child grows up is not a matter of concern in the present case While the Chief Justice is here speaking of rights his picture of the parental role is clearly one of actual physical care and protection Walsh J in the same case at page 67 of the Report spoke of the relationship between the mother in that case and her child The mother and her illegitimate child are human beings and each has the fundamental rights of every human being and the fundamental rights which spring from their relationship to each other These are natural rights It has already been decided by this Court in Nicolaou s case that among the mother s natural rights is the right to custody and care of her child Rights also have their corresponding obligations or duties The fact that a child is born out of lawful wedlock is a natural fact Such a child is just as entitled to be supported and reared by its parent or parents who are the one responsible for its birth as a child born in lawful wedlock One of the duties of a parent or parents be they married or not is to provide as best the parent or parents can for the welfare of the child and to ward off dangers to the health of the child Again Walsh J is clearly speaking of the actual day to day upbringing of the child In the instant case the learned trial judge had before him ample evidence to establish that on account of her disability P had been unable to fulfil her parental role not alone for the required twelve month period but for the entire of J s life He stressed that this inability was not blameworthy it was for what is described in both the statute and Article 42 5 as physical reasons I would concur with the trial judge in this case in holding that physical reasons must include both physical and mental disability To hold otherwise would be gravely unjust to those suffering from physical disability This question was considered by O Higgins J in Southern Health Board and M D and J D v An Bord Uchtála unreported 20th December 2001 where the mother s disability was mental rather than physical At page 16 of his judgment O Higgins J stated Ms Forde however submits that the phrase physical reasons should be interpreted sufficiently and broadly to take in the disability which exists in the present case and points out that it would be an anomaly if mental incapacity no matter how severe accounting for the failure of the parent in his or her duty towards the child would preclude the making of adoption orders in such cases other than on the grounds of moral failure I was referred to the case P W v A W and Others an unreported judgment of Ellis J dated 21st April 1980 where at page 72 of the judgment the following passage occurs I also hold that insofar as it was or is the duty of the parents and in the circumstances of this case the duty of A W to provide for the requirements of A specified in Article 42 1 or generally that A W has failed in such for physical reasons In my view the word physical as used in Article 42 5 need not include intentional or purposeful reasons and would include reasons of health and hence would and thus include the illness and all its detrimental effects and consequences already fully described which have combined to prevent and render her unfit or unable to carry out her required duty or duties towards A and hence to have failed in such respect In the case referred to Ellis J had found that the parent A W had suffered from ill health primarily on account of a mental disorder and psychiatric illness which required psychiatric care and treatment as an in patient in various hospitals in Dublin from time to time as well as medical treatment observations and assistance as a hospital out patient In the case before him where the circumstances were somewhat similar O Higgins J adopted the views of Ellis J Herbert J in the instant case held that the level of access of P to her child J was not sufficient to off set his finding of failure of parental duty P was he found more a visitor than a parent to J In my view this finding was sufficiently based on the evidence before him and should not be disturbed Section 3 1 I B Under this sub clause the Court must be satisfied that it is likely that such failure will continue without interruption until the child attains the age of eighteen years On the evidence it is quite clear that the situation which has obtained since J was placed in the care of Mr and Mrs H is unlikely to change P herself had expressed herself to be completely satisfied with the excellent care which Mr and Mrs H are giving to her daughter and wishes J to remain with them P s disability as such

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/a878487960cfe7b980256cc400335cf6?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • Hospital in Paddington was consistent with the account that she has given to the Court Were she to be involved in some sympathetic reconstruction to suit her own purposes I doubt that she would have done that at that stage As for the evidence of the bus driver that she told him that she fell because the heel came off her shoe I have no doubt that that is the bus driver s recollection of what happened and I have no doubt that he is not in any way trying to mislead the Court However it seems to me very likely that there was some mention of a heel of a shoe and I would not attach any significance to the fact that he took that message out of the conversation which on my view was not factually a correct account of how the accident happened So it seems to me that in the circumstances that the bus jerked off abruptly and that that was the primary cause of the accident in question Having determined the negligence in issue the learned trial judge then addressed the issue of contributory negligence He held The question of contributory negligence arises then While I feel that the plaintiff herself must take a share of the responsibility for the accident it is true that there is no embargo on people going up to the top of the bus and they are entitled to go up The evidence indeed of the driver is that people would in ordinary journies sic be going up the bus while the bus was moving and there are handrails provided but to do so with a small child on one s hip when it is not necessary to do so seems to me to be not what a prudent person would do To do so with a small child on the hip in circumstances where one had already noticed the jerky nature of the bus when moving off seems to me to amount to a considerable degree of contributory negligence I penalise the plaintiff in contributory negligence to 25 Having found that the defendant was negligent and that there was contributory negligence on the part of the plaintiff the trial judge apportioned the degrees of fault as to 75 to the defendant and 25 to the plaintiff The court assessed damages as follows Special Damages Loss of pension and gratuity 37 500 00 Loss of earnings for the future 25 000 00 General Damages