CLINICAL TIMES
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Medico-legal advice
Negligence: how to defend a claim for damages
John Savage of Beauchamps Solicitors looks at a High Court
case which brought the issue of negligence under the spotlight
once again
T
o prove a claim for negligence, it is important
that the person claiming negligence (the
claimant) links the negligent
act to the injury suffered. This
was shown in the recent case of
Ward v Sheridan and Christine
Quinn ([2010] IEHC 308).
To prove negligence, you
must satisfy the following
three requirements:
1. There must be a duty of care
between the claimant and
the defendant. For example, all medical practitioners
owe a duty of care to their
patients;
2.That duty of care must be
breached — this is a failure
by the defendant to take the
care which can reasonably
be expected in the circumstances; and
3.The damage or injury suffered by the claimant must
be caused by that failure.
It is not sufficient for the
claimant to only prove that
the defendant was negligent:
a causal connection between
that negligence and the
claimant’s injury has to be
established on the balance of
probabilities.
The Courts apply this standard test to different factual
circumstances, including road
accidents, medical treatments
and workplace accidents.
The claimant must prove the
above elements ‘on the balance
of probabilities’ in order to win
their claim for damages. ‘On
the balance of probabilities’ is
the standard of proof a Court
uses in civil cases to decide
whether there is sufficient
evidence to find that there was
negligence.
If, at the conclusion of the
evidence in a case, the probabilities are equal, then the
required standard of proof has
not been achieved. This means
that if it is more likely than not
that the fact alleged is true,
the standard has been met and
the claimant wins the case. In
criminal cases, the standard of
proof is far higher, since facts
have to be proven ‘beyond reasonable doubt’.
The Ward case
Gráinne Ward was seriously
injured in a road traffic accident because of the negligence
of the drivers of two other cars.
After the accident, she became
pregnant and her medical
consultant told her of the difficulties which the pregnancy
would create for her in light of
the physical injuries she suffered in the accident.
She decided to travel to
England to have her pregnancy terminated. She was
advised that any further pregnancies could be a danger to
her health, both physical and
mental. In light of this, her
husband Patrick Ward had a
vasectomy.
Gráinne Ward was compensated separately for her
injuries. This case was taken
by Patrick Ward, who claimed
damages against the drivers of
the two other cars in his wife’s
accident for having to undergo a vasectomy as well as for
mental distress, depression,
grief and anguish as a result
of the vasectomy and the termination of his wife’s pregnancy. He was not in the car at
the time of her accident.
The issues for the Court to
decide were whether Ward
was entitled to recover damages for his decision to have
a vasectomy and whether he
should be compensated for
his mental distress caused by
the termination of his wife’s
pregnancy.
High Court decision
The High Court decided that
Patrick Ward had elected to
have a vasectomy, despite the
fact that the couple had other
contraception options — he had
decided to undergo the procedure since he wished to “take
more responsibility”. Gráinne
Ward had been advised by her
doctor about the possibility of
undergoing tubal ligation. This
meant that Ward had failed on
the balance of probabilities to
establish a causal link between
having the procedure and his
wife’s accident.
The Court also decided
that there was no causal link
between his mental distress
caused by the termination of
her pregnancy and his wife’s
car accident.
Since there was no causal
link established, his case was
dismissed and no damages
were awarded.
l John Savage is a Partner
at Beauchamps Solicitors.
Contact:
j.savage@beauchamps.ie
● An Appreciation
22 | Irish Medical Times
21.01.11