Pain and suffering to date 70 000 00 Pain and suffering in the future 40 000 00 Total award 172 500 00 Thus in accordance with the apportionment determined the High Court ordered that the plaintiff should recover 129 375 00 being 75 per cent of the total award of 172 500 00 and the costs of the action 3 Appeal The defendant appealed against the judgment and order on the grounds that a That the learned High Court judge erred in his findings that the defendant was the prime cause of the accident the subject matter of these proceedings b That the learned High Court judge erred in his finding that there was 25 contributory negligence only by the plaintiff in light of her actions c That the learned High Court judge erred in his assessment of the appropriate damages that should be paid to the plaintiff as a result of the personal injuries suffered by the plaintiff in the accident the subject matter of these proceedings and by virtue of the deliberate exaggeration by the plaintiff of those injuries d That the learned High Court judge erred in his assessment of the appropriate damages for which the plaintiff should be entitled by reason of the future loss of pension earnings when there was insufficient evidence to support such an assessment 4 Evidence In this case there was oral documentary and video evidence before the High Court On the issue of liability the plaintiff s evidence was supported by two other passengers on the bus being Mr Trudy Conlon and Mr Paul McEvoy The only witness for the defendant on this issue was the bus driver The learned trial judge on the issue of liability accepted the evidence of the plaintiff it being corroborated by Ms Conlon As to the issue of damages it was agreed between the parties that the reports of the treating specialists and doctors from the United Kingdom would be received into evidence in substitution for viva voce evidence Thus reports were admitted into evidence from Mr Richard Hampton F R C S dated the 27th June 1996 Mr R Sinnerton F R C S dated August 1998 Mr M Roberts Consultant Orthopaedic Surgeon dated the 20th November 1997 and Mr M Y Zakaria Locum Consultant Orthopaedic Surgeon dated the 3rd March 1999 Viva voce evidence was given on behalf of the plaintiff on the issue of quantum by Mr Eric Kersey who was Payroll and Pensions Manager with the plaintiff s employers by Mr Alan Dodds a rehabilitation consultant and Mr Peter Delaney an actuary No medical evidence was called by the respondent The defendant called only one witness on the issue of quantum and that was Mrs May Feeley a rehabilitation consultant However by agreement the defendant introduced into evidence a video film of the plaintiff showing her engaged in activities Thus in this case this appellate court is in the same position as the trial judge in relation to the evidence from the medical reports and the video evidence 5 Exaggeration The learned trial judge found that the plaintiff had deliberately exaggerated some of her symptoms He held However I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time In particular I have to say that what was evident to the Court on the video tape was at variance at least with the general picture of her disability that the plaintiff offered to the Court As for her explanation that this was a combination of a good day and emergency the Court is unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the plaintiff s evidence about the emergency because of the removing of the items from her father in law s house was singularly unconvincing to the Court So the plaintiff s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court This finding of deliberate exaggeration by the learned trial judge is at the core of the defendant s case The issue of exaggeration by a plaintiff in court proceedings is not new It may arise in different ways in different cases There are many possible circumstances Three of these are as follows First there is the case where the whole claim is concocted The accident did not happen or did not happen as claimed This is a fraudulent claim and will be dismissed by the trial judge Secondly there is the situation where there is a genuine claim but the effect of the injuries is exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have This type of approach involves no conscious lying by a claimant The trial judge would determine the value of the damage suffered in accordance with the evidence but would not condemn the evidence of the plaintiff A third scenario exists where there is a genuine case made establishing negligence but the plaintiff deliberately exaggerates the injuries knowing that he or she is exaggerating the injuries and their effects This may take on the appearance of a fraudulent claim The lies of the plaintiff are apparent to the judge It is at this stage that the trial judge who has heard all the evidence and seen the witnesses must exercise his or her judicial discretion At issue is the credibility of the witness If the credibility is so undermined that the burden of proving the claim has not been met then the trial judge will dismiss the claim However to achieve a fair result in all the circumstances the trial judge may assess the credibility of the witness in light of the evidence of other witnesses It may be that the negligence of the defendant is established but that the evidence of the plaintiff as to the injuries or some of the injuries may not be credible This may arise in circumstances where injuries are not easily assessed objectively but great reliance has to be made on the evidence of the plaintiff for example in soft tissue injuries The evidence of a plaintiff is critical In a situation where the plaintiff has told a mixture of the truth and lies his or her credibility is completely undermined It is for the plaintiff to prove his or her case on the balance of probabilities It may be that the deliberate exaggeration is such that the credibility of the witness is called into doubt and the burden of proof is not carried Consequently the plaintiff will not succeed in proving the claim to which such deliberate exaggeration applies This principle has been stated recently in Vesey v Bus Éireann 2001 I R 192 where it was held that it was not the responsibility of a trial judge to disentangle the plaintiff s case where it had become entangled as a result of lies and misrepresentations systematically made by the plaintiff For the trial judge to make on behalf of the plaintiff the best case he could in such circumstances would risk a perception of bias In this case the medical evidence was in admitted medical reports The learned trial judge held as regard the injuries as follows Following the accident the plaintiff was taken to Loughlinstown Hospital where she received an injection x rays and tubigrip bandage was applied A tentative diagnosis of ligamentous injury was made and she returned to the wedding reception She returned to London the following day and she was in considerable pain Approximately a week later she received a letter saying that there was a possibility that the injury was more than the ligamentous damage which had been previously thought and advising her to see a specialist The plaintiff was seen in a fracture clinic on 4th October 1995 and it was recorded that she had sustained a depressed fracture of the right tibial platter She was admitted to hospital that day under the care of Mr Hunt with a view to operative reduction and fixation of the fracture On 10th October 1995 the plaintiff underwent the operation on right knee arthroscopy and elevation of the lateral tibial platter with bone grafting and external fixation At the operation the depressed lateral tibial platter was elevated and the defect in the cancerous sic bone was grafted using a bone graft taken from the right iliac crest of the plaintiff Fixation was provided by a laterally placed T shaped buttress plate with screws attached There was a long protrudial peripheral scar on the lateral meniscus which did not require surgical intervention Post operatively she received continuous passive movement in order to prevent knee stiffness It is recorded in the report of 27nd sic June that she made an uneventful recovery She was mobilised with crutches and she described of having to use the crutches for a period of nearly a year She described a heavy casing that was imposed on her for sometime as well Also I have to say that she is left as a result of the operation and the subsequent operation to remove the metal from the knee with what has to be considered an ugly and unpleasant scar On 13th November 1995 it was recorded that she was making good progress On 28th February it was recorded that she was fully weight bearing with occasional need of help from crutches The range of movement in her knee from full flexion to 90 degrees At that stage when reviewed in the clinic 6 months after the operation it was considered that she had made a good result following her knee injury but further examination was required I have had the benefit of that report which is 27th June 1996 The next report was in November 1997 that of Mr Roberts the consultant orthopaedic surgeon dated 20th November 1997 That stated that the plaintiff s complaint was of a constant intermittent general ache around the right knee which became painful at times the joint swelling periodically She complained of pain for standing in excess of 15 minutes and walking in excess of 100 yards was impossible without a rest She carried a walking stick continuously outdoors At that stage it was considered that she had made a very good recovery but the general changes are present The report say sic that at the moment these are not gross but progression over the years is likely After the metalwear has been removed some of the pain will resolve Indeed the plaintiff gave evidence to the Court that some hotness which was associated with the metal plate was absent after that It is recorded there that the osteoarthritis is not gross but she is significantly limited in her ability to function normally The next report is undated but received by Bruce St John Blake Limited the then solicitors for the plaintiff in August 1998 That is the report compiled from the notes which I accept as being accurate by Mr Sinnerton consultant surgeon He says she was seen for a final time in June 1996 at which point it was recorded that the result was excellent She was walking without a stick with no significant pain and had a full range of movement of the knee The wound had completely settled and the patient was reported as being extremely happily sic with the result X rays showed a united fracture It was not thought that there was any indication for removing the metalwork unless it was for a specific reason or strong desire from the plaintiff At that stage the opinion was that she had suffered a very significant injury to right knee a fracture of the lateral tibial platter damaging the articular surface on the side but it was reconstructed well The operation notes record central defect and the articular surface of the operation At that stage there was a prognosis as to the likelihood of arthritis that is sic prognosis is irrelevant now as it is common case that the lady has arthritic condition in the knee This then was the medical evidence from the reports It described a significant injury with an excellent result but for arthritis However the plaintiff claims differently It is at this stage of the case that the evidence of the plaintiff and the video evidence are in conflict and are relevant together with the medical reports The learned trial judge held However the plaintiff disputes the finding that the result was excellent at the time She disputes that she was walking without a stick In relation to no significant pain she says it depends what you mean by significant I am ready to accept that subjective and objective assessments of pain are different However I have to say that in her evidence overall I am bound to say that I found that the plaintiff was exaggerating her symptoms from time to time In particular I have to say that what was evident to the Court on the video tape was at variance at lease with the general picture of her disability that the plaintiff offered to the Court As for her explanation that this was a combination of a good day and emergency the Court is unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the plaintiff s evidence about the emergency because of the removing of the items from her father in law s house was singularly unconvincing to the Court So the plaintiff s case is more difficult to evaluate because of the factor that the Court has found that she deliberately exaggerated some of her symptoms to the Court However there is no doubt that she had a significant injury There is no doubt as well that while she complained of ache afterwards she said that it was a pain pain on a daily basis the Court simply does not accept the evidence of the plaintiff that she is unable to go about her business without a walking stick Nor does the Court accept that the plaintiff is unable to drive a car for any distance of time The Court also does not accept that the plaintiff has made all reasonable efforts to obtain further employment and to get back into the workforce However apart from the nasty injury she sustained the Court accepts without reservation that the plaintiff was depressed and upset and demoralised following and as a result of the accident She suffered a real depression and diminution in the quality and enjoyment of her life However I do not accept that she is not in a position to go back to gainful employment I do not accept that she will have any huge difficulties getting that employment However I have to say that it is actually common case but that her job prospect and her career prospects are diminished by the following factors 1 Undoubtedly by her age which I think will come against her 2 By the fact that she has been out of the workforce for a number

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/a2b25ed10b01b7e280256cc4003393a0?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • that the Plaintiff called the evidence of an actuary and of a person from her former employers to give evidence of her pension entitlements at various ages The letter of the 26th June 2001 28 This was the letter referred to above in which the Plaintiff claimed a total of 412 318 37 in respect of loss of earnings These were plainly calculated on the basis that she would be at a total loss of earnings from now until her expected retirement date Only social welfare payments were contemplated in a reduction of this figure insofar as these payments were legally reckonable Cross examination and video evidence 29 It transpired in the course of cross examination that on the 24th September 2001 exactly a month before the trial in the High Court the Plaintiff had been observed by an investigator retained by the Defendant over a considerable period of time and a video tape of her movements over much of that day was made This video tape was played in the High Court and again in this Court It shows the Plaintiff generally in the company of other persons especially her father in law and sister in law walking on the public street crossing the road to a restaurant getting in and out of a car walking up and down a sloping drive while carrying items in one hand and in two hands holding a child in one arm at hip level and playing with two boxer dogs 30 The video commenced when the Plaintiff was returning from the premises of a consultant employed by the Defendants She was driven to this meeting by her father in law and brought her stick along For the bulk of the time which the Plaintiff is in shot she is not using the stick at all When she has a stick in her hand as in crossing the road to a restaurant she appears to be trailing it rather than leaning on it Her movements in walking on the street in reeling in some form of wire or line and in crossing the road with her father in law after doing so appear natural and unhindered despite the fact that she is not using a stick She does not show undue difficulty getting into or out of a car Her counsel conceded that the video tape did not give the impression of a woman who is disabled or impaired High Court findings on the above 31 The learned trial judge having set out the substance of the 1998 medical report quoted above remarked that subjective and objective assessments of pain might be different He continued However I have to say that in her evidence overall I am bound to say that I found that the Plaintiff was exaggerating her symptoms from time to time In particular I have to say that what was evident to the Court on the video tape was at variance at least to the general picture of her disability than the Plaintiff offered to the Court As for her explanation that this was a combination of a good day and emergency the Court was unable to accept that as being a full explanation of the discrepancy particularly in view of the fact that while the question of the fallen or the would be fallen electric wires could indeed be thought to constitute an emergency the Plaintiff s evidence about the emergency because of the removal of the items from her father in law s house was singularly unconvincing to the Court So the Plaintiff s case is more difficult to evaluate because of the fact that the Court has found that she deliberately exaggerated some of her symptoms to the Court 32 This Court has no doubt whatever that the learned trial judge was correct in this assessment and indeed that his findings are conservatively phrased The Plaintiff told a number of deliberate falsehoods in relation to her symptoms and capacities In particular she appears to have realised that her reference to having her daughter in her arm was inconsistent with the general picture painted retracted it and said that she could not lift her or any child The picture painted in her evidence of gravely limiting and continuous impairment is false Her statements not summarised above about her grave difficulty in driving a car and doing so only occasionally for distances such as 2½ miles are inconsistent with the fact that in relatively straitened financial circumstances the family consisting of two adults and one child maintains two cars She admitted this with difficulty and reluctance 33 The Plaintiff s manifest falsehoods and the overall impression of her performance on the video tape give rise to a considerable difficulty As the learned trial judge said the assessment of her case is more difficult because of her deliberate exaggerations This Court has previously held in Patrick Vesey v Bus Eireann Irish Bus Supreme Court unreported 13th November 2001 that it is not the responsibility of a trial judge to disentangle the Plaintiff s case when it has become entangled as a result of lies and misrepresentations systematically by the Plaintiff himself The reason for this is that The procedure in our courts is an adversarial one and the Defendant is entitled to have the Plaintiff s case presented by him and accepted on its merits or otherwise as these appear from the Plaintiff s presentation and cross examination For the trial judge to make on behalf of the Plaintiff the best case he can in such circumstances would risk the loss of the appearance of impartiality 34 It must also be noted that the Plaintiff s falsehoods did not simply relate to her medical condition and capacity but extended to a false explanation to do with the level of excitement or emergency caused by the necessity to move her father in law s goods This is quite inconsistent with the leisurely activity shown on the video during which the Plaintiff holds the child for an appreciable period stands chatting to her father in law and other bystanders and plays with two large boxer dogs This explanation was quite rightly rejected by the learned trial judge The loss of earnings claim 35 Notwithstanding the findings summarised above the learned trial Judge made an award of damages in respect of loss of earnings to age 60 He did so on the basis of taking the capitalised loss of earnings as a sum of 99 600 00 He then reduced it saying First of all as I have said she is able to work Secondly there is no way of knowing what pensionable employment she will take on Thirdly these are by their nature actuarial exercises and can be quite divorced from reality I would have thought however that she would be entitled to 30 of that figure being 30 000 sterling Likewise in relation to a loss of 372 which I am told is the correct figure for the loss of 1 a week I do not know what loss of earnings this woman is going to have but I have no doubt that a as I have already indicated that she will be in a position to work and b I have no doubt that her earning capacity is diminished because of the factors agreed to on both sides and the extra factor of her age which is given in evidence by one side but not accepted by the other 36 Further on this topic the learned trial judge held I do not accept that she is not in a position to go back to gainful employment I do not accept that she will have any huge difficulties in getting that employment 37 The learned trial judge also held that on the balance of probabilities he believed the Plaintiff would have retired at the age of sixty rather than sixty five Observations on the foregoing 38 It is clear from the foregoing that the Plaintiff presented her case in court through the information she supplied to her own consultant Dr Dodds and in the particulars of special damage which she delivered on the 26th June 2001 on the basis that she would be at a total loss of the earnings she would otherwise have had until the date of her retirement and that this was a result of the accident In the letter referred to she specifically mentioned only the social security in diminution of this loss Any other earnings to which on her own evidence she might aspire would be extremely small 39 It is equally clear that this picture is a false one She is capable of working Work of a sort she can do is available in Wales and even more so elsewhere In pretending to be unable for any significant work the Plaintiff is guilty of serious falsehood 40 Obviously the position of the Plaintiff and her legal advisers after the video tape was played was one of some embarrassment It appeared quite inconsistent with the picture the Plaintiff had painted of herself and with the claim she had made Certain particular arguments were advanced to this Court in that context These focussed on the claim for loss of earnings for the entire of her working life advanced in the letter already referred to several times 41 Specifically it was argued a That this letter should not be interpreted as a statement of the Plaintiff s quantified future loss which she intended to claim as an entitlement from the Defendant On the contrary it should be regarded simply as reflecting the fact that the Plaintiff believed she would never be able to work again and rightly or wrongly attributed this to the accident She had incurred the specified loss in her own mind b It was submitted that the contents of the letter even literally construed should not be attributed to the Plaintiff as a claim advanced by her The basis for this submission was that the letter was the work of other persons These other persons were her solicitors who presumably arrived at the actual sum specified with the input of her former employers and other advisers It was said that the Plaintiff is not responsible for the particulars delivered c It was suggested that even if the letter quoted was to be regarded as advancing a claim for the amounts specified that claim had been resiled from at trial It was said that claims are often made in pleadings which are not supported in evidence 42 I can see no merit whatever in any of these contentions 43 It is quite untenable to regard the mention of the sum of 412 318 37 described as special damages and divided into loss of earnings to date and future loss of earnings to date of retirement and transmitted in a solicitor s letter beginning Please note that the Plaintiff claims the items of special damage as set out hereunder as anything but a claim to that sum It is impossible to accept that it is merely an impressionistic statement of the Plaintiff s sincere but ill founded expectation Firstly it is quantified to the last penny secondly the Plaintiff impresses from the transcript as an intelligent woman quite able to understand what she was and was not entitled to and thirdly even if she had any misapprehensions on that score they would hardly have survived consultation with her solicitor The term Special Damages has a very precise meaning which it has borne for well upwards of a hundred years In Ratcliffe v Evans 1892 2 QB 424 special damages were described as that particular damage beyond the general damage which results from the particular circumstances of the case and of the Plaintiff s claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial 44 It is impossible to read the letter of the 26th June 2001 as anything other than a statement that the Plaintiff had lost the very large sum mentioned in respect of loss of earnings alone 45 I would entirely reject the submission that the letter mentioned is not the Plaintiff s letter and is not to be attributed to her I was surprised to hear the submission made In another recent case of serious dishonesty in the making of a personal injuries claim Vesey v Bus Eireann Irish Bus Supreme Court unreported 13th November 2001 the same submissions was strongly deprecated as follows I would specifically deprecate the submission made that particulars in another action should be disregarded or regarded with less seriousness on the basis that everybody knows that they are not drafted by the Plaintiff personally It is quite true that in providing the particulars which a defendant is entitled to require a plaintiff may rely on the advice of his lawyers doctors engineers and other professionals But none of these professional advisers are responsible for the factual content of the replies These replies are the Plaintiff s document for which he is personally responsible it is essential and as far as I know is the general practice that a plaintiff s solicitor should carefully go through with him replies to particulars in the form in which it is proposed to send them to the Defendant and obtain his assent 46 I would repeat what was said in Vesey with even more emphasis in this case It is inappropriate to contend that the particulars of the Plaintiff s claim are not to be attributed to the Plaintiff himself or herself It is very much to be hoped that no such submission will be made in the future The claiming of a very large sum of money from a Defendant is a serious matter and most Plaintiffs will know this quite well It is in any event the responsibility of a solicitor to ensure that the Plaintiff is fully aware of the significance and indeed solemnity of advancing a claim for hundreds of thousands of pounds or a lesser sum before the claim is presented to the Defendant not to speak of the Court 47 I have already quoted what was said in court during the opening of this Plaintiff s case in relation to loss of earnings into the future It was emphatically not the case that the Plaintiff resiled from any such claim Counsel stated that it might be accommodated in general damages rather than special damages An actuary was called by the Plaintiff who learnedly discussed the appropriate rate of return to be used by actuaries in order to determine an appropriate multiplier This related to a claim that she would enjoy a reduced pension by reason of ceasing work as a result of the accident The most that can possibly be said is that the itemised claim was not persisted in but the Plaintiff stoutly maintained a claim to future loss to retirement age In relation to the amount of it she was prepared to take as much as she could get The Plaintiff on several occasions attempted to describe or have described at the trial the basis of her former employers acceptance of the proposition that she was unfit for work The doctor who assessed her for this purpose was not called nor was any report from him or her tendered The fact that the former employers may have accepted the proposition that the Plaintiff was permanently unfit for work could not of course be determinative of the Defendant s liability in this regard If this practitioner were called he or she would undoubtedly have been asked to comment on the Plaintiff s state of mobility as seen from the video tape 48 It was also a feature of the Plaintiff s claim that as a result of her injuries she was unable to complete a one night per week course which would have enhanced her earnings But neither on the basis of her own 1998 report nor of her capacity as seen from the video tape could this claim be accepted Difficulty in assessment 49 The Plaintiff undoubtedly suffered a major loss of credibility in the course of the trial This was not disputed on the hearing of the appeal when it was specifically conceded that the learned trial judge was satisfied that video evidence furnished to the Court was at variance with the Plaintiff s account of her disability and he rejected the Respondent s explanation for discrepancies arising out of such evidence It was however submitted that the Plaintiff s deliberate exaggeration related solely to her description of the effect of her injuries It was submitted that if a lie is told in the course of the prosecution of a claim for damages for personal injuries that fact affects only the narrow aspect of the case to which the lie specifically relates It was further submitted that a case such as this of deliberate exaggeration of the effects of the injuries is different in degree from a wholly invented injury Thus while it was conceded that the video tape would make one regard some of the Plaintiff s earlier descriptions as suspect or exaggerated it should not be regarded as wholly undermining her credibility or undermining it in relation to unconnected aspects of the case 50 It was further submitted that the learned trial judge had given all proper weight to the very serious difficulties in credibility which the Plaintiff encountered as a result of her own deliberate falsehoods He had very significantly discounted her claim in relation to special damages This was an adequate reflection of what had happened at the trial It was submitted that even if at the 11th or 12th hour the full extent of the claim intimated in the letter giving particulars and the report of Dr Dodds had been resiled from 51 I cannot accept the latter submission It is noteworthy that at

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/7ad9f8c34d825eec80256cc40033c07b?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • used for electoral purposes following the dissolution of the Dáil He also said that it was common practice for the outgoing members to stockpile such pre paid envelopes for the purposes of using them for electoral purposes during the course of an election campaign While he had no complaint in relation to the use by outgoing members of those facilities and resources he did take issue with the fact that the outgoing members were exempted from including the cost of such resources in the list of returnable expenses under the legislation In a replying affidavit by Mr Peter Greene a principal officer in the department of the first named respondent there was exhibited a letter from the Clerk of the Dáil addressed to each member concerning the effect of a dissolution of Dáil Eireann on their entitlement and facilities under the legislation already summarised It stated that secretarial assistance employed on a contract basis would be paid up to and including polling day and under the heading Leinster House Complex said As has been the long standing established practice following the dissolution the Leinster House complex will remain open to facilitate the orderly wind down of public representational activities There were also affidavits before the High Court from Professor Richard Sinnott of the Department of Politics and Institute for the Study of Social Change in University College Dublin and Professor Michael Marsh Associate Professor of Political Science and Head of the Department of Political Science in Trinity College Dublin These dealt in considerable detail with the alleged advantages accruing to outgoing Dáil Deputies and Senators in contesting elections and the effect in electoral terms if any of their being exempted from a requirement to include the expenses in question in the returns of expenses incurred by them However having regard to the manner in which the appeal was dealt with in this court it is unnecessary in the view of the court for them to be referred to any further The Judgment in the High Court In his careful and comprehensive judgment the learned High Court judge McKechnie J having summarised the relevant legislation the evidence on affidavit and the contentions on behalf of the parties rejected a submission on behalf of the respondents appellants that in conformity with well settled rules of statutory construction the impugned provisions of the 1997 Act could be construed in a constitutional manner so as not to afford any exemption in respect of the facilities in question The trial judge said that he was satisfied that such a construction was not reasonably open and that the Oireachtas had intended to exempt the expenditure in question from the categories of election expenses which candidates were required to return The trial judge went on to find that in the light of the authorities and in particular the decision of this court in McKenna v An Taoiseach and Others No 2 1995 2IR 10 the provisions in question must be regarded as constituting unequal treatment of candidates and that no justification had been or could be offered for such discrimination The trial judge accordingly granted a declaration in the following terms THE COURT DOTH DECLARE that paragraph 2 a of the Schedule to the 1997 Act insofar as it exempts from the provisions of the Act restricting electoral expenses those electoral expenses within the terms of S 22 2 b ii of the Act of any person who is a member of either House of the Oireachtas or who is a representative in the European Parliament is invalid having regard to the provisions of the Constitution and THE COURT DOTH DECLARE that paragraph 2 c of the Schedule to the 1997 Act is invalid having regard to the provisions of the Constitution The judgment and order of the High Court were given before the holding of the General Election Following that election the Oireachtas enacted the Electoral Amendment No 2 Act 2002 S 1 of which extended the time for returning the statements as to electoral expenses required by S 26 of the 1997 Act by a period of 167 days following the polling day or the 21 days next following the date of pronouncement by this court of its decision on this appeal whichever was the longer Submissions on behalf of the Parties Mr Eoghan Fitzsimons SC on behalf of the respondents appellants accepted that if the construction adopted by the learned High Court judge of the impugned provisions of the 1997 Act was correct it followed that unequal treatment was being unjustifiably afforded to candidates and that this was invalid having regard to the provision of the Constitution and the authorities referred to in the judgment of the trial judge Mr Fitzsimons submitted however that the construction adopted by the trial judge was not correct He said these provisions having been enacted by the Oireachtas were entitled to the benefit of the presumption of constitutionality as a result of which the relevant provisions are presumed to be constitutional unless repugnancy to the Constitution is clearly established citing the decision of the former Supreme Court in In Re Article 26 and the Offences Against the State Amendment Bill 1940 IR 470 He further submitted that in accordance with the decision of this court in McDonald v Bord na gCon and Another 1965 IR 217 if in respect of these provisions two or more constructions were reasonably open one of which was constitutional and the other unconstitutional it must be presumed that the Oireachtas intended only the constitutional construction Mr Fitzsimons submitted that the Oireachtas in enacting these provisions must be presumed to have been aware that the allowances and expenses which were afforded to outgoing members of the Oireachtas and MEPs exclusively for the performance of their duties as public representatives could not properly be used by them for the purpose of an election campaign following the dissolution of the Dáil It followed that the Oireachtas could not have intended expenditure of this nature to be

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/8f9609237b58153e80256cc40033ddab?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • defect omission or variance in the summons charge or information upon which the same shall purport to have been made provided that such defect omission or variance shall not have misled or prejudiced the Defendant or have affected the merits of the case and the justice or justices at the original hearing or any court of appeal or superior court before whom the appeal of any such justice or justices shall afterwards come may upon such terms as shall appear just make any amendment in any summons charge or information which shall appear to be requisite for the purpose of making the conviction or order conformable with the same or of raising the real question at issue and deciding the case as justice shall require There is no doubt that the section confers wide powers of amendment somewhat analogous to the relevant District Court rules But in my view it can only come into play in a case where the Appellant was tried in the District Court for the offence for which he appears to have been convicted by reference to the Order If the Defendant was tried for a nonexistent offence he cannot have a conviction entered against him in respect of an existing offence If that happens this will be a matter of legitimate defence on the District Court appeal and it cannot be cured by amendment If on the other hand notwithstanding what may have been contained in documentation such as the application for the summons or the summons itself the Defendant was in fact tried in the District Court for an existing offence then if the Defendant goes the route of appeal rather than judicial review the Circuit Court judge can cure any defects in the documentation by virtue of section 76 unless an injustice would ensue One view of this case which was partly mooted by counsel for the D P P might be that the Circuit Court judge should not go behind the order appealed against and should therefore embark only on a hearing of the charge as set out in the order Such an approach would be consistent at least with the view taken by the Circuit Court Rules Committee in 1950 Under Order 43 of the original Circuit Court Rules in the case of a District Court appeal an originating summons was transmitted to the County Registrar only in civil cases It is quite deliberately omitted from the list of documents to be transmitted in criminal charges Many years later the rule was amended to include the summons The amendment reflected the view of some Circuit Court judges at least that the terms of a summons could be relevant to a determination of a District Court appeal in a criminal case In my view any doubts on this matter were removed by the judgment of this Court delivered by Finlay C J in the D P P Nagle v Flynn 1987 IR 534 Strictly speaking that was a judgment dealing with the six months time limit and when the period might stop But it is also in my view clear support for the view that the Court can go behind the order At page 530 of the report the following passage of the judgment of the court delivered by Finlay C J appears With regard to question c the position appears to me to be as follows There can be in my view no doubt as to the jurisdiction of the learned Circuit Court judge to hear the appeals which are brought before him An order has been made in the District Court which on the face of it is valid and the penalties imposed are penalties within the jurisdiction of that Court The Circuit Court judge therefore has jurisdiction to hear the appeal but cannot exclude upon the hearing of that appeal an issue raised by the Defendant that the prosecution had failed to prove a valid complaint so as to ground a charge made within the time limited and that therefore the prosecution must fail It would seem equally to follow from the nature of the appeal by way of re hearing as referred to in that judgment that the case can be made that the Defendant has been convicted of an offence for which he was not charged or tried The raising of such defence however must always be signposted to the prosecution and for this reason I think that it was appropriate that the matter should have been raised at the commencement of the hearing of the District Court appeal But surprisingly the State Solicitor merely asked for an amendment It is not clear whether the particular State Solicitor had prosecuted the matter in the District Court or not Normally such a prosecution would be carried out by a member of the Gardai However from another part of the case stated which I have not cited it is clear that there was a preliminary point raised also about the spelling of the Defendant s name and in that instance Mr O Sullivan was immediately able to explain to the Circuit Court judge that an amendment had been made by the District Court judge That may suggest that Mr O Sullivan was present in the District Court He certainly does not appear to have made any submission to the effect that the District Court judge adverted to the error in the summons and either amended it or decided to proceed without amendment on what would have been the correct charge One can easily envisage a situation where a State Solicitor would thereupon request an adjournment to ascertain what exactly happened in the District Court with a view to adducing evidence on it if necessary The conduct and outcome of the District Court appeal may be affected by what in fact happened in the District Court In this particular case for instance there are several possibilities 1 The District Justice may never have noticed the error and may not have

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/ab620fc773ec071f80256cc300413b1f?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • few days before the letter of the 26th November 1998 when its Managing Director was verbally notified by the Corporation s law agent of the intention to issue the Third Party Notice 6 The First Named Third Party contends that the spot where the accident occurred is in charge of the Defendant It also says that the fence was removed and replaced in its entirety between the date of the accident and an unknown date in 1995 following an incident in which a car crashed into it The Defendant denies this The Law 7 This application is based on the proposition that the First Named Third Party as occupier of its premises is a concurrent wrongdoer with the Defendant either jointly with the Second Named Third Party or individually Though the term concurrent wrongdoer is not used this basis of the claim seems to emerge clearly from paragraph 4 of the Third Party Statement of Claim dated the 9th August 1999 This being so the entitlement to issue and serve a Third Party Notice is governed by Section 27 1 of the Civil Liability Act 1961 which provides as follows 1 A concurrent wrongdoer who is sued for damages or for contribution and wishes to make a claim for contribution under this part a b shall if the said person is not already a party to the action serve a Third Party Notice upon such person as soon as is reasonably possible and having served such notice he shall not be entitled to claim contribution except under the Third Party procedure If such third party notice is not served as aforesaid the Court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed Emphasis added 8 Furthermore Order 16 of the Rules of the Superior Courts provides at Rule 1 iii Application for leave to issue the Third Party Notice shall unless otherwise ordered by the Court be made within 28 days of the time limited for delivering the defence or where the application is made by the Defendant to a counterclaim the reply 9 I agree with the remarks of Kelly J in SFL Engineering Ltd v Smyth Cladding Systems Ltd High Court unreported 9th May 1997 as follows This provision of the Rules gives expression in a concrete form to the temporal imperative contained in Section 27 1 b of the 1961 Act It is to be noted that the Rules of Court require the application to be made not within 28 days from the delivery of the defence in the proceedings but within 28 days from the time limited for delivering the defence 10 It is also to be noted that under Order 16 Rule 8 3 Third Party proceedings may at any time be set aside by the Court This is the jurisdiction which is invoked on the present application 11 In The Board of Governors of St Lawrences Hospital v Staunton 1990 2 IR 31 the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/03edb977953be66a80256cc30044f30a?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • held on Friday 17th May 2002 In accordance with the legislative provisions nominations for that election closed at 12 00 am on the morning of Friday 3rd May 2002 As the candidature of the applicant was not authenticated by a certificate of political affiliation as required by s 46 of the Act of 1992 as inserted by the Act of 2002 he was required under the terms of the Act to have his nomination paper assented to by 30 persons registered as Dáil electors in the constituency for which he proposed to stand for election The applicant did not procure the assents aforesaid It appears that on Wednesday the 1st May 2002 the applicant submitted his nomination paper without such assents to the returning officer of the Limerick East Dáil election constituency and that such nomination paper was rejected as being invalid by the returning officer on tbe grounds that the minimum number of assents had not been obtained therefor By order of the High Court dated the 30th April 2002 McKechnie J gave liberty to apply to the High Court by way of an application for judicial review for first a series of declarations that the provisions of the Electoral Act 1992 as amended by the Electoral Amendment Act 2002 were repugnant to the Constitution and secondly for an injunction in the following terms An order requiring the returning officer of the constituency of Limerick East to accept the nomination paper of Denis Riordan citizen of Ireland as a candidate for election to Dáil Eireann in the general election taking place on Friday the 17th day of May 2002 subject to the nomination paper meeting the requirements of subsections 1 b and subsections 2 to 7 inclusive of s 52 of the Electoral Act 1992 as amended by the Electoral Amendment Act 2002 4 The matter came on for hearing before Kearns J on the 2nd May 2002 For the reasons set out in an ex tempore judgment delivered on that date the learned trial judge refused the application for an injunction adjourned the matter to the next judicial review list to fix dates and reserved the costs of the application From that judgment and order the applicant appealed to this Court by way of notice of motion dated the 7th May 2002 5 On the 10th May 2002 this Court dismissed the appeal by the applicant and refused the injunctive relief sought by him It was then indicated that the Court would give its reasons for its decision this term 6 First it must be emphasised that the contention of the applicant that various sections of the Electoral Amendment Act 2002 are repugnant to the Constitution has not been judicially determined That matter is still outstanding and may be pursued in the High Court in whatever manner may be appropriate Secondly it must be recognised that the granting of a mandatory injunction on an interlocutory application is exceptional though not unknown Thirdly subject to the recognition of the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/70b176d8e160210480256cc30044be65?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive