Morrissey & anor v Health Service Executive & ors [2020] IESC 6 (19 March 2020)

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THE SUPREME COURT
**Please note this judgment is subject to signature and formal
approval**
[Appeal Nos: 2019/120,
2019/121 and 2019/122]
Clarke C.J.
O’Donnell J.
McKechnie J.
Dunne J.
O’Malley J.
Between/
Ruth Morrissey and Paul Morrissey
Plaintiffs/Respondents
and
Health Service Executive, Quest Diagnostics Incorporated and
Medlab Pathology Limited
Defendants/Appellants
Judgment of Mr. Justice Clarke, Chief Justice, delivered the 19th of
March, 2020.
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1. Introduction
1.1       The tragic circumstances underlying this appeal must be acknowledged. The
first named plaintiff/respondent (―Ms. Morrissey‖) is terminally ill from cancer. She
had undergone screening in accordance with the National Cervical Screening
Programme (―CervicalCheck‖) in August 2009 and again in August 2012. In both
instances, her smear test was reported as negative for abnormalities and she was
provided with a clear result. However, in May 2014, Ms. Morrissey attended at her
G.P. following symptomatic bleeding and was referred for further testing. A biopsy
and an MRI scan subsequently disclosed the existence of cervical cancer.
1.2       Following this diagnosis, the 2009 and 2012 smears provided by Ms.
Morrissey were audited and it was reported that the original results provided in
respect of both tests were incorrect. By 2015, the results of the audits had been
communicated to CervicalCheck. However, their results were not disclosed to Ms.
Morrissey until mid-2018, when Ms. Morrissey herself made inquiries as to whether
there had been an error in her case.
1.3       Ms. Morrissey and the second named plaintiff/respondent, her husband, (―Mr.
Morrissey‖, and collectively, ―the Morrisseys‖) commenced these proceedings
thereafter. The first named defendant/appellant (―the HSE‖) is, of course, the body
charged with the provision of health services in Ireland and, in the particular context
of these proceedings, with the promotion of the CervicalCheck scheme. It will be
necessary to go into the precise role of the HSE in due course, for its legal obligations
in respect of CervicalCheck are one of the issues which will need to be addressed.
1.4       From 2008, the HSE contracted out the testing of samples to various
multinational firms. The second named defendant/respondent, Quest Diagnostic
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Incorporated (―Quest‖), carried out an examination of the sample taken from Ms.
Morrissey in August 2009, in one of its laboratories located in Grand Rapids,
Michigan in the United States. The third named defendant/respondent, Medlab
Pathology Limited (―Medlab‖), tested the sample provided in August 2012 in one of
its laboratories situated in Co. Dublin.
1.5       The High Court (Cross J.), in a judgment delivered on 3 May 2019 (Morrissey
& anor v. Health Service Executive & ors [2019] IEHC 268), gave judgment in favour
of the Morrisseys in the sum of €2,152,508 against all three defendants and an
additional sum of €10,000 in nominal damages as against the HSE in respect of its
failure to notify Ms. Morrissey of the results of the audits of her earlier smear tests.
1.6       Each of the defendants/appellants sought leave to appeal directly to this
Court. An oral hearing ensued. For the reasons set out in a judgment of this Court
(Morrissey & anor v. Health Service Executive & ors [2019] IESC 60), leave to
appeal was granted although the issues became somewhat more confined in
circumstances described in that judgment.
1.7       It is, therefore, appropriate to set out the basis on which leave to appeal was
granted, for that defines the parameters of this appeal. Before this Court, it was
outlined that there were a number of other cases pending before the High Court which
have arisen in a similar factual context to that of these proceedings. It was also
stressed that the work of the CervicalCheck Tribunal, as established by law in July
2019, will involve the assessment of legal liability and will therefore require the
application of the same legal test as that determined in the courts. Thus, it was clear
that the Tribunal would be significantly constrained in progressing its work if there
remained doubt about the proper test to be applied in determining legal liability.
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While it is usually appropriate that an appeal is heard in the Court of Appeal, where
narrowing and clarification of the issues of importance can take place, here this Court
held that the question of the standard of care to be applied in screening cases met the
constitutional threshold for leave to appeal generally and, having regard to the
urgency which attends its clarification, also met the additional criteria necessary to
grant leapfrog leave.
1.8       In respect of whether the other grounds of appeal urged by the defendants
justified a grant of leapfrog leave, it was held that the interests of justice required
granting that wider leave. It should be noted that both Quest and Medlab had agreed
at the oral hearing to drop certain grounds of appeal as advanced in their applications
for leave. At para. 4.7, the Court held:-
―Considering the standard of care grounds in the abstract, while issues
concerning some of the findings of the High Court remained alive before the
Court of Appeal, would be highly unsatisfactory. I am also satisfied that it
would be unfair to the defendants/appellants to require them to abandon all of
the other grounds as the price for obtaining leapfrog leave. Most of those
grounds are sufficiently closely connected with the standard of care grounds in
any event such that this Court is likely to need to at least get into the facts
relevant to those grounds to some extent. Insofar as the causation and, in the
case of Medlab, quantum grounds are raised, it seems to me that these issues
can most conveniently be dealt with in the same appeal.‖
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2. The Broad Issues
2.1       Before setting out the broad categories of issue which arise on this appeal, it
may be useful to make one general observation. At a superficial level, it might be
thought that a case such as this ought to be relatively straightforward. If a person gets
the all-clear as a result of a screening process and subsequently develops the disease
which the screening process was intended to detect, then it might be felt that it must
be fairly obvious that someone was at fault. However, that does not necessarily
follow.
2.2       I would emphasise that not all of the matters which I am about to note will
necessarily arise in each case and all of them do not arise in this case. However, there
are a range of reasons why it might, at least in theory, be the case that a person who
obtained a clear result on a screening process might subsequently be diagnosed with
the relevant disease in the absence of any negligence by any party.
2.3       First, there will almost always be some period of time between the test which
led to a clear result and the diagnosis of the disease in question. Depending on the
length of that time and the likely progress of the relevant disease, there may, in some
cases, be a possibility that whatever the relevant indicators for the disease in question
are, they may not have been present at the time of the screening process but have only
developed at a later stage. Next, in the context of a screening process such as that
with which this Court is involved on this appeal, it is always possible that a sample
taken may not contain any of the type of suspicious material which ought to have
given rise to a result suggesting that the test was not clear. In other words, suspicious
material might not actually have been captured during the taking of the sample, or at
least captured in a sufficient quantity that it would show up during the screening
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process. Third, it should be noted, for reasons which will be addressed in this
judgment, that even screening processes which operate at the very highest standards
can give rise to different results by competent screeners. In addition, a retrospective
review of the screening process after someone has been diagnosed may well give
different results, possibly influenced by the difficulties encountered with hindsight. It
is thus possible, as the trial judge in this case found, that a competent screener
exercising ordinary care might give a clear result, even in circumstances where it
might transpire with the benefit of hindsight that there could have been suspicious
material on the slide. For these and doubtless other reasons, it is not simply a case of
inferring from the fact that someone obtained a clear result but subsequently was
diagnosed with the relevant disease that there was necessarily negligence on
someone‘s part. It follows that the assessment of whether there was negligence in any
particular case will involve findings of fact by the trial judge based on evidence. That
process may well be both difficult and complex and each case will, necessarily,
depend to a significant extent on its own facts.
2.4       Against that background, I should start by noting that, at the oral hearing,
counsel on all sides were asked to agree that five sets of issues arose between the
parties. I did not understand there to be any disagreement about that proposition,
although there are undoubtedly sub-issues potentially arising in some, if not all, of the
categories.
2.5       The first issue concerned the proper approach to negligence in a case
involving medical screening such as this. As will become apparent, the trial judge,
relying on the case law of the United Kingdom, had applied what he said was an
―absolute confidence‖ test, although it is important to understand that the trial judge
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was quite specific about the precise aspects of the case to which that test was to be
applied. The potential question which arose was as to whether the trial judge could be
said to have applied a test differing from the established case law of the courts in this
jurisdiction as regards the legal standard of care in medical negligence cases, which
finds its clearest example in Dunne (an infant) v. National Maternity Hospital
[1989] I.R. 91. However, in the course of the oral hearing, it became clear that there was no
significant dispute between the parties on this question. However, I am mindful of the
fact that a significant amount of public comment, some of it unfortunately
misinformed, followed from the judgment of the High Court and I do, therefore,
propose setting out the position in the hope of bringing some clarity to a potentially
controversial issue.
2.6       Second, Quest raised certain points concerning the findings of the trial judge
which led to a conclusion that it was negligent in the way in which it carried out its
functions. In fairness to counsel for Quest, it was not argued that there was no
evidence from which the trial judge might have reached the conclusions which he
ultimately did in this case. However, it was said that there was a significant failure of
the trial judge to properly engage with certain aspects of the defence case, such that
the finding in negligence against Quest should be set aside.
2.7       Third, there were similar issues raised by Medlab concerning the finding of
negligence against it. In that context, it is of some relevance to note at this stage that
the finding against Quest related to the reading of the slides concerned. It was said
that had such reading been properly carried out, a negative result should not have
ensued. A like claim was made against Medlab, although it is of some importance to
note that the trial judge rejected that aspect of the claim against that party. However,
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it is clear that there may be circumstances in which it is inappropriate to give a result
in respect of a particular screening where the cell count of the relevant sample is
inadequate to allow for its proper assessment. The finding of negligence against
Medlab related to what was said to be negligence in assessing the smear in question as
being adequate for such assessment. However, points are put forward on behalf of
Medlab to suggest that, as in the finding of negligence against Quest, there was a
failure to properly engage with certain aspects of the case which it put forward in that
regard.
2.8       Fourth, there were issues raised by the HSE concerning the finding of the trial
judge that the HSE was liable in negligence arising from the manner in which both
Quest and Medlab carried out their tests. The trial judge found that the HSE was
primarily liable in respect of the way in which the tests were carried out but also held
that the HSE was vicariously liable for the negligence found against the two
laboratories. The HSE appealed against both of those findings.
2.9       Fifth, and finally, Medlab raised some questions concerning particular
elements of the damages awarded by the trial judge. Neither of the other defendants
has raised questions as to damages in their appeals.
2.10       However, in order to properly understand both the approach of the trial judge
and, more specifically, many of the issues which arise before this Court, it is
appropriate to set out in a little detail the history of CervicalCheck and, in particular,
the way in which it works in practice.
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3. CervicalCheck
3.1       In 2008, the National Cancer Screening Service (―the NCSS‖) was responsible
for the establishment of the CervicalCheck programme, which provides free smear
tests for women between the ages of 25 and 60 in order to regularly screen for early
signs of the development of cervical cancer. In 2010, the Board of the NCSS was
dissolved and its functions were assumed by the HSE, as part of its National Cancer
Control Programme.
3.2       From 2008, the testing of the samples was contracted out by CervicalCheck to
various multinational firms, including Quest and Medlab, which provided a faster
service than that of Irish labs. These contracts provide that the tests are to be carried
out in accordance with the NCSS Guidelines for Quality Assurance in Cervical
Screening, which require the use of the Bethesda System for Reporting Cervical
Cytology (―the Bethesda System‖).
3.3       As part of the programme, audits are conducted in respect of the screening
histories of those patients who receive a diagnosis of cervical cancer. Laboratories
conduct a review of previous smears and their results where cancer is subsequently
detected. The purpose of these audits is educational, for the screeners and the
laboratory to look into the quality of the testing and to make any improvements
necessary.
3.4       Smear tests are not diagnostic tests, but rather are screening tests to determine
whether the cells examined are healthy or whether they may have been contaminated
by the HPV virus. Where high-risk HPV is carried in the body for some two to three
years, a pre-cancer will develop. This pre-cancer may be high grade or low grade. If a
significant number of high grade lesions are not detected and treated, this will
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progress and develop into an invasive cancer. The invasive cancers are typically either
squamous cell tumours or glandular cell tumours. It was accepted in evidence by the
High Court that such pre-cancer will usually progress to invasive cancer over an eight
to twelve-year period of time.
3.5       Samples of cells are taken from the cervix by a patient‘s GP, using a system
known as Liquid Based Cytology, which are then reviewed by a laboratory. In the lab,
a slide is made from the sample using the ThinPrep Imaging System. The slide is
then examined by a qualified cytoscreener, who must first assess the sample for the
adequacy of its cell count. For a sample to be considered adequate, as required by the
Bethesda System, there must be a minimum number of 5,000 well-visualised
squamous cells. Most samples will clearly be seen to be adequate on a quick
overview, but in the event of any doubt, the slide must be assessed for adequacy using
the ThinPrep method prescribed by the Bethesda system.
3.6       The screener then examines the cells for abnormalities at various
magnifications. If any abnormal cells are detected, irrespective of the adequacy of the
sample, the slide must be classified as abnormal. The terms of the contracts agreed
between CervicalCheck and both Quest and Medlab provided that laboratories were to
screen samples using one of the following processes; a full manual primary and
secondary screening; a full manual primary screening and rapid review rescreening; a
full manual primary and rapid preview screening; or one of the above options with
automated-assisted screening in place of manual screening.
3.7       The apparently uncontested evidence before the High Court suggested that the
practice of the laboratories operated by Quest at the relevant time in respect of those
slides which were reviewed under its contract with CervicalCheck was that two full
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manual screenings of each slide took place. All parties agreed that the reports of the
Scoping Inquiry into the CervicalCheck Screening Programme, as conducted by Dr.
Gabriel Scally (―the Scally Reports‖), could also be considered by the Court. The
Scoping Inquiry was established by the Government in 2018 in order to examine and
establish the facts surrounding the issues which had recently come to light in respect
of the operation of CervicalCheck. I do note that a somewhat different description of
these procedures appears in the final Scally Report, published in September 2018. I
should emphasise that a court can only consider facts based on the evidence presented
to it. It may well be the case that, for the purposes of these proceedings, nothing turns
on the difference between this aspect of the evidence presented to the High Court and
the relevant description contained in the Scally Report.
3.8       However, it is again important to emphasise that, where a difference on the
facts is potentially relevant to the outcome of the case, it is important that sworn
evidence is presented in respect of the competing positions and that any relevant party
is given the opportunity to test the competing evidence before the judge. It is also of
particular importance to emphasise that the function of a trial judge is not the same as
the function of a person preparing a report. The trial judge is only required to make
findings of fact in relation to questions which are relevant to determining legal
liability. Trial judges sometimes specify additional facts by way of background or to
provide context, but the precise accuracy of such facts is only important where the
facts in question have at least the potential to influence the outcome of the case. In
that context, I would draw attention to the observations of this Court on the question
of whether it is necessary to correct factual errors which are not material (see, in that
regard, the judgment of this Court in Walsh v. Minister for Justice and Equality
[2019] IESC 54).
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3.9       Be that as it may, it was found by the trial judge that it is the practice of
Medlab that a primary manual screen is first conducted by a cytoscreener. If this first
screen highlighted any areas of suspicion, then a full manual rescreening is conducted.
However, if no areas of suspicion are detected by the first screener then there is no
manual rescreening, but rather an automated analysis of the sample is conducted by a
machine using the ThinPrep Imaging System. If there are any areas of suspicion,
these are highlighted on the slide using a marker, and the slide is sent to a pathologist
in the laboratory.
3.10       The results of the tests can be graded by a screener using either the Bethesda
System of classification or the British Society for Clinical Cytology CIN terminology,
both of which result in the same consequences for the patient. The system used by the
laboratories contracted to CervicalCheck is the Bethesda System. The grades to
which a test should be marked, according to the Bethesda terminology are;
unsatisfactory/inadequate sample, negative/NAD (no abnormality detected), ASC-US
(atypical squamous cells of undetermined significance), LSIL (low grade squamous
intraepithelial lesion), HSIL (high grade squamous intraepithelial lesion), squamous
cell carcinoma, AGC/AGUS (atypical glandular cells/of undetermined significance),
glandular neoplasia or broken/damaged/expired slides. The categories of ASC-US or
AGC/AGUS denote borderline abnormalities in squamous and glandular cells,
respectively. These do not of themselves denote either cancer or pre-cancer but do
represent a non-negative finding and require at least that a patient is rescreened within
a short number of months.
3.11       The laboratories are obliged, under the terms of their contracts with the HSE,
to record the appropriate treatment alongside the results of the screening. If the test
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finds that the cells are healthy, then the patient is referred for routine repeat
examination, which is usually every three years. Where the laboratory finds the cells
to be abnormal, then depending upon the result, the patient is either sent for early
repeat screening or else directly to the patient's doctor for colposcopy and, if
necessary, other treatment. In the High Court, it was held that the evidence of all
relevant experts was that in the event of any ambiguity, the lab ought to report the
cells as abnormal.
3.12       It is clear that the screening is not infallible. For example, actual abnormal
cells in the patient‘s body may not have been located in the sample. In addition, as
noted by the High Court, there is also ―room in the analysis for genuine and non-
negligent divergence as to whether particular cells are negative or potentially
alarming‖. One study accepted in evidence before the High Court, which reviewed
the audits of over 6,000 English patients of the NHS Cervical Screening Programme
who had been diagnosed with cervical cancer, indicated that at least 44% (or 55%,
depending on whether samples labelled as ‗inadequate‘ are counted) of their previous
samples were incorrectly marked as normal at first screening. It bears noting that this
statistic does not indicate that there is anything close to a 50% chance of the results of
a screening test being wrong. The lives of many women have been saved as a
consequence of the detection of abnormalities in the course of such screening
programmes. It should be emphasised that this study refers to an audit of the prior
tests of the small proportion of patients who had subsequently received a diagnosis of
cervical cancer. In order to ascertain whether there has been any negligence or breach
of duty in any case, each screening test would have to be assessed individually.
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3.13       Against that background, it is appropriate to turn to the history of the
Morrisseys‘ engagement with CervicalCheck.
4. The Facts of this Case
4.1       Mr. and Ms. Morrissey are married with one young daughter. In August 2009,
Ms. Morrissey underwent a smear test which was processed by Quest, as part of its
contract with the HSE, in its laboratory in Grand Rapids, Michigan. The sample was
reported to be adequate and the result was negative for any abnormality. Ms.
Morrissey was advised to return for a routine repeat examination in three years‘ time.
4.2       Ms. Morrissey‘s next smear test was taken in August 2012, and processed by
Medlab, in its laboratory in Co. Dublin. It was reported that the sample was adequate
for assessment and that there was no evidence of the presence of new abnormal
growth tissues. Ms. Morrissey was again recommended for routine recall in three
years‘ time.
4.3       Following an investigation as a result of symptomatic bleeding in May 2014,
Ms. Morrissey received a diagnosis of invasive squamous carcinoma of the cervix. A
further smear test was carried out in 2014 following the diagnosis, which also
returned a negative result. There is no suggestion that this interpretation was
negligent. Surgery was required and the cancer appeared to have been treated
successfully. In 2018, there was a serious recurrence of the cancer and, tragically,
Ms. Morrissey has since received a terminal prognosis.
4.4       As a result of Ms. Morrissey‘s 2014 diagnosis, audits were conducted of the
2009 and 2012 smears. In September 2014, the 2009 slide was reviewed by the senior
staff pathologist of Quest, who reported that the original test was incorrect and found
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the slide to contain borderline nuclear abnormalities, marking it AGC/AGUS. Under
the heading in the report of ‗Factors likely to lead to false negative results‘, nothing
was inserted.
4.5       The 2012 slide was reviewed internally by the medical director of Medlab in
October 2014, and this review also found that the original result was incorrect. Under
the heading of Factors likely to lead to false negative results, the laboratory listed
the fact that the sample was scanty, a term used to indicate an inadequate number of
cells on the slide. The 2012 slide was also externally audited by an independent
reviewer in 2015, who reached the same conclusion that the slide had been
inaccurately read and also classed the sample as scanty.
4.6       The results of the internal audit of the 2009 slide and the internal and external
audits of the 2012 slide were communicated to CervicalCheck by 2015.
CervicalCheck advised Ms. Morrissey‘s treating doctor of the audit results in June
2016. These were not discussed with Ms. Morrissey. When national publicity in
relation to another patient arose in mid-2018, Ms. Morrissey herself made inquiries as
to whether there had been errors in her case. At this juncture, she was advised of the
results of the audit by her doctor, who apologised to the Morrisseys and indicated that
he simply forgotto tell them.
4.7       It is Ms. Morrissey‘s case, as put before the High Court and again before this
Court, that had the 2009 and 2012 smears been accurately reported at first, then, as a
matter of probability, subsequent medical investigations would have disclosed a
precancerous condition, which would have been treated successfully, and Ms.
Morrissey would not be facing the same terminal prognosis which she has now
received. Each of the defendants deny liability and loss. Before the High Court, the
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HSE admitted breach of duty limited to its failure to advise Ms. Morrissey of the
results of the audit, but denied loss on this basis.
4.8       It is appropriate next to turn to the judgment of the High Court.
5. The High Court Judgment
5.1       As a preliminary point, it is appropriate to draw attention to the timescale
within which these proceedings operated. Clearly, having regard both to Ms.
Morrissey‘s medical situation and the fact that there are a large number of other
similar cases pending before the courts, it was considered highly desirable that
judgment should be given as quickly as possible.
5.2       Addressing the proper approach to be applied in a case involving medical
screening such as this one, the trial judge considered that the legal standard of care
and the factual standards and criteria to which the screener must adhere are different,
although interrelated, issues. The trial judge held that the classic statement of the
applicable legal standard of care in the context of medical negligence cases is set out
by Finlay C.J. in Dunne v. National Maternity Hospital, at p. 109:-
―1. The true test for establishing negligence in diagnosis or treatment on the
part of a medical practitioner is whether he has been proved to be guilty
of such failure as no medical practitioner of equal specialist or general
status and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on
proof that he deviated from a general and approved practice, that will not
establish negligence unless it is also proved that the course he did take
was one which no medical practitioner of like specialisation and skill
would have followed had he been taking the ordinary care required from
a person of his qualifications.
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3. If a medical practitioner charged with negligence defends his conduct by
establishing that he followed a practice which was general, and which
was approved of by his colleagues of similar specialisation and skill, he
cannot escape liability if in reply the plaintiff establishes that such
practice has inherent defects which ought to be obvious to any person
giving the matter due consideration.
4. An honest difference of opinion between doctors as to which is the better
of two ways of treating a patient does not provide any ground for leaving
a question to the jury as to whether a person who has followed one
course rather than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative
courses of treatment is in their (or his) opinion preferable, but their (or
his) function is merely to decide whether the course of treatment
followed, on the evidence, complied with the careful conduct of a
medical practitioner of like specialisation and skill to that professed by
the defendant….‖
5.3       The trial judge placed particular reliance on the decision of the English Court
of Appeal in Penney, Palmer & Canon v. East Kent Health Authority [2000] Lloyds
Rep Med 41 (―Penney Palmer‖), a case which also considered the allegedly negligent
misreading of smear tests by cytology screeners. It is apparent that the trial judge
considered the approach of Lord Woolf M.R. in those proceedings to be entirely
correct, and thus it is appropriate to briefly set out the relevant aspects of that
decision.
5.4       In that case, the Court of Appeal expressly approved the legal test for the
standard of care in screening cases, as had been stated in Bolam v. Friern Hospital
Management Committee [1957] 1 W.L.R. 582. This, together with Bolitho v. City and
Hackney Health Authority [1988] A.C. 232, was considered by Cross J. to be the
English equivalent of the Dunne test. Lord Woolf M.R. then stated the following in
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relation to the questions to be addressed in the context of determining the negligence
of a medical screener, at para. 27:-
―…the Bolam test has no application where what the judge is required to do is
make findings of fact. This is so even where those findings of fact are the
subject of conflicting expert evidence. Thus, in this case there were three
questions which the judge had to answer:-
(i) What was to be seen in the slides?
(ii) At the relevant time could a screener exercising reasonable care have
failed to see what was on the slide?
(iii) Could a reasonably competent screener aware of what a screener
exercising reasonable care will observe on the slide treat the slide as
negative?‖
5.5       Further, Lord Woolf M.R. agreed with the finding of the trial judge in those
proceedings, to the effect that the experts in that case endorsed a requirement of
―absolute confidence‖, being that, if there was any doubt in the mind of a screener as
to whether the slide was normal, the screener should not classify it as negative. Thus,
it was held by the Court of Appeal that a slide should not be classified as negative
unless the screeners had ―absolute confidence‖ that it was so.
5.6       The trial judge in these proceedings adopted a modified version of the three-
stage approach set out by Lord Woolf M.R. and held that, before applying the Dunne
principles, the court must consider what is on the slides, a question of fact which must
be determined on the balance of probabilities. Following such a determination, he
held that the court must then consider the Dunne principles, in reference to the
screener‘s practical obligation of ―absolute confidence‖, in the analysis of their slides.
This was elaborated on further at paras. 71 and 72 of the judgment of Cross J., as
follows:-
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―71. I hold that ―absolute confidence‖ is the screeners practical duty in
relation to their analysis of what is on the slide and indeed the adequacy
of the sample, and the legal issue is whether or not they have carried out
that duty in accordance with the Dunne principles. These extra tests set
out in Penney Palmer are combinations of factual and legal matters, but
I accept that a screening programme especially one such as in Ireland
which does not have annual retesting, is inherently deficient if screeners
ascribe as normal, results in which they are in any doubt. Accordingly,
to ascribe as normal, a slide which the screener has any doubt of that fact
even if he legitimately believes it to be normal on the balance of
probabilities, is to fall below the Dunne standards required of that
screener. Whether the screeners were right not to have any doubt is a
matter to be assessed at law in accordance with the Dunne principles.
72. In other words, if there is any room for doubt that the slide was normal
and the screener ascribes a normal result to the slide then the screener is
in breach of the Dunne principles as he has been guilty of such failure
that no professional scanner of equally specialist or general status and
skill would have been guilty of if acting with ordinary care. A screening
programme cannot operate safely if screeners are left to judge the slides
and whether they are safe merely on the balance of probabilities…‖
5.7       The overall approach which the trial judge considered was appropriate in the
assessment of negligence in the context of medical screening was then set out at para.
74:-
―[T]he legal standard to be applied on the issue of the liability of the
defendants is the Dunne test. Questions of fact, however, are for my decision
on the balance of probabilities. The questions of fact include what was to be
seen on the individual slides. Accordingly, as in Penney Palmer, the correct
approach is to determine:-
(i) what was to be seen on each slide;
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(ii) whether a reasonably competent screener at the relevant time could have
failed to see what was on the slide; and
(iii) whether a reasonably competent screener in the light of what he or she
should have observed, could have treated the slide as negative.
Questions (ii) and (iii) above and any issues as to adequacy are to be decided
in the light of the ‗absolute confidence‘ test and thereafter, the test for
negligence is as stated in Dunne.‖
5.8       Before turning to consider the allegedly negligent analysis of the slides, the
trial judge noted the potential issue of hindsight bias in respect of any retrospective
review of the smear tests. It was held that a court should be wary of the potential for
retrospective bias in the course of an audit or an expert‘s review and thus treat their
results with caution. While noting that there are certain merits to conducting a blind
review in order to reproduce the original screening conditions, the trial judge held that
such a review is not compulsory and that the court should assess the professional
opinion of any expert, whether conducting a blind review or otherwise, and come to a
judgment.
5.9       Employing the three-part test as set out above, the trial judge then turned to
consider the negligence of Quest in relation to the 2009 smear test. Answering
question (i), it was held that certain abnormal features of cells were visible on the
slide, and thus the trial judge had ―no doubt‖ that the cells on the slide were
AGC/AGUS. In this regard, he accepted the evidence of the Morrisseys‘ expert
witnesses, Ms. Tan and Dr. McKenna, and the conclusions of those who conducted
the audit.
5.10       In respect of question (ii), the trial judge held that a reasonably competent
screener at the relevant time should not have failed to see what was on the slide,
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where there were clear indicators of cell abnormality. In this regard, the evidence of
Dr. McKenna was also accepted. The trial judge held that the evidence challenging
this conclusion, which was given by American expert witnesses appearing on behalf
of Quest, should be treated with caution, in light of the influence of the Guidelines for
the Review of GYN Cytology Samples in the Context of Litigation or Potential
Litigation, which were issued by the American Society of Cytopathology (hereafter,
―the Guidelines‖). The trial judge found that the Guidelines were prepared in an
attempt to limit litigation and to provide a robust defence for cytoscreeners accused of
negligence in the American courts.
5.11       In particular, the trial judge disagreed with the provisions of the Guidelines
which seek to impose an obligation in all cases to carry out a blind review and which
suggest that, in the absence of a blind review, it is wrong to impute any screener with
negligence. Cross J. also disagreed with those provisions of the Guidelines which
deal with findings of ASC-US and AGUS cells. In respect of such findings, the
Guidelines state that such cases ―do not represent consistently identifiable
abnormalities and a reasonable basis for allegations of practice below a reasonable
prudent practitioner standard of care‖. Insofar as this provision proposes that it is not
negligent to report a finding of ASC-US or AGUS cells as a normal or clear result, it
was roundly rejected and criticised by Cross J. It is apparent that the trial judge
considered that this attitude towards the categorisation of ASC-US and AGUS cells
was prevalent amongst Quest‘s American expert witnesses. One of Quest‘s expert
witnesses, Prof. Austin, was involved in the drafting of the Guidelines, while another
expert witness, Mr. Feit, referred to the high degree of inter-observer variability in
respect of ASC-US and AGUS categories and stated that the categories are not used at
all in the U.S. for proficiency audits or examinations of cytoscreeners. Mr. Feit‘s
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evidence that, in his view, the slide was normal, was dismissed as having been arrived
at on the balance of probabilities, utilising his professional skill and judgement. On
the basis that the Guidelines had affected, even subconsciously, the evidence of the
American expert witnesses, which could give rise to the belief that ASC-US or AGUS
cells need not be examined with the same scrutiny nor be subject to the requirement
of ―absolute confidence‖, the trial judge held that such evidence should be treated
with caution.
5.12       Quest chose not to call the two screeners who reviewed the slide in 2009 or
the individual who conducted the 2014 audit of the slide to give evidence.
Considering question (iii), it was held that in the absence of any such evidence, the
trial judge had no knowledge as to what they did or did not see or how they did or did
not appraise the slide. Cross J. held that it was his belief that the Quest screeners
were utilising their professional skill and judgment and recording what they believed,
as a matter of probability, was the case. However, applying the requirement of
―absolute confidence‖, and on the basis of the abnormalities as identified on the slide
by Dr. McKenna, it was concluded that the slide ought not to have been categorised as
negative, and that Quest was negligent and in breach of duty in relation to the reading
of the 2009 smear test.
5.13       As previously mentioned, Medlab was held not to be negligent in its reading
of the slide which had been sent to it. While concluding that abnormalities were
visible on the slide which suggested a categorisation of AGUS/AGC cells, the trial
judge held that these cells were not easily distinguishable from other normal cells and
thus that a screener exercising reasonable care could have failed to identify the same.
The High Court therefore held that the categorisation of the slide as negative for
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abnormalities was not negligent nor a breach of duty. This finding is not in issue on
this appeal.
5.14       The trial judge then considered the issue of the adequacy of the 2012 slide. As
previously mentioned, under the Bethesda System a minimum of 5,000 well-
visualised cells must be counted on a slide for it to be considered adequate. The
adequacy of most slides can be determined by a brief visual examination. If this
visual inspection is insufficient, the Bethesda System prescribes that the ThinPrep
method is used to formally test for adequacy. This requires viewing the slide under a
microscope on a vertical or horizontal axis and magnifying random points on that axis
in order to count the number of cells present. From this, the number of cells are
multiplied appropriately in order to ascertain whether the minimum number of
required cells are present on the slide. If the screener finds less than that amount, then
the patient should be referred for a repeat smear test in one to three months.
5.15       Both the internal and external audits of the 2012 slide which were carried out
considered that the reason for the false negative result provided was that the slide was
very scanty‖. The evidence of the Morrisseys‘ expert witnesses, Ms. Tan and Dr.
McKenna, and Medlab‘s expert witness, Prof. Pitman, also indicated that the slide
contained an inadequate number of cells. Dr. McKenna and Prof. Pitman both
reached this conclusion having carried out a formal test for adequacy as prescribed
under the Bethesda System. Ms. Stowe, another expert witness who appeared on
behalf of Medlab, gave evidence that she found a sufficient number of cells on the
slide following a formal test for adequacy.
5.16       The trial judge dismissed the evidence provided regarding a study carried out
in St. Vincent‘s Hospital, Dublin, and a second study carried out by Prof. Pitman,
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both of which purposively looked for cells, and counted and multiplied the number of
cells located in order to achieve a purported total. It was held that this was not a valid
approach, given that neither study sampled on a random basis in order to calculate an
average number of cells, as required by the Bethesda System.
5.17       The trial judge also dismissed the evidence of Dr. Madrigal, a pathologist who
conducted a computer analysis of the slide on behalf of Prof. Pitman and determined
that there were, in fact, over 35,500 cells on the slide. This alternative system of
counting cells was held to be irrelevant, in circumstances where there has been no
study conducted, subject to peer review or otherwise, to demonstrate that such a
computer analysis is suitable or indeed to determine what number of cells must be
found on the slide by the computer in order to establish adequacy. Further, the trial
judge placed reliance on the fact that Medlab was required, under the terms of its
agreement with CervicalCheck, to utilise the Thin Prep method, as prescribed under
the Bethesda System.
5.18       Turning to consider the 2012 slide, the trial judge held that, on a visual
examination, it was significantly different from all the other slides he had witnessed
and that it appeared to have significantly fewer cells on it. It was held that the
―absolute confidence‖ test is also applicable in the context of the slide‘s adequacy,
meaning that in the event of any doubt on the part of a competent screener, the slide
ought to have been formally tested for adequacy. In light of the evidence put before
the High Court, and the trial judge‘s observations of the 2012 slide, it was held that
the failure to test the slide for adequacy in accordance with the ThinPrep method was
negligent and in breach of duty. In accordance with the Dunne principles, it was held
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that no screener of equal specialist or general status would have, if acting with
ordinary care, failed to subject the slide to an appropriate test as to adequacy.
5.19       While acknowledging that the nature of the formal adequacy test carried out
by Ms. Stowe was unclear and was not referred to in any report, the trial judge
accepted that she conducted her test in accordance with the Bethesda System.
However, he held that it was unlikely that any such random review would have found
the slide to be adequate. As Medlab chose not to call the two individuals that initially
reviewed the 2012 slide, there was no evidence provided as to whether an adequacy
test was carried out. The trial judge held that it must be presumed no such test was
conducted. On the balance of probabilities, Cross J. held that, had a test been carried
out by the cytoscreeners, in accordance with the ThinPrep method and the Bethesda
System, it would have resulted in a finding that the slide was inadequate. Thus,
Medlab was found to be negligent and in breach of duty in its failure to properly
conduct an adequacy review.
5.20       In light of the foregoing findings of negligence on the part of Quest and
Medlab, the trial judge turned to consider the consequences of the negligent
misreading of the slides. On his analysis of the evidence as to causation and having
regard to the fact that Ms. Morrissey was diagnosed with cancer in 2014, the trial
judge held, on the balance of probabilities, that the HPV infection was present for at
least ten years before that diagnosis.
5.21       The trial judge went on to hold that had the 2009 slide been reported by Quest
as abnormal, that is, with a categorisation of AGUS/AGC cells, Ms. Morrissey would
have been referred for a colposcopy or, at least, been advised to attend for a repeat
smear in six months‘ time. It was accepted by the High Court that, on the balance of
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probabilities, such a follow-up screening or colposcopy would have returned
abnormal results. It was further accepted that the detection of such pre-cancer would
have resulted in the performance of a large loop excision of the Transformation Zone
(LLETZ) procedure. This would have led to a complete excision of the cancerous
cells, with only a 5% chance of the recurrence of precancerous cells, and less than a
1% chance of invasive cancer developing. On the balance of probabilities, the trial
judge therefore determined that the serious prognosis which Ms. Morrissey now faces
would not have arisen.
5.22       In relation to the 2012 smear, the trial judge reached the same conclusion. He
held that, had the sample been tested in accordance with the ThinPrep method, as
prescribed by the Bethesda System, it would have been deemed as inadequate and Ms.
Morrissey would have been required to undergo a repeat smear within one to three
months. On the balance of probabilities, it was held that the repeat smear would have
resulted in a referral for a colposcopy and that the cancer, which in 2012 was certainly
developing, would have been identified and Ms. Morrissey would have undergone the
same procedure which could have taken place in 2009, with the same benign results.
Accordingly, the negligent misreading of both the 2009 and 2012 slides were found to
have caused the entirety of the Morrisseys‘ claims for injuries and loss.
5.23       The trial judge dismissed the defendants‘ submission that cervical cancer
develops more rapidly in younger women than in older women. On the basis of such
a suggestion, it had been argued that Ms. Morrissey‘s cancer was not present in pre-
cancerous form in 2009 or 2012. The trial judge held that there was no evidence to
support the proposition that Ms. Morrissey‘s cancer had developed more rapidly than
average. The High Court judge further rejected the argument of the defendants that,
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as Ms. Morrissey developed squamous cancer and the abnormalities identified on the
reviewed slides were glandular in nature (being categorised as AGUS), the
development of the two were unrelated. In this regard, the trial judge accepted the
evidence of Prof. Wells to the effect that it is highly likely that where one sees
glandular pre-cancer there is an associated squamous pre-cancer, as the same
carcinogenic stimulus is affecting the stem cells of the cervix.
5.24       The trial judge held that, along with Quest and Medlab, the HSE was liable to
the Morrisseys, in light of its organisational role in the CervicalCheck programme.
Given that it determines the standards to be applied in relation to screening and to
which laboratories must conform and provides for the manner in which screening is
conducted and how it is reported, the HSE was held to have responsibility for ―all
aspects‖ of the screening programme. Further, the trial judge emphasised that the
HSE chose to contract out the screening of smear tests to Quest and Medlab and,
citing Byrne v. Ryan [2007] IEHC 207, [2009] 4 IR 542, he held that a party cannot
evade its liability merely by engaging competent professional persons to perform
tasks which they themselves are obliged to do.
5.25       Thus, the High Court held that the HSE has a primary liability towards the
Morrisseys. The trial judge dismissed the HSE‘s submission that primary liability is
based on agency and stated that he accepted the principles of Woodland v. Essex
County Council [2013] UKSC 66, [2014] AC 537 and the five-part test there
outlined by Lord Sumption. The trial judge held that the HSE was also vicariously
liable for the activities of Quest and Medlab, by virtue of the control which it holds
over the laboratories and their performance, as a result of their contractual
arrangements.
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28
5.26       The High Court held that it was impossible to differentiate between the losses
resulting from the failure to properly assess the 2009 and 2012 slides and therefore,
the three defendants were deemed to be ‗concurrent wrongdoers‘ under the Civil
Liability Act 1961, each being responsible for the same damage or for damage that
cannot be distinguished. However, as a result of the terms of the contracts between
the HSE and the other defendants, the HSE was found to be entitled to an indemnity
against the laboratories for all matters other than its liability in relation to the non-
disclosure of the audits.
5.27       Assessing the quantum of damages to be awarded, the trial judge held that Ms.
Morrissey was entitled to both general damages and special damages. Noting that the
cap on general damages was most recently fixed at €450,000 by Quirke J. in Yun v.
Motor Insurers Bureau of Ireland [2009] IEHC 318, during the time of an economic
recession, the trial judge considered it appropriate to raise the cap on general damages
to €500,000. Ms. Morrissey was awarded special damages in respect of, amongst
other things, the cost of her future care and the loss of her earnings for the remainder
of her life. The High Court held that the admitted breach of the HSE in its failure to
advise Ms. Morrissey of the results of the audits did not result in any further personal
injury being suffered by Ms. Morrissey and therefore that only a finding of nominal
damages should be made against the HSE in this respect.
5.28       The trial judge held that the Ms. Morrissey was entitled, as against all
defendants, to: general damages of €500,000; miscellaneous special damages (agreed)
of €12,508; cost of home adaption (agreed) of €70,000; occupational therapy costs
(agreed) of €55,000; loss of earnings in the sum of €50,000; care costs of €60,000;
giving rise to a total to Ms. Morrissey of €747,508; together with €10,000 in nominal
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damages against the HSE in respect of its negligence in relation to the audit. The total
amount of damages awarded to Ms. Morrissey was in the sum of €757,508.
5.29       The trial judge held that Mr. Morrissey was entitled to general damages for
loss of consortium and to special damages arising from that loss, specifically in
respect of the future care that he and his daughter will require after Ms. Morrissey‘s
death and the loss of Ms. Morrissey‘s future earnings throughout her career. The
defendants submitted that, on the basis of comments made by Geoghegan J. in
Coppinger v. Waterford County Council [1998] 4 I.R. 243, a spouse is only entitled to
damages for loss of consortium in respect of his losses while Ms. Morrissey is alive.
This was dismissed by the trial judge, who held that a spouse is entitled to damages
for future pecuniary losses under the heading of loss of consortium and that it was
irrelevant that such damages are, in certain circumstances, available in an action taken
under Part IV of the Civil Liability Act 1961, in relation to fatal injuries.
5.30       The trial judge then referred to the decision of Lavan J. in Mahon v. Burke &
anor [1991] 2 I.R. 495, which held that, where a deceased person has brought an
action in negligence and was awarded damages, a statutory dependent was not entitled
to maintain an action under Part IV of the 1961 Act, as to hold otherwise would be to
subject a defendant to more than one case arising from the same cause of action. It
was then pointed out that this authority can operate to exclude the dependants of an
injured party from making claims for future financial losses because the injured party
had vindicated her rights during her lifetime in a personal action claiming damages
for personal injury. A situation where an injured party was confronted with a choice
to either vindicate her own rights in a personal action claiming damages for personal
injury, therefore depriving her dependants of any separate claim in the future, or
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alternatively forego her personal claim so that her dependants could achieve
compensation for their losses, was described by the trial judge as ―grossly unfair‖.
5.31       To remedy this situation, the trial judge suggested that the principle of ―lost
years‖ could be employed to compensate a plaintiff whose working life expectancy
has been cut short for the loss of her future earnings and the loss of her ability to care
for her children. If Mr. Morrissey is not, in fact, entitled to damages for future losses
under the heading of loss of consortium, then the trial judge held that he would have
found that the same damages would be recoverable by Ms. Morrissey under the
heading of ―lost years‖. The trial judge also highlighted the potential application of
the ―lost years‖ principle in circumstances where a claimant does not have a spouse
that can recover such damages for loss of consortium but does have child dependants
who would be deprived of any future statutory claim.
5.32       The trial judge held that the Mr. Morrissey was entitled, as against all
defendants, to: general damages for loss of consortium in the sum of €60,000;
damages for loss of Ms. Morrissey‘s income of €600,000; loss of pensions, company
car and share options in the sum of €150,000; costs of care for their child of €500,000;
costs of domestic assistance of €75,000; retrospective care costs of €13,432 and
bereavement counselling costs of €6,532; thus giving a total to Mr. Morrissey of
€1,405,000. The overall sum of damages awarded to Mr. and Ms. Morrissey was,
therefore, €2,162,508. The trial judge assessed that sum as being fair and reasonable
in all the circumstances.
5.33       As will have been seen, most of the five issues identified earlier as arising on
this appeal involve quite distinct questions. The only exception are the two issues
raised by, respectively, Quest and Medlab, which suggest that the trial judge failed to
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adequately or appropriately engage with their case on the question of negligence.
While the precise manner in which those defendants analysed the purported failure of
the trial judge in that regard involves different considerations, there is clearly a great
deal of common ground between those two issues.
5.34       I will, therefore, deal with those two issues together. However, it seems to me
to be appropriate to deal separately with each of the other issues and to set out the
arguments of the parties in respect of those different issues as part of the discussion
under each heading. I propose, therefore, to turn first to the question of the legal
standard of care in clinical negligence cases and its application in the context of
screening.
6. The Proper Approach
6.1 As noted earlier, developments at the oral hearing suggested that there was
ultimately little difference between the parties as to the proper approach to be adopted
by a screener in a case such as this. However, as this matter has generated significant
controversy and was, indeed, one of the reasons why this Court considered it
appropriate to allow a leapfrog appeal directly to the Court, it is important that the
position is set out in some detail.
6.2 I have already cited the so-called Dunne principles. All parties ultimately
agreed that those principles continue to represent the law in this jurisdiction. It is also
clear that there are significant similarities between the Dunne principles and the legal
test for the standard of care identified in the United Kingdom in Bolam and Bolitho.
6.3 Before addressing the precise principles to be applied, it is appropriate to
briefly make a number of preliminary observations. The first is that care needs to be
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taken in the use of the term ―standard of care‖. As the trial judge pointed out, that
term has a precise legal meaning and represents, at the level of principle, the legal
duty which applies in any particular circumstance. However, given that, in clinical
negligence cases, a court is dealing with ―care‖ in a medical sense, the phrase
―standard of care‖ might at least colloquially be used to define the appropriate
standard by reference to which the approach of a relevant professional to a particular
problem should be assessed. To avoid any possible confusion between the term
―standard of care‖ in its precise legal meaning and what might colloquially be called a
standard of care in a clinic setting, I will use the term ―standard of approach‖ to mean
the standard which, in practise, has been shown to be required of a particular
professional in particular circumstances.
6.4 One further observation may also be useful at this stage. There are, of course,
similarities between the Dunne principles as applied by the courts in this jurisdiction
and the Bolam and Bolitho principles applied in the United Kingdom. I have already
cited a passage from the judgment of Lord Woolf M.R. in Penney Palmer in which he
indicated that ―the Bolam test has no application where what the judge is required to
do is make findings of fact‖. It seems clear that, in the context in which Lord Woolf
M.R. was commenting, the Bolam test is in reality a reference to the fourth point
identified in the judgment of Finlay C.J. in Dunne (as already cited). Thus where, in a
number of judgments, the U.K. jurisprudence suggests that the Bolam test has no
application in particular circumstances, it does not seem to me that it follows that the
Dunne principles may not apply, for the specific point decided in Bolam forms but
one leg of the overall test identified in Dunne.
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6.5 In any event, it is important to start by indicating that, while the principles
identified by Finlay C.J. in Dunne are expressly related to negligence against medical
practitioners, they mirror the test applied across the board in cases involving
allegations of professional negligence. For example, a similar approach to legal
advice allegedly negligently given was adopted by this Court in Roche v. Peilow
[1985] I.R. 232.
6.6 Thus, the starting point in any professional negligence case requires the
identification of the standard of approach which would have been applied by a
professional of the appropriate standing or skill as the person against whom the
allegation of negligence is made. Accepted practice is highly relevant, although
departure from normal practice may be found not to give rise to negligence where an
equivalent professional might reasonably have followed such a course of action while
exercising reasonable skill. Likewise, following normal practice may not absolve the
professional from a claim in negligence if it can be shown that there was an inherent
defect in the practice which should have been obvious to professionals of the type in
question. Finally, it is emphasised that the question will not come down to one of a
judge deciding which of two or more possible courses of action might have been
considered, often with the benefit of hindsight, to have been preferable, but rather
whether the course of action actually adopted was consistent with the exercise of the
ordinary care which could reasonably be expected of a professional of the type under
consideration.
6.7 In my view, the various aspects of the Dunne test identified by Finlay C.J. can
be reduced to one overarching principle with a number of subsidiary considerations
which impact on the application of that overarching principle in particular
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circumstances. The overarching principle is to be found in point (1); the standard of
approach of a medical professional is to apply a standard appropriate to a person of
equal specialist or general status acting with ordinary care. A failure to act in that
way will amount to negligence.
6.8 Each of the other points made by Finlay C.J. derive from that overall
obligation. Thus, even if the medical practitioner concerned deviated from what
might have been established to be a general and approved practice, the practitioner
concerned will not be found to be negligent unless it can also be shown that no
practitioner of equal status exercising ordinary skill might not also have deviated in
the same way. This represents point (2) of the matters identified by Finlay C.J. and
can be seen to represent the application of the overarching principle to circumstances
where the relevant practitioner has, in fact, deviated from an established practice.
6.9 A similar comment can be made in respect of point (3). Here, Finlay C.J.
makes clear that following an accepted practice may not absolve a practitioner from
negligence if it can be demonstrated that there were inherent defects in the practice
which ought to have been obvious to a professional giving the matter due
consideration. This, again, can be seen to derive from the overarching principle, for a
professional cannot be said to have applied the required standard of approach, being
to exercise the ordinary skill which would be appropriate to a person of the status in
question, if it can also be shown that any such person ought to have realised that the
relevant practice had an inherent defect.
6.10 In addition, a similar observation can be applied to points (4) and (5) as
identified by Finlay C.J. in Dunne. Where there are two or more schools of thought
as to what course of action should be adopted in particular circumstances, it is clearly
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the case that a professional exercising reasonable care may adopt one of them even
though there may be others who would take a different course. These principles, in
effect, represent what might be called the Bolam element of the Dunne test and can
also be seen to derive from the overarching principle.
6.11 Finally, it is important to note that Finlay C.J. went on, at p. 109 of his
judgment in Dunne, to note that the relevant principles ―apply in identical fashion to
questions of diagnosis‖ as well as to questions of treatment. There was no argument
put forward on this appeal that different principles would apply in the case of
screening. There are some passages in judgments of the courts of the United
Kingdom which do seek to make a distinction between treatment cases and diagnostic
cases. It is, of course, the case that the application of general principles to particular
circumstances may give rise to somewhat different approaches, which stem from the
very fact that circumstances may be different. It may very well be the case that
questions concerning deviation from accepted practice, following inherently defective
practices or choice between two respectable professional opinions may be much more
likely to arise in the context of decisions on treatment rather than decisions on
diagnosis (or, indeed, it should be said, screening). But it is not, for example,
impossible to envisage that there might be circumstances where there were two
different approaches to diagnosis in a particular set of circumstances, both of which
had their reasonable adherents. I cannot see that those aspects of the Dunne principles
which deal with such questions would not have equal applicability to a case of alleged
misdiagnosis in such circumstances. There seems to me, therefore, to be strong
grounds for favouring the view adopted by Finlay C.J. in Dunne which does not seek
to distinguish, at the level of principle, between different types of clinical tasks.
However, it does need to be acknowledged that how those general principles apply
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may well be different in particular circumstances. If there are not two schools of
thought about how to go about a particular diagnosis, then the question of the
applicability of those aspects of the Dunne principles which address such questions
(and are at the heart of what are described as the Bolam principles in the United
Kingdom) simply has no application. That is so not because there is a difference in
principle between the approach to treatment cases and other cases, but rather it simply
derives from the fact that, in practice, some of the Dunne principles may have no
application in a particular type of case because they do not arise on the facts.
6.12 No issue arose in these proceedings concerning the adoption of a common
practice which had inherent defects which ought to have been obvious. Likewise,
there was no issue concerning there being two schools of respectable thought or of an
acceptable deviation from common and established practice. The issue of the
standard of approach in this case came down, therefore, to the same issue which
almost inevitably arises in any professional negligence case. What would an ordinary
competent professional of the type and skill of the individual concerned have done,
and did the professional who is sued meet that standard? The test to be applied in this
case is, therefore, no different to the test which would properly be applied in any
professional negligence case. Ultimately, in the particular circumstances of this case,
the question came down to establishing what the approach of relevant professionals to
screening should be and whether it had been demonstrated that the actions of any of
the screeners in this case had fallen below the reasonable standard which
professionals of that type could be expected to have applied, having regard to that
approach.
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6.13 Next, it must be emphasised that the question of the standard of approach
which should be applied by an ordinarily competent professional is ultimately a
matter of fact. It requires expert evidence as to how professionals of the type in
question would generally go about their work and the way in which they would have
dealt with the case in question. It follows that, at least in many cases, the court has no
role in determining the standard to be applied other than to assess the evidence given
by professionals as to the standard to which they themselves regard as being
appropriate to someone of the standing and skill of the defendant. There may be some
scope for the court reaching a further assessment in those limited cases where it is
said that a professional did comply with an accepted practice but where there were
also said to be inherent defects in the practice concerned. As already noted, no such
issues arise in this case.
6.14 It follows that, in a case such as this, a court has no role in imposing a standard
of approach on a professional. Rather, it is the standards of the profession itself, as
demonstrated by the evidence, which impose the standard required.
6.15 I have felt it important to emphasise these factors to ensure that there is no
misunderstanding about the court‘s role in cases such as this. Some public
commentary on the decision of the High Court in this case seems to have ignored the
fact that the role of the court is as I have just described it.
6.16 It seems to me next to be appropriate to address the way in which evidence
was given in the High Court for, as I have pointed out, it is that evidence, given by
professionals themselves, which determines the standard to be applied by the Court to
another expert against whom an allegation of negligence is made.
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6.17 In that context, it is of some importance to emphasise that the analysis of the
Court of Appeal for England and Wales in Penney Palmer was based on the evidence
given by relevant professionals to that court in that case. Further, that analysis was
also expressly put to many of the experts who gave evidence in this case, such that its
terms actually form part of the evidence given, in the sense that witnesses gave their
testimony, at least in part, by reference to the conclusions reached in Penney Palmer.
It is in that context that the term ―absolute confidence‖ came into play. It is of the
highest importance to understand the way in which that term was used by the courts
of England and Wales, in the evidence in this case and, it follows, by the trial judge.
6.18 First, it should be said that it is clear that the term ―absolute confidence‖
derived from what the trial judge in the Penney Palmer proceedings (see Penney,
Palmer and Cannon v. East Kent Health Authority [1999] Lloyd‘s Rep Med 123)
considered to be the agreed evidence of the experts before him. Reviewing the
evidence of the experts, the trial judge held, at p. 127:-
―All five [experts] agreed that if the screener was in any doubt about
what he saw on the slide he should not classify the smear as negative. In
their evidence before me each expressed the point differently but the
conclusion was the same.‖
6.19 The requirement of ―absolute confidence that the smear is within the normal
range‖ before a screener ascribes to it a clear result was said to be the appropriate
practice of a screener, as advanced by one such expert, a standard with which the trial
judge stated that all the other experts were in agreement. Likewise, the adoption by
the Court of Appeal for England and Wales of the same term followed on from the
finding of the trial judge, based, as it was, on the evidence. At para. 40 of his
judgment, Lord Woolf M.R. stated:-
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―The judge's reliance on the absolute confidence test is understandable. The
phrase 'absolute confidence' was no more than shorthand for the approach
which on examination of the transcripts it seems to us all the experts
endorsed.‖
6.20 It follows that the adoption of the ―absolute confidence‖ test in England and
Wales stemmed from an assessment of evidence given by relevant professionals on
both sides of the Penney Palmer case. It was not itself a court imposed obligation but
one which, on the evidence, the trial court assessed as being the agreed position of
experts in the field.
6.21 Turning then to the evidence before the High Court in this case, it is important
to note that the question of there being potentially a difference between the
appropriate standard applied in the United Kingdom and that applied in the United
States did form some part of the debate on the evidence. It was in that context that
evidence was given of the fact that an ―absolute confidence‖ test was applied in the
United Kingdom (including Northern Ireland) and was also the subject of discussion
with some of the United States witnesses called on behalf of the defendants.
6.22 Dr. McKenna, a consultant cellular pathologist based in Northern Ireland who
gave evidence on behalf of the Morrisseys, was referred to the Penney Palmer
authority during his examination in chief before the High Court on 30 January 2019:-
―Q. Can I just ask you about something… it‘s English decision called
Penney, Palmer and Cannon v. East Kent Health Authority and it‘s a
decision of the English Court of Appeal of 16th December 1999. Are you
familiar with that?
A. I am very familiar with it, yes.
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Q. There‘s just one particular thing said in that judgment I just want to draw
attention to at this stage and it was that the English Court of Appeal said
that all the experts endorsed the ‗absolute confidence‘ test, under which
if there is any doubt in the mind of the cytoscreeners as to whether the
slide was normal, he or she should not classify it as negative. Now, what
exactly is the English Court of Appeal saying there? Like, what is the
absolute confidence test, what does that mean?
A. I think what it‘s saying is that unless you are absolutely – and that is
100% -- convinced that the slide is negative, do not call it negative.
Q. So, in other words, what I am getting at here is that when a cytoscreeners
has a slide in front of him or her, is there any acceptable level of doubt
if you have any doubt, is any doubt actually acceptable?
A. No, you can only you should only report something as negative when
you‘re absolutely certain – in other words, no doubt.‖
6.23 When the ―absolute confidence test‖ was put to Dr. McKenna once again the
following day, under which ―if there is any doubt in the mind of a cytoscreeners as to
whether the slide was normal he or she should not classify it as negative‖, he stated
the following:-
―A. And I fully agree with that statement, and in fact those are the very
words that I always use to my staff; if you have any doubt, then pass it
on. Do not call it negative.‖
6.24 Ms. Tan, a cytotechnologist based in New York who also gave evidence on
behalf of the Morrisseys, stated that there is no tolerance for any doubt in the
assessment of the normality of the cells. The evidence tendered by the experts
appearing on behalf of Medlab also indicated their agreement with the ―absolute
confidence‖ standard. Prof. Pitman, the lead consultant cellular pathologist for
Medlab, agreed that a cytotechnology must have absolute confidence that a smear is
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normal before reporting it as normal. Ms. Stowe, a cytotechnologist based in
Wisconsin, also had the following exchange during cross examination:-
―Q. Now let‘s be clear about this. Do you agree with me that the test is that a
cytotechnologist or a cytoscreeners must have absolute confidence that
there is no abnormality on that slide to pass it?
A. I agree with that.‖
6.25 The experts who appeared on behalf of Quest, both based in the United States,
expressed some reservation with the ―absolute‖ nature of the standard, however. Prof.
Austin, a consultant cellular pathologist based in Pennsylvania, expressed the
following in an exchange with the trial judge:-
―Q. MR. JUSTICE CROSS:Do you accept the suggestion that the
cytoscreeners must have absolute certainty to pass cells as normal?
A. That's my understanding of the decision in the UK.
Q. MR. JUSTICE CROSS: Well, is it your view?
A. The cytotechnologist should be confident if a slide is negative or if it is
possibly abnormal to refer it to the pathologist.
Q. MR. JUSTICE CROSS: And you accept that, do you?
A. Yes, Sir."
6.26 While Prof. Austin was under cross-examination, the following exchange in
relation to the Penney Palmer authority took place:-
―Q. …You see, that decision in the UK, the Penney, Palmer and Cannon v.
East Kent Authority, did you know that experts from The United States
gave evidence in that case?
A. No, I didn't know that.
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Q. All right. Did you know that they all agree, all the experts actually
agreed in that case that the test is "the absolute confidence" test? Did you
know that?
A. No. Do you know who the US experts were?
Q. I don't, I am afraid, no.
A. Very good.
Q. So what I just want to be clear about is this, because we are dealing with
a slide which is in a laboratory in Grand Rapids in Wyoming in August
2009; are you saying that the cytotechnologist who looked at that slide
has a different test than the absolute confidence test?
A. That question would have to be answered by someone from Quest
because I wasn't there, you know, instructing the cytotechnologist in the
Quest facility.
Q. MR. JUSTICE CROSS: When you said that a competent screener when
looking at this slide in 2009 might or could have reported it as normal...
A. Yes, Sir.
MR. JUSTICE CROSS: ...were you saying that that could have been done by a
competent screener assessing his or her professional view and coming to
a decision on the balance of probabilities or were you saying that a
competent screener could say with absolute confidence that it was
normal?
A. I can certainly say with confidence. To be honest, this idea of absolute
confidence, I am kind of struggling with, because it's not...
Q. MR. JUSTICE CROSS: It is not something you...
A. It is not something we routinely deal with. So I am not quite sure how to
say the difference between 'confidence' and 'absolute confidence'.‖
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6.27 After the trial judge‘s intervention, the cross-examination continued and Prof.
Austin appeared to ultimately express agreement with the standard of ―absolute
confidence‖, notwithstanding his previous reservations:-
―Q. Now what I just want to be very clear about here, I want to be clear that
the standard that applied in Grand Rapids in Wyoming in August 2009,
all right, that‘s what we are dealing with here in this case, all right. Now
are you suggesting that a cytoscreener, when he or she is looking at a
slide, should be anything other than absolutely confident if they are
going to pass that slide as being negative?
A. No, Sir.
Q. So we are in agreement then?
A. Yes, Sir."
6.28 Mr. Feit, a cytotechnologist based in Wisconsin, also expressed misgivings in
relation to the ―absolute‖ nature of the confidence required:-
―A. Well, this is something that -- so absolute confidence for me, as a
scientist, absolute confidence is very hard to have because, I mean,
generally in science, you generally say the evidence supports this or
doesn't support that.
Q. MR. JUSTICE CROSS: And there can be levels of support, can't there?
A. Yes, yes, but I don't think -- I mean, you probably wouldn't even have --
I mean, a physicist probably wouldn't even say he has absolute
confidence in the law of gravity because....
Q. MR. JUSTICE CROSS: It'd be pretty close.
A. Pretty close, probably, pretty close. But I mean, in science, it's just, you
know, we are taught not to do that because science moves forward
through new studies, new evidence, you know, and so absolute
confidence is something I just, it's very difficult for me. I know it
probably has a different meaning in law.
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44
Q. MR. JUSTICE CROSS: Yes.
Q. MR. TREACY: Yes.
A. And I don't understand that, so.‖
6.29 From that review of the evidence, it is first clear that there was evidence that
the actual standard applied by relevant professionals in the United Kingdom was one
of ―absolute confidence‖. Given some of the ―doomsday‖ predictions which followed
on from the judgment of the High Court in this case, I do feel it necessary to say that
at least some of the more extreme comments are very hard to reconcile with the fact
that there was clear evidence that such a standard is actually applied in the United
Kingdom generally and, to the particular knowledge of an important expert witness, in
Northern Ireland specifically, without the screening systems in those countries
becoming unworkable.
6.30 It is also absolutely clear that, while there may have been some quibbling on
the part of witnesses called on behalf of the defendants with whether the term
―absolute‖ was appropriate, all of the witnesses agreed that any doubt about whether
what is seen on a slide is normal must not allow the case to be reported as a clear
result. Again, it must be emphasised that imposing such a standard of approach does
not derive from the Court but rather from an assessment of the evidence given on all
sides concerning the standard actually applied by professionals in the area in question.
It is those experts, not the Court, who identified the standard expected of a normally
competent screener as being one which precludes giving a clear result in a case of
doubt.
6.31 Next, it is perhaps of particular importance to note again that the trial judge in
this case clearly accepted that it was possible for competent screeners, applying an
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appropriate standard of approach, to come to different views about whether there was
even a doubt as to whether a clear result could be given. It would, indeed, have been
difficult for the trial judge to have come to any different view having regard to the
evidence given in respect of the United Kingdom‘s screening programme (which is
accepted as being one of the very highest standard), where, notwithstanding those
high standards, reviews suggest of a different view to that of the original screener
being taken in a significant proportion of those cases where a diagnosis of cancer
actually followed.
6.32 But if any proof were needed of the practical acceptance by the trial judge of
the fact that there could be genuine differences of opinion between competent
screeners, even applying a no doubt test, this can be found in the very finding of the
trial judge in respect of the claim for negligence against Medlab relating to the
reading of the 2012 slide. It will be recalled that, while the trial judge found Medlab
negligent in respect of the adequacy issue, the trial judge was not satisfied that it had
been demonstrated that Medlab was negligent in respect of the manner in which the
screener did not identify any suspicious material on the slide in question. The trial
judge came to that view notwithstanding the fact that there was expert evidence,
tendered on behalf of the Morrisseys, which suggested that a competent screener
would have identified the slide as problematic. It follows that this case itself provides
a very clear example of how, even applying what the trial judge considered to be an
―absolute confidence‖ test, there was nonetheless room for a finding, contrary to at
least some of the evidence, that this was the sort of case where competent screeners
could come to different views and where there was, therefore, no negligence. The
suggestion, therefore, that the trial judge was applying an ―absolute confidence‖ test
in a way which effectively meant that every error (even with the benefit of hindsight)
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must result in a finding of negligence is demonstrably wrong and would clearly be
seen to be such to anyone who had taken the trouble to read the judgment. If the trial
judge were applying the test in that way then it is impossible to see how he could have
found against the Morrisseys in respect of the allegation that Medlab had negligently
read the slide, as opposed to the finding which he actually made, which was to the
effect that Medlab was only negligent in treating it as adequate.
6.33 Finally, it is necessary to touch on a question on the standard of approach issue
in respect of which there was some debate at the hearing. That debate concerned the
use of the term ―test‖ in relation to ―absolute confidence‖. Counsel for the Morrisseys
accepted that the Dunne test was the appropriate test and was anxious not to be heard
to suggest that Penney Palmer provided a different legal test. In that view, I consider
counsel to be correct. Penney Palmer does not establish any different legal test.
Rather the term ―absolute confidence‖, which derives from Penney Palmer, can be
seen as no more than a synopsis of the evidence given in that case and not as
representing any different or separate test. However, it is worth noting that, in the
written submissions filed in the High Court, counsel on behalf of the Morrisseys did
describe it as ―the absolute confidence test‖. That may well explain why the trial
judge also described it as a ―test‖ in his judgment. However, it is clear that it does not
represent a separate or different legal test. The only test for the standard of approach,
at least so far as relevant in this case, is based on evidence as to the standard actually
applied by competent professionals in the area. In describing that standard, based on
the evidence, it is important not to get too hung up on the words used, for to do so can
create an erroneous impression that the language used has a status amounting to a
legal test.
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6.34 Indeed, it may well be that the introduction of the term ―absolute confidence‖
into the debate has created more confusion than clarity. Ultimately, the overall
question which a court has to address in a case such as this is as to whether a
reasonably competent screener could have given a clear result, both having regard to
adequacy and the absence of suspicious material. On the evidence in this case, it
seems clear that the standard of approach to be adopted by a screener in such
circumstances is that a screener should not give a clear result if they have any doubt
about either adequacy or the absence of suspicious material.
6.35 That is the only test to be applied. Therefore, the question for the court‘s
assessment is whether, on the evidence in this case, it has been shown on the balance
of probabilities that a competent screener could not have concluded that there was no
doubt about it being appropriate to give a clear result.
6.36 It does not seem to me that there is any basis for suggesting that the trial judge
approached this case in any other manner.
6.37 It may be useful, at this stage, to also comment on the role of expert evidence.
For the reasons already addressed, it is clear that, in any case of dispute, it will be
necessary to tender expert evidence as to what the appropriate standard of approach
should be for a professional of the standing and skill of the one against whom an
allegation of negligence is made. But expert evidence may play another role. It may
assist the court in deciding on the facts of the individual case whether the relevant
professional has lived up to whatever standard of approach has been established.
Expert evidence of that type may play a role in many types of negligence actions.
6.38 For example, in the case of an industrial accident, expert evidence may be
tendered to establish the appropriate standards which should be applied by employers
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in the industry concerned. But expert evidence might also be tendered to assist the
court in deciding whether, as a fact, the accident occurred in a way which could be
said to be attributable to a failure to apply those standards. For example, an engineer
might be called to give evidence about whether it was likely that an accident could
have happened in the way in which it was described by a witness. It might be said
that the workings of whatever industrial process was involved would not make it
possible for an accident to have occurred in a particular way. Similarly, medical
evidence might be tendered as to whether injuries actually suffered were or were not
consistent with an accident having occurred in a way described by a witness. In those
latter cases, the experts are not giving evidence as to the standards to be applied but
rather are giving evidence which may assist the court in conducting its role of
deciding the facts on the balance of probabilities.
6.39 It is worth emphasising that, where expert evidence is tendered in that latter
respect, there is no place for the application of the Bolam test or, in the Irish context,
the third item of the Dunne test. The experts may express different views about the
likelihood or otherwise of something having happened in a particular way or the
likelihood or otherwise of a competent professional having acted in a particular way.
But when such views are expressed, they only represent evidence to assist the court in
deciding on the facts. The court must choose between any such competing evidence
and reach an overall assessment on the facts on the basis of all the evidence tendered.
In such a case, the court is not involved in identifying that there are two respectable
schools of thought about the proper course of action to be adopted, such that a
professional will be absolved from liability if following either. Rather, in such a case
the expert is simply tendering evidence which may be useful, to a greater or lesser
extent, in assisting the judge to reach a conclusion on the facts. Such evidence may
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not even be absolutely necessary in every case. To take but a simple example, it
might be established in the circumstances of a particular negligence claim that it was
accepted practice that a doctor should have taken a particular course of action if a
patient had a temperature above a certain level. Whether the patient actually had a
temperature above that level when measured by the relevant doctor is a question of
fact. There might be competing evidence. A doctor might give evidence of one
reading, whereas a nurse who was present might suggest that the doctor‘s evidence
was incorrect. In such a case, the court would have to make a finding of fact based on
that evidence in circumstances where expert evidence would be of no assistance.
However, where the facts involve difficult questions on which expertise may bear,
then it will, of course, often be useful for the court to have the benefit of such expert
evidence in assessing the facts.
6.40 That being said, I would also accept that the practical approach adopted in
Penney Palmer may well provide a useful guide to the way in which a court should
approach its task in circumstances of this case. Ultimately, however, the question is
as to whether a competent screener could have given a negative, or clear, result. The
first question for this Court is, therefore, as to whether there was evidence to support
the trial judge‘s conclusion that a screener must not give a clear result when in any
doubt. On the evidence, it was undoubtedly accepted by all witnesses that a
competent screener must not give such a result if they had any doubt as to the
presence of suspicious material or as to the adequacy of the material on the slide. It
follows that the second question, in respect of the slide tested by Quest, was as to
whether there was evidence and analysis to support the finding that a competent
screener could not have formed the view that there was no doubt but that the slide in
question was clear. Likewise, the second question in respect of Medlab was as to
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whether there was evidence and analysis to support the finding that a competent
screener could not have formed the view that the sample was adequate.
6.41 Those issues obviously involve considering the slides themselves, potentially
with the benefit of expert evidence, and considering whether any element of those
slides was such that it should not have left a competent screener without a doubt.
Ultimately it does not seem to me that the approach of the trial judge in that regard
was materially different to the approach which I have just outlined. On that basis, it
does not seem to me that the standard of care issue itself could provide any basis for
allowing an appeal from the decision of the trial judge in this case. In those
circumstances, it is next necessary to turn to the two connected issues, which concern
whether the trial judge failed, as both Quest and Medlab argue, to properly engage
with their case on the respective second issues just mentioned.
7. Did the Trial Judge fail to engage with the Defence Case?
7.1       While the specific issues raised by, respectively, Quest and Medlab were
different and depended very much on the factual issues arising in the separate cases as
against them, there is, nonetheless, a similar approach adopted by both of these
defendants at the level of principle.
7.2       While it will be necessary, therefore, to turn to the specific issues which arise
in the different case made against both of these defendants, it is appropriate to start
with some general observations which are applicable to both sets of issues.
7.3       The legal position is clear. The classic statement of the correct approach to be
taken by an appellate court in respect of findings of fact made at first instance is as set
out by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at pp. 217-218. In particular,
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it was held that an appellate court is bound by the findings of fact made by the trial
judge when they are supported by credible evidence. Further, McCarthy J.
emphasised the importance of a clear statement by the trial judge of his findings of
primary fact, the inferences to be drawn and the conclusion that follows.
7.4       This latter obligation on the trial judge underpins the case law which
subsequently developed on the question of the appropriate engagement on the part of
a trial judge with the competing arguments of the parties to litigation. Any party is
entitled to a judgment which states why the party concerned won or lost. In Doyle v.
Banville [2012] IESC 25, [2018] 1 I.R. 505, this Court held that, to this end, it was
important that the judgment of the trial court engages with the key elements of the
case made by both sides and provides a reasoned conclusion as to why the case on the
facts made by one or other side is preferred. In my judgment in that case, a
distinction was drawn between circumstances in which there may have been a
significant and material error in the way in which the trial judge reached a conclusion
as to the facts, in respect of which an appellate court can and should intervene, and a
case where the trial judge was simply called on to prefer one piece of evidence to
another and does so for a stated and credible reason. In the latter case, it is not the
function of the appellate court to revisit the trial judge‘s findings.
7.5       This obligation on the trial judge to engage with and adequately address the
competing arguments of the parties on the facts was restated by this Court in Wright v.
AIB Finance & Leasing and ors [2013] IESC 55 and Ulster Bank v. Healy
[2015] IESC 106. Importantly, in Leopardstown Club Ltd. v. Templeville Developments Ltd
[2017] IESC 50, [2017] 3 I.R. 707, MacMenamin J. set out in clear terms the
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approach to be taken by an appellate court when reviewing the engagement of the trial
judge with the arguments of the parties to litigation, at paras. 109-111:-
―109. Save where there is a clear non-engagement with essential parts of the
evidence, therefore, an appeal court may not reverse the decision of a
trial judge, by adverting to other evidence capable of being portrayed as
inconsistent with the trial judge's primary findings of fact.
110. ―Non-engagement‖ with evidence must mean that there was something
truly glaring, which the trial judge simply did not deal with or advert to,
and where what was omitted went to the very core, or the essential
validity, of his findings. There is, therefore, a high threshold. In effect,
an appeal court must conclude that the judge's conclusion is so flawed,
to the extent that it is not properly ―reasoned‖ at all. This would arise
only in circumstances where findings of primary fact could not ―in all
reason‖ be held to be supported by the evidence (see Henchy J. in V.C. v.
J.M. and G.M. [1987] I.R. 510, at p. 523, quoting his earlier judgment in
Northern Bank Finance v. Charlton [1979] I.R. 149). ―Non-
engagement‖ will not, therefore, be established by a process of
identifying other parts of the evidence which might support a conclusion
other than that of the trial judge, when there are primary facts, such as
here. Each of the principles in Hay v. O'Grady [1992] 1 I.R. 210 is to be
applied.
111. The task faced by the judges of our appeal courts is already too onerous.
But the task would be made yet more onerous were appeals to be
reduced to a piece-by-piece analysis of the evidence, in an effort to
show, on appeal, that the trial judge might have laid more emphasis on,
or attached more weight to, the evidence of one witness, or a number of
witnesses, or one document, or a number of documents, rather than
others on which he or she relied.‖ (emphasis included in original)
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7.6       In the context of that case law, it is, however, important to emphasise a
number of features which are of some relevance to the issues which arise on this
appeal.
7.7       First, it is clear that what is spoken of as a lack of engagement in those
authorities relates not so much to the way in which a trial judge conducted the
proceedings but rather to the way in which the trial judge determined the issues in the
judgment. A failure to engage, in the context in which it is used in the relevant case
law, clearly refers to the failure on the part of a trial judge to set out the reasons why
central or important aspects of the case of one or other party on the facts were not
accepted.
7.8       I did not understand counsel on any side of this case to be in the least way
critical of the way in which the trial judge conducted these proceedings. Even a
general reading of the transcript makes it clear that the trial judge was fully involved
with the evidence and the issues and, in that sense, was clearly engaged with the case.
However, that is not the sort of engagement to which the case law referred to earlier is
directed. Rather, the criticism suggested both by Quest and by Medlab is directed to
the question of whether the trial judge gave adequate reasons in his judgment for
rejecting what are said to be central aspects of their respective cases on the facts.
7.9       Second, it is worth adding that it is clear from that case law that it is far from
sufficient for a party seeking to appeal a decision of a trial court to search through the
undergrowth of the pleadings and evidence so as to find some tangential or minor
aspect of the case which is not expressly referred to in the judgment. The test,
therefore, involves, as MacMenamin J. pointed out in Leopardstown Club, a high
threshold which requires the court to address the question of whether, taking that
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party‘s case as a whole, can it be fairly said that the trial judge has significantly failed
to adequately address the reasons for rejecting the appellants‘ case on the facts?
7.10       Finally, before going on to consider the specific issues raised by the respective
defendants, it is also of importance to emphasise that it was accepted by both Quest
and by Medlab that there was evidence on which the trial judge could have concluded
that the facts were as alleged by the Morrisseys. In other words, there was evidence
that a competent screener would, in the case of Quest, not have given a clear reading
and, in the case of Medlab, not considered the slide adequate. This is not the sort of
case, therefore, where the primary issue identified in Hay v. O’Grady arises. In most
cases in which factual decisions are sought to be overturned, it is asserted that there
was no evidence on which the decider of fact could have reached a particular adverse
conclusion. This is not such a case. Rather, this case is solely concerned with
whether there was sufficient engagement in the judgment with the case on the facts
made by the two laboratories so as to give a reasonable and broad explanation as to
why what were said to be important elements of their respective defences on the
merits did not find favour.
7.11       Against those general observations, it is necessary to turn separately to the
issues raised by, respectively, Quest and Medlab.
8. The Quest Case
8.1       It was argued on behalf of Quest that there was a failure on the part of the trial
judge to engage with its case in respect of the interpretation of the 2009 slide, which
was to the effect that a reasonably competent cytoscreener could have reported the
2009 slide as clear or negative. Quest submits that the trial judge reached two
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erroneous conclusions in relation to its U.S. expert witnesses, resulting in a failure on
the part of the High Court to engage with the cumulative effect of their evidence.
8.2       First, as previously referred to, the trial judge considered that the evidence
tendered by American expert witnesses called by Quest should be treated with caution
and as being ―subconsciously affected‖ by the Guidelines issued by the American
Society of Cytopathology and its view on the reading of ASC-US and AGUS cells.
Quest submitted that this conclusion was not supported by evidence and that at no
point in these proceedings was it submitted that the Guidelines should set the legal
standard for negligence in cytoscreening. While Quest‘s expert cytotechnologist, Mr.
Feit, and its expert pathologist, Prof. Austin, were members of the American Society
of Cytopathology, it was submitted that their conclusions as to the presence of
abnormalities on the 2009 slide were derived from honestly held opinions rather than
bias towards the categories denoting borderline abnormalities arising from the content
of the Guidelines.
8.3       Second, Quest argued that the trial judge also erred in concluding that Mr. Feit
and the Quest cytoscreeners reached their conclusions as to the 2009 slide on the
balance of probabilities, in circumstances where, it was submitted, there was no
evidence that they adopted this standard.
8.4       As a result of these errors, Quest submitted that the conclusions of the trial
judge in respect of the interpretation of the 2009 slide contained no real engagement
with the evidence of Prof. Austin and Mr. Feit and that there was no proper
explanation as to why the evidence of the Morrisseys‘ expert witnesses was preferred
over their own.
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8.5       Furthermore, it was argued that there was a failure to engage with the evidence
adduced by Quest of the blind review which Mr. Feit coordinated of the 2009 slide.
This review was submitted to have reproduced the original screening conditions
insofar as possible in order to assess how the reasonably competent cytoscreeners
would interpret a slide. The 2009 slide was reviewed by eight cytoscreeners,
alongside nine other slides, and the screeners did not know which slide was of
interest, nor by whom they were instructed. Six out of eight screeners deemed the
2009 slide negative, and two made findings of abnormalities.
8.6       Quest submitted that the trial judge‘s approach to the blind review was flawed.
While it was accepted that Cross J. had engaged at a high level with some of the
―hazards‖ said to be associated with blind reviews in general, the trial judge was said
not to have engaged at all with the methodology or results of the Quest blind review
and not to have explained how its results can be consistent with the finding of
negligence which was arrived at. This occurred, Quest submitted, in circumstances
where the expert witnesses on behalf of the Morrisseys also accepted the merits of
blind review. In addition, it was submitted that the trial judge expressly refused to
consider the evidence of Prof. Roese, thus failing to appreciate the need to mitigate
hindsight bias in a cytology review.
8.7       Finally, Quest submitted that there was also a failure on the part of the trial
judge to engage with their case in respect of causation. The cumulative effect of the
evidence adduced by Quest in relation to causation was said to point to the probability
that neither squamous abnormalities nor squamous pre-cancer was present in 2009.
8.8       In this regard, it was submitted first that the trial judge erred in his conclusion
that a rescreening or colposcopy in 2009 would have revealed squamous pre-cancer
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cells which ultimately developed into the cancer with which Ms. Morrissey had been
diagnosed in 2014. This conclusion was based on what Quest argued was an
inaccurate and unsubstantiated assertion made by Prof. Wells that both glandular and
squamous pre-cancer existed in 2009, whereas the evidence was said to indicate that
only glandular abnormalities may be identified from the 2009 slide.
8.9       In addition to this error, counsel for Quest argued that the trial judge failed to
engage with the aggregate evidence in relation to the 2009 and 2012 slides and the
2014 smear, all of which returned negative results, and the 2014 trachelectomy
specimen. This specimen, acquired during the radical trachelectomy procedure
performed on Ms. Morrissey in 2014, was said by Prof. Austin to have indicated
limited evidence of CIN3 cells, and its result was not referred to in the judgment of
the High Court. Prof. Austin gave evidence on behalf of Quest that the features of
Ms. Morrissey‘s case suggested that Ms. Morrissey‘s cancer had progressed more
rapidly than usual. This was accompanied with evidence to the effect that cancer may
develop more rapidly amongst some younger women. It is submitted that the trial
judge failed to engage with the totality of this evidence when reaching his conclusion
on causation.
8.10       In response to the submissions of Quest in relation to the evidence of its U.S.
expert witnesses, counsel for the Morrisseys submitted that, on the basis of the
evidence which had been adduced in respect of the influence of the Guidelines, the
trial judge was entitled to form his assessment of the appropriate weight to be given to
the evidence of Prof. Austin and Mr. Feit In particular, counsel referred to the
affirmation to comply with the Guidelines which other U.S. expert witnesses, who
were members of the American Society of Cytopathology, confirmed in evidence that
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they had given. Further, counsel relied on the evidence of Dr. McKenna to the effect
that borderline categories of abnormal cells cannot be underestimated and can be
indicative of high-grade abnormalities on further investigation.
8.11       Further, it was argued on behalf of the Morrisseys that the trial judge was
entitled to assess the appropriate weight to be given to the expert evidence in relation
to blind reviews and hindsight bias. Evidence was adduced on behalf of the
Morrisseys in relation to the inadequacies of blind reviews generally and Dr.
McKenna further stated in evidence that the blind review of the 2009 slide had been
compromised as the slide had markings on it and therefore was not a true reproduction
of what was before the original screener. Prof. Roese, it was submitted, had no
experience in cytology screening and did not engage with the facts of this case in
giving evidence, and counsel argued that the trial judge was entitled to determine that
he did not require the assistance of Prof. Roese in respect of the impact of hindsight
bias.
8.12       Finally, in respect of the trial judge‘s analysis as to causation, counsel on
behalf of the Morrisseys submitted that there was no error in his finding that
squamous pre-cancer was likely to have been in existence by 2009 and that this would
have been identified following a rescreening and would, as a matter of probability,
have led to a referral for a colposcopy had the 2009 slide been correctly interpreted.
This finding was based on the evidence of Prof. Shepherd that the lesion was likely to
have developed over an eight to twelve-year period and his evidence to the effect that,
where glandular abnormalities are found it is highly likely that squamous
abnormalities will co-exist, as the same oncogenic stimulus is affecting the stem cells
of the cervix, which differentiate along either squamous or glandular lines.
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8.13       Further, counsel for the Morrisseys denied that there was a failure to engage
with the totality of the evidence adduced by Quest. That borderline abnormalities
were identified on the 2009 and 2012 slides, it was submitted, did not lead to the
conclusion that there were no high grade abnormalities or precancerous lesions in
existence at that time. Prof. Wells gave evidence that there was not always a close
correlation between the cytology and the subsequent histopathology so that cytology
screening might show minor abnormalities whereas histopathology may often show
more serious disease. The negative result of the 2014 smear, which was taken
following Ms. Morrissey‘s cancer diagnosis, was said by Prof. Shepherd to be readily
explicable as it is said not to be uncommon that smears taken from a cancerous cervix
are obscured by the presence of inflammatory cells, blood and pus. In addition, it was
submitted that there was no inconsistency between the findings of the 2014
trachelectomy specimen and the abnormalities identified on the 2009 slide. Prof.
Wells gave evidence that any glandular abnormality could have been overgrown by
the squamous cancer.
8.14       Finally, it was argued on behalf of the Morrisseys that the trial judge was
entitled to dismiss Quest‘s contention that Ms. Morrissey‘s cancer was one which
rapidly developed, particularly in light of the evidence of both Prof. Wells and Prof.
Shepherd to the effect that the trachelectomy specimen indicated that Ms. Morrissey‘s
cancer was a moderately differentiated one and did not bear the characteristics of an
aggressive or rapidly growing cancer. Both experts also rejected the proposition that
cancer develops more rapidly amongst younger women.
8.15       Before leaving the question of causation, I should make one point which is
applicable to the case against both Quest and against Medlab. It was accepted by
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counsel on all sides that this case proceeded before the High Court on the basis that
the task of the trial judge was to determine causation as a matter of probability. In
other words, was it more probable than not that, had any relevant negligence not
occurred, a benign or improved outcome would have ensued. Counsel agreed that no
case had been made which suggested that, following the jurisprudence identified in
Philip v. Ryan [2004] IESC 105, [2004] 4 IR 241, it might, arguably, be appropriate
to assess causation on the basis of the likelihood or otherwise of a benign or improved
outcome and to measure damages accordingly. There certainly are some types of
cases where the proper approach is not to decide what consequences would have
resulted from the absence of negligence by determining that question on the balance
of probabilities, such that full damages would be awarded if there was a slightly
greater than 50% chance of a benign or improved outcome but no damages at all
would be awarded if there was a slightly less than 50% chance of such a result.
Rather, the approach identified in Philip v. Ryan is that, in the types of cases to which
it applies, it is appropriate to award damages which are broadly proportionate to the
likelihood of a benign or improved outcome, so that the relevant damages would
approximate to full damages if there is a very significant likelihood of a benign or
improved outcome in the absence of negligence but that limited but proportionate
damages would be awarded even if it there was a less than 50% probability of a
benign or improved outcome, but some realistic possibility of such a consequence.
8.16       I would decline, therefore, to express any view as to whether cases of this type
might fit in the jurisprudence identified in Philip v. Ryan. I feel it appropriate to make
that comment lest, by not dealing with the issue, it might be later asserted that I had,
by implication, agreed that the approach adopted in this case was necessarily the
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correct one. That is an issue which I would leave to any case in which the issue was
fully fought.
9. The Medlab Case
9.1       The first issue raised by Medlab is in respect of the trial judge‘s determination
of the factual question of what was to be seen on the 2012 slide. This, the trial judge
held, in accordance with the guiding principles set out in Penney Palmer, was to be
assessed prior to any consideration of the standard of care required under the Dunne
test. On the evidence given by Dr. Madrigal, his computer-generated analysis of the
2012 slide identified over 35,500 squamous cells. It was Medlab‘s case that on this
evidence there were more than 5,000 cells on the slide, as required under the Bethesda
criteria, and therefore the slide was, as a matter of fact, adequate. Thus, in
circumstances where Medlab‘s cytoscreeners arrived in 2012 at what is submitted to
be a correct conclusion as to the adequacy of the slide, it was argued that there could
not have been a finding of negligence by reference to the particular method used to
arrive at that result.
9.2       Medlab contended that, in his judgment, the trial judge had accepted as a fact
that there were over 35,500 cells on the 2012 slide. While not strictly falling under
the ―failure to engage‖ jurisprudence, it was submitted that he erred in subsequently
dismissing Dr. Madrigal‘s evidence as to the alternative method of counting cells as
―irrelevant‖ and in failing to answer the question as to how many cells were on the
slide. Medlab further argued that the trial judge erred in concluding that, in the event
of any doubt as to adequacy, the slide must be examined using the ThinPrep method,
because Medlab was held to be obliged under the terms of its contract with Cervical
Check to do so. The terms of this contract, Medlab submitted, cannot be relied on in a
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negligence claim. It was also argued that the contract, in any event, obliged Medlab to
test in accordance to the Bethesda System, which method was said not strictly to
require a formal adequacy test to be carried out in any particular manner.
9.3       Medlab further submitted that there was a lack of engagement on the part of
the trial judge with its case in respect of the proper approach to be applied by a
reasonably competent cytoscreener when assessing the adequacy of a slide. In the
first instance, it was submitted that the evidence adduced by Medlab demonstrated
that the Bethesda System does not strictly require a formal adequacy test to be carried
out and that applying the Dunne principles, the reasonably competent screener could
have found the 2012 slide to be adequate without conducting a formal assessment.
Two expert cytoscreeners, Ms. Frasch and Ms. Drew, both gave evidence on behalf of
Medlab that they had conducted a blind review of the 2012 slide and had assessed it
as adequate without considering it necessary to carry out a formal adequacy review.
Ms. Tan, the Morrisseys‘ expert cytoscreener, also gave evidence that the 2012 slide
could have been passed for adequacy without a formal assessment. Medlab argues
that this evidence was not properly addressed by the trial judge when, at paras. 123
and 124 of his judgment, he concluded that no screener of equal status or skill acting
with ordinary care would have failed to subject the slide to an appropriate test as to
adequacy and made the assumption that the two screeners who originally reviewed the
slide in 2012 did not perform a formal adequacy test.
9.4       Further, and in the alternative, Medlab submitted that the trial judge‘s finding
that, as a matter of probability, a formal test would have resulted in a finding of
inadequacy, made at para. 125 of his judgment, cannot be reconciled with the
evidence of Medlab‘s expert cytoscreener, Ms. Stowe, who conducted a formal
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adequacy review in accordance with the Bethesda system and found the slide to
contain a sufficient number of cells.
9.5       Medlab also argued that the trial judge failed to engage with the evidence on
causation which was tendered by expert witnesses on behalf of both Quest and
Medlab. The trial judge concluded that, had Ms. Morrissey been referred for a repeat
smear following a finding of inadequacy in respect of the 2012 slide, it would have
resulted in colposcopy which would have revealed the existence of squamous pre-
cancer cells. This finding, it was submitted, was reached in the absence of any
evidence as to the existence of glandular pre-cancer cells in the 2012 slide or in the
2014 trachelectomy specimen, which would have indicated the likely coexistence of
squamous pre-cancer. Further, this conclusion was said to have been reached without
addressing the evidence adduced by Quest which indicated that Ms. Morrissey‘s
might have been a particularly rapidly-developing form of cancer.
9.6       In response to Medlab‘s arguments, counsel on behalf of the Morrisseys
submitted that the findings of the trial judge in relation to the adequacy of the 2012
slide were supported by credible evidence. First, it was said that the factual question
as to adequacy to be determined by the trial judge related to whether there was a
sufficient number of well-visualised cells on the slide. In accordance to the method
prescribed by the Bethesda system, the slide must contain 5,000 ―well-visualised‖
cells and be ―satisfactory for evaluation‖. These cells must be well-visualised for the
cytoscreener operating in laboratory conditions, it was contended, rather than for a
computer conducting an automated analysis. Both the terms of Medlab‘s contract
with Cervical Check and the ThinPrep manufacturer‘s specifications require
compliance with the Bethesda System. Further, the Morrisseys rely on the evidence
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of Dr. McKenna to the effect that an alternative method of testing adequacy, such as
that employed by Dr. Madrigal, has yet to be clinically shown to be of the highest
standard and proven to be as safe as the prescribed method that is being departed
from.
9.7       In addition, counsel on behalf of the Morrisseys referred to the evidence given
by a number of expert witnesses to the effect that the slide was not adequate for
cellularity, including that of Prof. Pitman, who appeared on behalf of Medlab.
Counsel for the Morrisseys also pointed out that Ms. Tan had given evidence that she
reported the sample as adequate but only because she had identified abnormalities on
the slide.
9.8       The submissions of the Morrisseys in respect of the trial judge‘s findings in
relation to causation are as stated in full above. It is submitted that the trial judge‘s
finding that a colposcopy carried out in 2012 would have been likely to identify
squamous pre-cancer was based on credible evidence. In particular, counsel for the
Morrisseys referred to the evidence of Prof. Shepherd to the effect that the cancerous
cells were likely to have been developing over an eight to twelve-year period and that,
on the balance of probabilities, they progressed to an invasive cancer in early-mid
2013. Prior to this, Prof. Shepherd stated, a high-grade lesion would have been in
existence. Further, counsel for the Morrisseys relied on the evidence of Prof.
Shepherd to the effect that where glandular abnormalities are found, it is highly likely
that squamous abnormalities will co-exist, as the same oncogenic stimulus is affecting
the stem cells of the cervix.
9.9       Having set out in some detail the precise contentions put forward both by
Quest and by Medlab concerning what was said to be a failure of the trial judge to
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engage adequately in his judgment with certain aspects of their cases on the facts, it is
necessary to address whether any of the points made are sufficient to warrant allowing
the respective appeals of the laboratories.
10. Discussion on Engagement
10.1       The starting point has to be to reemphasise the fact that the threshold for
successfully establishing that there has been a sufficient lack of engagement by a trial
judge with the case made by a party who appeals against the first instance decision is
a high one. As MacMenamin J. pointed out in Leopardstown Club, as referred to
earlier in this judgment, an appellate court may only reverse the decision of a trial
judge ―where there is a clear non-engagement with essential parts of the evidence‖.
As MacMenamin J. also pointed out, the ultimate obligation on a trial judge is to give
a reasoned judgment. If the analysis of the evidence and the basis on which certain
evidence is preferred to a conflicting account fails to meet the requirement that the
judgment is ―truly reasoned‖ then an appellate court must set aside the judgment
concerned. But it is clearly insufficient to that end to simply identify some piece of
relevant evidence that is not mentioned in the judgment or to suggest that the basis for
a trial judge preferring certain evidence over some other piece of evidence is not as
fully set out as it might be. The threshold is much higher than that.
10.2       On the other hand, it is clear that an attack on the judgment of a trial judge on
the basis of a ―failure to engage‖ is different from a suggestion that there was no
evidence on which the trial judge could have come to the conclusion which he/she
reached, under what might be described as a ―pure‖ Hay v. O’Grady point. Much of
the argument put forward on behalf of the Morrisseys centred on identifying evidence
which, it was said, the trial judge was entitled to accept and which, if accepted, led to
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the conclusions of fact set out in the judgment. However, I did not ultimately
understand either counsel for Quest or counsel for Medlab to suggest that there was
no evidence from which the trial judge could have reached the conclusions of fact
which are to be found in the judgment. Therefore, pointing out that there was such
evidence does not really advance the argument.
10.3       It seems to me that there really are three questions which need to be addressed
under this heading. First, can it be said that the trial judge did fail to address any
aspects of the respective cases made on the facts by Quest and Medlab? Second, and
to the extent that it may be possible to say that there were aspects of those respective
cases which were not fully addressed, were the issues in respect of which any such
failure might be established sufficiently central to the case as a whole to warrant
holding that it was an ―essential part‖ of the case on the evidence in the sense in
which MacMenamin J. used that term in Leopardstown Club? Third, was the extent
of any non-engagement sufficiently serious that it can properly be said that the trial
judge has not really given reasons as to why one side succeeded and the other failed
on an essential element of the case?
10.4       In addressing the issues which arise under this heading, it is important to start
by emphasising the particular circumstances in which the trial of these proceedings
was conducted in the High Court, insofar as those circumstances might be said to
have had a reasonable impact on the way in which the judgment in this case was
crafted by the trial judge.
10.5       First, it must be said that, commendably, all concerned were anxious that
judgment be given as quickly as possible. There were obvious reasons why it was
important that the Morrisseys should know the result of their case at the earliest
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possible time. There is also the fact that at least some of the issues which arise in
these proceedings have the potential to also arise in other cases brought before the
High Court claiming negligence arising out of CervicalCheck or where similar cases
are brought before the CervicalCheck Tribunal.
10.6       In that context, the unusual step was taken of dispensing with oral closing
submissions after the parties had filed written submissions subsequent to the evidence
being completed. It should be emphasised that this is an unusual procedure. In
straightforward cases, oral submissions will frequently take place immediately after
the evidence completes. In more complex cases, it may be considered advantageous
to give the parties an opportunity to file written submissions after the evidence has
finished. While it is true that, in many complex cases, written submissions may be
filed in advance, such submissions are necessarily based on the evidence the parties
consider is likely to be given. There will almost inevitably be some difference
between the evidence as it has emerged at the trial (including questions over which
evidence should be preferred in cases of conflict) compared with how either party
might have assumed, in advance, that the evidence was likely to turn out. For that
reason, written submissions which reflect the evidence as actually given, as opposed
to the evidence which might have been anticipated, can be useful.
10.7       But in such cases, it almost inevitably follows that there is some oral debate
after closing written submissions have been filed. The purpose of that debate is to
tease out issues raised and allow the court to clarify, often not least in its own mind,
the precise issues which need to be addressed in the judgment. However, all parties
went along, for understandable reasons, with the truncated procedure adopted in this
case.
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10.8       While it is entirely commendable that all concerned sought to bring the
proceedings to a close as quickly as possible, it must be acknowledged that truncating
the process does carry with it the risk that not everything will be done quite as
thoroughly as might otherwise have been the case. While proceedings should always
be concluded as quickly as is reasonably possible, it must be emphasised that
truncating proceedings may well have consequences. Where the parties go along with
such a truncated process, then it equally follows that at least some of the
consequences cannot be taken to give rise to any legitimate complaint. In saying that,
it must, of course, be acknowledged that there is an irreducible minimum below
which it is not permissible to go. In the context of the issues which arise under this
heading, a judgment might so lack in reasoning or demonstrable engagement with the
issues that an appellate court could not allow it to stand notwithstanding the process
adopted even with the agreement of the parties. But it does seem to me that it is
appropriate for this Court to take into account the truncated process which was
adopted in these proceedings in assessing whether the reasoning of the trial judge was
adequate.
10.9       As already noted, the first point made under this heading by Quest concerned
the approach of the trial judge to the evidence given by certain American expert
witnesses. It may be that it would have been preferable if the trial judge had gone into
greater detail concerning the actual evidence given by those experts and had given
more detailed reasons, connected with their evidence and the competing evidence
given by the corresponding experts called on behalf of the Morrisseys, for preferring
the case made on behalf of the Morrisseys in that regard. But the trial judge did give
some reasons for preferring the evidence tendered by the Morrisseys‘ experts. In that
context, it does not seem to me that it can be said that there was a ―clear non-
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engagement‖ by the trial judge such that the threshold identified by MacMenamin J.
in Leopardstown Club has been met in respect of this aspect of the case.
10.10 The next aspect of Quest‘s case in respect of non-engagement concerned the trial
judge‘s approach to blind reviews. There is no doubt that Cross J. did offer some
general comments on the topic of blind reviews and did put forward reasons for his
conclusion that a blind review was not necessary. It would undoubtedly have been
preferable, however, if the trial judge had explained in more detail why he did not
consider that the blind review evidence tendered in this case was preferable to the
views expressed by the experts called on behalf of the Morrisseys. If the process
followed in this case had followed the normal course of events, then there might have
been a basis for suggesting that the judgment in that regard was insufficiently
reasoned. However, it does not seem to me that the judgment falls below the
irreducible minimum of reasoning which would require this Court to set aside the
judgment, whether or not the parties have gone along with a truncated process.
10.11       The third area concentrated on by counsel for Quest related to the trial judge‘s
finding in respect of causation. I am of the view that it would have been appropriate
for the trial judge to have set out in more detail the reasons for preferring the evidence
of the Morrisseys‘ experts on the causation issue. However, certain reasons were
given for the trial judge‘s conclusions on causation and they do not seem to me to fall
below the irreducible minimum of reasoning which, for the reasons already set out, I
consider to be the appropriate threshold having regard to the process adopted in the
trial in the High Court.
10.12       Turning then to the issues relied on by Medlab, it should be recalled that the
first such issue concerned the actual number of cells present on the relevant slide.
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Using a computer-based method, Medlab‘s expert witness concluded that there were
35,500 cells on the slide, which would be well above the threshold for adequacy of
5,000. It seems to me that the debate on this issue became overly-centred on the first
question identified in Penney Palmer, which suggests that a court should initially
decide what the factual situation actually was. It was certainly open to the trial judge
to take the view that the question which must be addressed by a screener in
determining whether a slide is adequate is as to whether there is a sufficient number
of well visualised cells, in accordance with established practice. Whether or not the
method adopted by Medlab‘s expert could be said to establish adequacy on that basis
may be debatable. It would, again, have been preferable if the trial judge had given
more detailed reasons for not considering that evidence to be relevant. However, yet
again, some reasons are given and they do not seem to me to fall below the irreducible
minimum threshold.
10.13       The next issue raised on behalf of Medlab complains that there was what was
said to be an inadequate engagement by the trial judge with the evidence given by two
expert screeners called on its behalf, who gave evidence that they had subsequently
looked at the slide in question and had passed it for adequacy. That evidence arose in
the context of the question as to the proper process to be followed in reaching an
adequacy assessment. All of the experts appeared to agree that it was open to a
screener to reach a positive conclusion in respect of adequacy without doing a formal
analysis. This was said to be the proper approach where adequacy was clear. A
formal approach to the assessment of the number of cells was only required to be
adopted where the initial assessment could not be said to have shown the sample to be
clearly adequate. The two relevant witnesses had indicated that they did not consider,
when reviewing the slide in question, that a formal analysis would have been
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required. However, as counsel for the Morrisseys pointed out, one of Medlab‘s own
witnesses had considered that the slide was not adequate and another witness had only
considered it to be adequate because of finding abnormalities. While, again, it might
be said that more detailed reasons could have been given for preferring the evidence
of some of the witnesses over others, the trial judge did give some reasons and, in my
view, the irreducible minimum threshold was not, therefore, met.
10.14       Finally, Medlab also made complaint about the trial judge‘s engagement with
the evidence on causation as set out earlier in this judgment. Here, again, there was
competing evidence as to what would have happened had Medlab assessed the
relevant slide as being inadequate, thus leading to a further sample being required.
There was undoubtedly a significant difference of medical opinion as to what might
have occurred in those circumstances. The trial judge did address those issues in his
judgment but did so in a way which might well have fallen short of the level of
reasoning which might have been required had this case followed a normal process.
However, again, it does not seem to me that the level of reasoning of the trial judge
fell below the irreducible minimum threshold.
10.15       It will be seen, therefore, that I would consider that, in respect of some of the
complaints made, it would ordinarily be justified to regard relevant aspects of the
judgment as being insufficiently reasoned, even allowing for the high threshold which
applies in reaching such a conclusion. However, I do not consider that any lack of
reasoning falls below the irreducible minimum which would lead the Court to
overturn the decision of the High Court, irrespective of the manner in which the trial
was conducted. If the judgment of the trial judge had been delivered in circumstances
of ordinary expedition and with the benefit of final oral submissions, it might well
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have been impossible to regard the judgment as sufficiently reasoned to withstand
challenge. Of course, the very fact that there might have been oral submissions
would, in those circumstances, cast some light on that very question. The focus of the
debate during those oral submissions might give some guidance to the court as to the
extent to which any particular issues truly remained as significant and material at the
final close of the proceedings. Such an assessment is more difficult to reach in the
absence of closing oral submissions directed towards teasing out the true issues which
remain for debate between the parties and which, therefore, impact on the questions
which need to be addressed in the judgment.
10.16       That being said, I consider that, in the particular circumstances of this case,
and having regard specifically to the somewhat expedited and truncated procedure
adopted, the reasoning of the trial judge is adequate to withstand challenge.
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11. Liability of the HSE
11.1       As noted earlier, the HSE has appealed the findings of the trial judge in
respect of its liability for the alleged negligence of Quest and Medlab. As mentioned,
in this regard the trial judge held that the HSE was primarily liable in respect of the
way in which the tests were carried out but also held that the HSE was vicariously
liable for the negligence found against the two laboratories. The statutory functions
of the National Cancer Screening Service Board, which was responsible for the
establishment of the CervicalCheck programme in 2008, were set out in the National
Cancer Screening Service Board (Establishment) Order 2006 (S.I. 632/2006) (―the
2006 Order‖). Article 6(b) thereof provides that the Board was required to:-
―[C]arry out or arrange to carry out a Programme for the early diagnosis of
cervical cancer, and arrange for the primary treatment of cervical cancer in
such classes of women as may be determined by the Minister from time to
time.‖
11.2       On the dissolution of the National Cancer Screening Service Board in 2010
(under s. 28 of the Health (Miscellaneous Provisions) Act 2009), the HSE assumed
the functions of the Board. In respect of the trial judge‘s finding that the HSE had a
primary liability in respect of the acts of the laboratories, the HSE submitted that the
extent of its duty under the statutory provision quoted above is to carry out, or to
arrange to carry out, a competent cervical screening programme and that this duty had
been complied with. The HSE, it was argued, had not sought to assume for itself a
duty to perform the relevant functions of the laboratories, being the screening and
reporting of smear samples, rather it had only arranged for their performance. In
support of its contention that its duty was solely an organisational one, the HSE
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submitted that the operation of the CervicalCheck programme was dependent on
contracting out to third party service providers which could provide services with a
turnaround time which the HSE was unable to match. It was further submitted that
while the HSE had sought to impose obligations of quality assurance, this did not in
any way alter the nature of its own duty.
11.3       The HSE disputed the finding that it held a non-delegable duty to take
reasonable care in the interpretation or reporting of smears by individual cytologists
employed by the contracted laboratories. It was accepted that a hospital could be said
to owe a non-delegable duty to provide its patients with skilful treatment and
therefore be liable in negligence for the acts of all of those who administer treatment
in that hospital, whether they are employed by the hospital or engaged as independent
contractors (see, to this end, the judgments of Lord Greene M.R. in Gold v. Essex
County Council [1942] 2 K.B. 293 and Denning L.J. in Cassidy v. Ministry of Health
[1951] 2 K.B. 343). However, the HSE argued that the service provided by the
CervicalCheck programme is not akin to a hospital service and that the persons who
take part in a screening programme are not comparable to patients in the care of a
hospital. To this effect, the HSE relied on the decision of the Court of Appeal for
England and Wales in Farraj v. King’s Healthcare NHS Trust, [2009] EWCA Civ
348, [2010] 1 WLR 2139, where it was held that the defendant hospital was not
liable for the negligent acts of a third party laboratory which had been contracted to
perform tasks relating to genetic screening. This finding was made on the basis that
the claimants in the case had not been admitted to the hospital for treatment and what
was described as the ―special duty‖ that exists between a patient and a hospital, where
the hospital undertakes the care, supervision and control of persons those who are in
special need of care, was therefore not found to be present.
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11.4       The HSE also sought to distinguish these proceedings from the facts in Byrne
v. Ryan, as was cited by the trial judge in support of his conclusion, which concerned
the imposition of a primary liability on the defendant hospital for the negligence of a
consultant in the course of his treatment of the plaintiff. This case, the HSE
submitted, was in fact decided by Kelly J. on the basis of the existence of an
employment relationship between the hospital and the consultant, who was a
practitioner in the full time service of the hospital in question.
11.5       Further, the HSE took issue with the acceptance by the trial judge of the
principles of Woodland v. Essex County Council, a decision of the U.K. Supreme
Court which approved of the doctrine of the non-delegable duty, as identified in the
―hospital cases‖, Gold v. Essex County Council and Cassidy v. Ministry of Health,
cited above. The ―essential element‖ giving rise to this duty, as described by Lord
Sumption at para. 24 of his judgment, is the defendant‘s control over the claimant for
the purpose of performing a function for which the defendant has assumed
responsibility. The criteria required to establish the existence of a non-delegable duty
were set out in the preceding paragraph of his judgment as the following:-
―(1) The claimant is a patient or a child, or for some other reason is
especially vulnerable or dependent on the protection of the defendant
against the risk of injury. Other examples are likely to be prisoners and
residents in care homes.
(2) There is an antecedent relationship between the claimant and the
defendant, independent of the negligent act or omission itself, (i) which
places the claimant in the actual custody, charge or care of the
defendant, and (ii) from which it is possible to impute to the defendant
the assumption of a positive duty to protect the claimant from harm, and
not just a duty to refrain from conduct which will foreseeably damage
the claimant. It is characteristic of such relationships that they involve
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an element of control over the claimant, which varies in intensity from
one situation to another…
(3) The claimant has no control over how the defendant chooses how to
perform those obligations, i.e. whether personally or through employees
or through third parties.
(4) The defendant has delegated to a third party some function which is an
integral part of the positive duty which he has assumed towards the
claimant; and the third party is exercising, for the purpose of the
function thus delegated to him, the defendant‘s custody or care of the
claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in
the performance of the very function assumed by the defendant and
delegated by the defendant to him.‖
11.6       The HSE argued first that none of the above criteria were fulfilled in respect of
the role it performs in the provision of the CervicalCheck Programme, other than
factor (3), as it was conceded that Ms. Morrissey did not have any control over the
screening of her samples or her treatment. Furthermore, the HSE contested the trial
judge‘s approval of the doctrine of non-delegable duty as a significant development in
Irish law which, it submitted, has not been expressly adopted by the courts in this
jurisdiction, and which represented a form of organisational or enterprise based
liability which would be more appropriately adopted by way of legislative
determination.
11.7       Finally, the HSE argued that any imposition of a non-delegable duty must be
justified by a strong policy rationale. To this end it was submitted that, in fact, a
finding of primary liability would have negative consequences for the operation of a
number of HSE programmes that involve the outsourcing of health services and that
the associated increased burden of risk on the HSE would effectively lead to a
reduction in the scope of the services which could be provided.
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11.8       Counsel for the Morrisseys, in response, submitted that the non-delegable duty
of care owed by the HSE, both under statute and at common law, arises from the
nature of its relationship with the women participating in its cervical screening
programme. It was argued that a statutory non-delegable duty arises from the
wording of Article 6(b) of the 2006 Order, in which it is said to be implicit that the
HSE has a duty both to take reasonable care in the provision of the programme and to
ensure that those carrying out services on its behalf exercise reasonable care. It was
submitted that this statutory duty cannot be evaded on the basis of the argument that
the HSE‘s obligations were to be discharged by an independent contractor.
11.9       At common law, the Morrisseys submitted, a non-delegable duty of care arises
under the criteria set out in Woodland, as quoted above, and further suggested that
such a duty has been recognised in this jurisdiction in Byrne v. Ryan. Counsel for the
Morrisseys disputed the HSE‘s interpretation of the decision in Byrne as one which
was determined solely on the basis of an employment relationship. Particular reliance
was placed on para. 126 of the judgment of Kelly J., where it was held that the
hospital owed a primary duty to the plaintiff given the fact she was a public patient
who was referred to the hospital and not to an individual consultant. In that regard,
Kelly J. cited the following comments of Denning L.J. in Cassidy v. Ministry of
Health with approval:-
―I take it to be clear law, as well as good sense, that, where a person is himself
under a duty to use care, he cannot get rid of his responsibility by delegating
the performance of it to someone else, no matter whether the delegation be to
a servant under a contract of service or to an independent contractor under a
contract for services.
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…[T]he hospital authorities accepted the plaintiff as a patient for treatment,
and it was their duty to treat him with reasonable care. They selected,
employed and paid all the surgeons and nurses who looked after him. He had
no say in their selection at all. If those surgeons and nurses did not treat him
with proper care and skill, then the hospital authorities must answer for it, for
it means that they themselves did not perform their duty to him.‖
11.10       The Morrisseys argued that the five criteria as set out in Woodland, which are
required to establish the existence of a non-delegable duty, had in fact been fulfilled
in this case. First, it was submitted, Ms. Morrissey was one of a number of persons in
the care of the CervicalCheck programme for the purpose of their protection from
developing cervical cancer and she was in a position of vulnerability as a result,
because a misreading of her samples would give rise to a risk of significant harm.
Counsel suggested that the HSE had recognised this responsibility to protect Ms.
Morrissey against such a risk by providing detailed and extensive quality assurance
guidelines to the contracted laboratories.
11.11       Second, it was submitted that an antecedent relationship existed between Ms.
Morrissey and the HSE, as the CervicalCheck programme was a public service which
involved the provision of medical care. The programme, it was said, involved both
the screening and, if required, treatment of the relevant population and independent
laboratories had been contracted to screen smear samples as well as to direct the
future treatment of those screened. Counsel sought to distinguish these facts from the
situation of the claimants in Farraj, as relied on by the HSE. In that case, the
claimants resided outside the U.K. and sought to have a sample of foetal tissue tested
for analysis. Their consultant in Jordan sent what was thought to be an adequate
sample to the NHS, which did not have the capacity to clean and culture the sample
and so this sample was sent on to an independent laboratory for that purpose. It was
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held that the NHS did not have a non-delegable duty towards the claimants, and
counsel for the Morrisseys submitted that this was due to the absence of the central
requirement of an antecedent relationship between the parties to the case.
11.12       The fulfilment of the third criterion, that of an absence of control on the part of
Ms. Morrissey over the performance of the functions of CervicalCheck, was conceded
by counsel for the HSE. Fourth, it was submitted by counsel for the Morrisseys that
the HSE had delegated to the laboratories the task of screening and reporting of
smears, which was said to be an integral part of the HSE‘s contended duty to take
reasonable care in the provision of the programme. That the HSE had retained, in the
terms of its contracts with the laboratories, full supervisory jurisdiction over the
provision of these services, by means of systems of quality assurance, audits and site
inspections, was suggested by counsel to be indicative of an assumption of
responsibility on the part of the HSE over the performance of these functions.
Further, it was contended that the fact that the HSE had delegated one of its functions
to a third party because it did not have sufficient capacity to perform that function is
immaterial. Finally, it was submitted that, if the preceding criteria have been fulfilled,
it followed that any negligence established against Quest and Medlab arose in the
performance of the function assumed by the HSE and delegated to the laboratories,
that is, in the screening and interpretation of Ms. Morrissey‘s smear tests. I will turn
to a discussion of the issues arising in respect of the possible primary liability of the
HSE in due course. However, I will first set out the position of the parties in respect
of vicarious liability.
11.13       As noted earlier, the HSE also contested the trial judge‘s finding that it is
vicariously liable for the activities of Quest and Medlab by reason of the control
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which the HSE exercised over the laboratories under the terms of their contractual
arrangements. It was submitted that vicarious liability often arises in an employment
relationship, or one analogous to the same, and that the default position under tort law
is that a party is not generally liable for the acts of an independent contractor such as
Quest or Medlab.
11.14       On the facts of this case, the HSE submitted that it possessed no direct control
over the laboratories which would suggest that their relationship was analogous to that
of an employment relationship, as was said to be required to establish vicarious
liability in the judgment of Hardiman J. in O’Keeffe v Hickey [2008] IESC 72,
[2009] 2 IR 302. In particular, the HSE contended that it had no real and exercisable power
of control over the acts of the cytoscreeners. Further, the HSE disputed the contention
that the provision of quality assurance guidelines in its contracts with the laboratories
was indicative of vicarious liability. It was said that these provisions do not ―guide
the hand‖ of those carrying out the expert functions of the laboratory.
11.15       Moreover, it was argued that the concept of control is subsidiary to the
ultimate question as to whether a relationship akin to an employment relationship
exists. On that issue, the HSE submitted that, by the terms of their contracts, Quest
and Medlab were in business on their own account and provided a service that the
HSE could not provide in terms of turnaround speed. This was said to be indicative
of the engagement of an independent contractor for its skills and expertise rather than
of the existence of a relationship analogous to employment. Furthermore, the HSE
contended that the laboratories were neither ―part of the organisation‖ nor
―integrated‖ into the business of the HSE in a manner which could give rise to the
imposition of vicarious liability. The HSE pointed to a number of features of the
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business relationship between itself and the laboratories which, it was said, indicated
that the true nature of the relationship involved the engagement of an independent
contractor. Amongst those relevant factors was said to be the fact that the laboratories
provided their own equipment and had responsibility of the management of their
affairs, together with the fact that the laboratories had assumed the financial risk of
the enterprise and that the laboratories had the opportunity for profit through the
arrangement of their affairs.
11.16       Finally, it was submitted on behalf of the HSE that the policy considerations
which usually underpin a finding of vicarious liability, such as risk creation and
enterprise liability, as referred to by Hardiman J. in his judgment in O’Keefe, are
absent in the present case. The HSE, in its arrangement of the CervicalCheck
programme, is not operating for profit and is not ―creating‖ any risk, in the
commercial sense.
11.17       On behalf of the Morrisseys, it was submitted that, by virtue of what was said
to be the extraordinary degree of its control over every aspect of the laboratories‘
screening of the slides, the HSE is vicariously liable for the negligence of Quest and
Medlab. It was contended that the essence of vicarious liability is control, as held by
Hardiman J. at para. 47 of his judgment in O’Keefe, and that the question of vicarious
liability is no longer resolved simply by the question of whether the tortfeasor is an
independent contractor.
11.18       In dictating the methodology by which the slides would be reviewed by the
labs, it was submitted, the HSE exercised a degree of control that would not ordinarily
be exercised over a truly independent contractor. Counsel for the Morrisseys
contested the HSE‘s reliance on the decision of the Supreme Court in O’Keefe, where
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it was held that the State was not vicariously liable for the sexual assault of the
claimant perpetrated by the claimant‘s national school teacher. That case, it was
submitted, was based on an entirely different factual matrix, being that the sexual
assault committed by the relevant teacher evidently fell outside the scope of his
employment. In addition, the rules which the Minister for Education had laid down
for national schools were general in nature and did not go to the governance of the
detailed activities of any individual teacher. On the facts of this case, it was
submitted, the acts of the cytoscreeners clearly fell within the scope of their
employment and the HSE exercised a high level of control over the screening
activities at the laboratory. Furthermore, counsel indicated that the application of the
―close connection‖ test, as adopted by Fennelly J. in O’Keefe and with whom the
majority of the Supreme Court agreed, which considers the closeness of the
connection between the work which the individual was engaged to carry out and the
tortious act, would also lead to a finding of vicarious liability in this case.
11.19       Finally, on the level of policy, it was argued on behalf of the Morrisseys that
the HSE ought not to be able to divest itself of any responsibility for failings in the
delivery of public health services through the outsourcing of its services
11.20       In the light of those submissions, I propose to turn firstly to the question of
whether the trial judge was correct to hold that the HSE was vicariously liable for the
actions of the laboratories.
12. Vicarious Liability
12.1       Both sides sought to place reliance on the judgment of Hardiman J. in O’Keefe
v. Hickey. There was, however, something of a dispute between the parties as to
whether the key component in the relevant test centred around the legal relationship
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between the parties or on the degree of control which one party exercised over the
way in which the other carried out its task.
12.2       It may be said that where difficult or novel issues arise concerning the
application of well-established concepts in common law to particular circumstances, it
may be useful to identify what the fundamental principle or purpose behind the law
concerned may be, for that may give valuable guidance as to how the practical rules
regarding the application of the relevant aspect of the common law might be applied
in such circumstances. However, there are areas where it may be difficult to discern
any overarching but consistent fundamental principle. Rather, in some areas, the case
law has grown up as part of an attempt to deal with a range of different circumstances.
In some such cases it may well be that the proper approach to the evolution of the
common law in such an area is to avoid over-radical developments, but to extend the
parameters of the established case law to novel or evolving areas in a manner which is
at least analogous to the way in which the existing case law has developed.
12.3       The former might be described as a ―back to first principles‖ model. The
latter might be described as an ―evolution by analogy‖ approach. In my view, the
former approach is preferable should it prove possible to discern, with any real degree
of clarity, what the underlying principles are. However, the latter approach may be
more appropriate where it is not really possible to identify a coherent underlying basis
which informs all of the existing case law.
12.4       It will be necessary to return in due course to the most recent judgment of this
Court on the issue of vicarious liability, being Hickey v. McGowan and anor
[2017] IESC 6, [2017] 2 I.R. 196. However, in this context, it is appropriate to note that
O'Donnell J. reached his conclusions on the proper principles to be applied in that
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84
case by adopting what he considered ―to be the cautious and incremental approach
outlined by Fennelly J. in O’Keefe‖. O'Donnell J. indicated that he proposed adopting
that approach, having considered what seemed to be the different approaches adopted
by, respectively, Hardiman and Fennelly JJ.
12.5       In this same context, it may be appropriate to refer to Robinson v. Chief
Constable of West Yorkshire Police [2018] UKSC 4, [2018] 2 WLR 595. While the
Supreme Court of the United Kingdom in that case was concerned with determining
whether a duty of care existed in the particular circumstances of that case, it did make
comments which seem to me to be appropriate regarding the broader issue of how one
should approach the evolution of the common law. In Robinson, it was indicated that
what is required in such circumstances is:-
[a]n approach based, in the manner characteristic of the common law on
precedent, and on the development of the law incrementally and by analogy
with established authorities‖.
I would only add the qualification that, where the existing case law can be seen to
derive from some underlying principle or principles, it may be more appropriate to
start by seeking to identify how those principles should direct the incremental
evolution of the common law. However, that being said, it seems to me that Robinson
provides cogent reasoning as to why the ―evolution by analogy‖ approach may well
be appropriate in many circumstances not confined to the narrow question of the
determination of the existence or otherwise of the duty of care which was at issue in
that case.
12.6       There is, in my view, a strong argument for the view that the law of vicarious
liability may be more properly dealt with under the ―evolution by analogy‖ approach.
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That it may be appropriate to impose liability on one person for the negligence of
another is, of course, well-established as a legal principle. It would be surprising
indeed if, for example, a supermarket could avoid liability for an injury suffered as a
result of negligence by simply asserting that the fault was all that of a specified
employee. However, there is a strong basis for suggesting that the categories of case
in which vicarious liability has been established do not easily give rise to being
explicable by reference to some underlying principle or policy. In Imperial Chemical
Industries Ltd v. Shatwell [1965] AC 656 at p. 685, Lord Pearce said that ―the
doctrine of vicarious liability has not grown from any clear, logical or legal
principle‖. Likewise, Tipping J., in the New Zealand Court of Appeal case of S. v.
Attorney General [2003] NZCA 149, [2003] 3 N.Z.L.R. 450, commented that the
literature was ―replete with comments concerning the lack of any coherent or agreed
jurisprudential underpinning‖. I respectfully agree with those comments. It seems to
me to follow that any evolution of the law of vicarious liability or the application of
that law to new or evolving circumstances requires an approach much closer to the
―evolution by analogy‖ method to which I have already referred. It is in those
circumstances that it is appropriate to look at how the law on vicarious liability has
developed both in this jurisdiction and in other relevant common law jurisdictions in
relatively recent times.
12.7       It is probably correct to say that, in its original form, the concept of vicarious
liability stemmed principally from the legal relationship between the actual
wrongdoer and the party who was held to be legally responsible for the actions of the
wrongdoer even though not personally at fault. Thus, the relationships of employer
and employee, principal and agent or partner and the other members of a partnership
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have been all held to potentially give rise to the possibility of liability being placed on
a person who was not themselves directly responsible for any relevant wrongdoing.
12.8       However, this Court, in Moynihan v. Moynihan [1975] I.R. 192, did extend the
concept of vicarious liability to a situation where there was sufficient control by one
family member over the actions of another family member, who committed the
negligent act in relation to the pouring of tea, which led to an injury. It is clear,
therefore, that, for at least the last 45 years, the Irish courts have recognised that
informal relationships involving some degree of delegated function and control can
give rise to vicarious liability.
12.9       Likewise, the courts in Canada (see John Doe v. Bennett [2004] 1 S.C.R. 436)
and England (see for example Various Claimants v. The Catholic Child Welfare
Society & Ors [2012] UKSC 56, [2013] 2 AC 1) have also accepted that vicarious
liability can attach to relationships that are considered to be ―akin to employment‖. It
would seem that many of the Canadian and English cases stem from a desire to
ensure, as Lord Phillips put it in Catholic Child Welfare Society, that, insofar as it was
fair, just and reasonable, liability for tortious wrong was borne by a defendant with
the means to compensate the victim. I have to say that I am not convinced that,
laudable as that aim may be, such analysis adds very much to the difficult task of
determining the boundaries of vicarious liability. In that context, I would very much
agree with the observation of O'Donnell J., which is set out at para. 43 of his
judgment in Hickey v. McGowan, regarding the function of vicarious liability.
12.10       Some persons are injured through the fault of others who are neither insured
nor have the means to compensate. Obviously the advisors of such persons will seek
to extend liability, if it be possible, to anyone who might be a so-called ―mark‖ for
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damages. But the real question concerns how far it is possible to extend the concept
of vicarious liability. Stating that it will be done when it is ―fair, just and reasonable‖
does not really contribute very much to the analysis, for it simply begs the question as
to the kind of circumstances that can be regarded as coming within that criteria. The
real issue is to identify the type of situation which may legitimately give rise to
vicarious liability.
12.11       There were undoubtedly good reasons for departing from an overly-technical
view which confined liability to cases coming within specific legal relationships.
Persons may well not fit, strictly speaking, within the definition of, for example,
employee or agent but nonetheless may be doing something very similar to that which
would be done by an employee on behalf of an employer or by an agent on behalf of a
principal. There are sound reasons why vicarious liability should not depend on
whether, technically, a person might be regarded in law as an employee or as an
agent.
12.12       For example, it is interesting to note that a number of the Canadian and
English cases arose in the context of sexual abuse within religious organisations.
Clearly, the concepts of employee or agent do not always fit neatly within the
structures typically encountered within religious orders. Furthermore, such
organisations are not normally run as businesses and do not give rise to the kind of
relationships with a commercial enterprise that would exist in, for example, a private
company. But the substance of the relationship is similar. A member of a religious
order who teaches in a school operated by that order may or may not, strictly
speaking, have been considered to have been an employee, but their relationship with
the school and those who manage or own it would be very similar to the relationship
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between a teacher employed in a privately owned school and the owners of that
school.
12.13       Similarly confining the analysis to the question of control might also lead to
unsatisfactory results. Obviously, employers not only identify the work which
employees are to do but also exercise a significant degree of control over how it is to
be done. However, the extent to which actual control, as opposed to a theoretical
entitlement to control, may be exercised in practice may vary greatly from
employment to employment. This will particularly be the case where an employee
possesses a particular skill or expertise which may not be shared by those who
manage the affairs of the employer. The very point of employing the expert
professional may be to ensure that certain types of work will be carried out in a way
which that professional deems appropriate in circumstances where the employer
would not be able to have the work carried out with the requisite expertise in any
other way. The reality of the employer exercising any real degree of control over how
the work is to be carried out in such a case may be highly theoretical. Thus, just like
an overly-technical reliance on the legal basis for the relationship between the parties
may present an unduly narrow focus, so also a complete emphasis on control may not
provide a satisfactory answer either.
12.14       In those circumstances, it is important to return to Hickey v. McGowan. In that
case, the issue was as to the potential liability of a religious order for acts of sexual
abuse committed by one of its members. In assessing the question of whether the
order concerned might be vicariously liable in such circumstances, O'Donnell J. said
the following at para. 38 of his reported judgment:-
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At a crude level the question of whether a relationship between [the first
defendant] and [the second defendant] in any particular case is sufficient to
give rise to vicarious liability can be addressed by asking how closely the
relationship approximates to the classic case of employer/employee. Some of
the cases have taken this approach. There is however in my view something
slightly absurd in seeking to draw comparisons between the case of religious
orders and businesses. Furthermore, the tests and language applicable when
considering the case of employment and analogous relationships, such as
‗enterprise‘ and ‗risk‘ are not easily applicable in the case of religious orders.
Indeed, to apply tests drawn from the relatively modern world of commerce
and industry to religious organisations which have existed for centuries is in
my view, to miss the sheer scale and impact of religious institutions on
peoples' daily lives, particularly in the Ireland of the first three-quarters of the
20th century. The relationship between members of an order and his or her
fellow members and indeed the order itself was much more intense, constant
and all pervasive than the relationship between an employer and an employee,
or in the old language of the late Victorian cases, a master and his servant.
Everything in the organisation of religious orders is directed towards
emphasising the collective. The vow of obedience involves subjugation of
individual will to that of the superior. The vow of poverty has the effect of
making the member dependent upon the order's collective resources. The vow
of celibacy emphasises the focus of the member on relationships with the
order and with God. The objective of teaching young people is not merely
incidental to the work of an order, it is indeed the manner in which the order
seeks to achieve its object. For a member of the order, teaching was not
merely a job it was a religious vocation. There can no doubt that Brother
Cosgrove was in the classroom in Sligo between 1969 and 1972 because he
was a member of the Marist Order. That was known, understood and accepted
by pupils and parents, and when such individuals looked at the various
brothers who staffed the school at any given time, they saw, and were intended
to see not just a teacher, but a Marist.‖
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12.15       O'Donnell J. went on to conclude that, at least at the level of principle, a
religious order could be vicariously liable in such circumstances. The reasoning in
that regard included the following at para. 37:-
―Looked at in this way, it should be apparent that this is in fact not the most
difficult issue in the case. There is evidence that the second defendant was a
member of the Marist Order. It is accepted that the Order was a teaching order,
and supplied teachers to the school. That was how the second defendant came
to be in the school. Teaching was not simply an occupation, but an important
and central part of the mission of the Order. The Order was established, and its
members bound, not merely by rules, but solemn vows taken by them and
considered sacred and binding. Those vows included chastity, obedience,
poverty and celibacy. I think we are entitled to take cognisance of the fact that
members of religious orders at that time normally wore habits of standard
design, identifying them as members of orders, and indeed correspondingly
reducing their individuality, while emphasising their part in a collective.‖
12.16       On that basis, it seems to me that the overall test must be one which considers
whether the nature of the relationship, including the question of control, is such that it
is similar in substance, if not in form, to the types of relationships which have
traditionally been regarded as giving rise to vicarious liability.
12.17       The Morrisseys argued for greater attention to be paid to the degree of control
exercised by the HSE which, it was said, was significant. The HSE emphasised the
fact that the laboratories were independent contractors and that the screeners were
employees of the laboratories and not of the HSE. There is, in any event, often quite a
close correlation between the legal relationship between two parties which arises
where one carries out work on behalf of another and the degree of control exercised.
Indeed, one of the criteria which courts consider in determining whether a relevant
contractual relationship involves one of an independent contractor, sometimes
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described as a contract for services, or of employment, often described in this context
as a contract of service, is the degree of control exercised. It was often said that a key
distinction in that context lies between a case where, on the one hand, the employer
determined what the other party was to do and, on the other hand, determined not only
what the other party was to do but also how they were to do it. There can obviously
be grey areas between circumstances where one party simply contracts that a task is to
be carried in return for payment and leaves it entirely up to the other party to choose
the method of delivery compared with a case where the contracted party is under
some form of direct supervision. Skilled employees may very well be left to a large
extent to their own devices. Many contracts which are very much at arm‘s length will
contain clauses specifying the standards to be achieved.
12.18       In my view, the ultimate question which the Court must address is as to
whether the level of engagement by one party with the way in which the other party is
to carry out a task entrusted to it is sufficient to conclude that there is a real extent to
which it can be said that the contracted party is closely integrated into the activities of
the employer, not just in respect of the ends to be achieved but as to the manner in
which those ends are to be pursued. It is, in my view, difficult to give any true red
line, for the type of circumstances which will arise will be many and varied. The
legal relationship will certainly be relevant. So, too, will the degree of control. But
neither are necessarily decisive particularly where the substance of the practical
situation may not always correspond with legal form.
12.19       In that context, it is clear that there were undoubtedly significant provisions in
the relevant contracts between the HSE and the laboratories which specified certain
standards to be applied. But it does not seem to me that those requirements can
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properly be characterised as involving the HSE in the task of directing how the
laboratories were to go about their work. In any complex situation it would be
extremely surprising if parties entering into a contract of the type with which this case
is concerned did not impose measures by reference to which the quality of the work to
be done could be assessed. Such contracts, for example, frequently specify that work
is to be carried out in accordance with a particular recognised standard, even if that
standard is not legally binding. It can hardly be said that a clause of that type implies
that one contracting party is taking control over how the other is to do their work.
The manner in which the second party is to ensure compliance with the quality control
terms of the contract is left up to themselves.
12.20       Taking a broad view of the relations between the HSE and the laboratories, it
seems to me that both the relationship between those parties (which is clearly that of
independent contractors) but also the level of control exercised by the HSE is such
that it cannot give rise to vicarious liability. I would, therefore, hold that the HSE was
not vicariously liable for any negligence established against the laboratories.
However, that leaves the question of whether it can be said that the HSE was
primarily liable for any such negligence. I, therefore, turn to that question.
13. Primary Liability
13.1       There are a number of ways in which a party who has an established
relationship with someone such as a customer, client or a patient, but who ultimately
arranges for relevant work to be done by a third party, may become primarily liable in
negligence if something goes wrong. Perhaps the most common such circumstance
arises where it can be said that the party with the primary relationship with the
customer knew or ought to have known that there was a real risk that the work which
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was passed on to a third party would not be carried out in an appropriate fashion. For
example, a failure to contract with persons of proven ability in the area might well
provide the basis for a claim in that regard. However, no such claim is advanced in
the circumstances of this case.
13.2       However, there is a second, and it might be said potentially developing, area
of primary liability which comes under the heading of a so-called ―non-delegable
duty‖. Under this heading, a party who has the primary responsibility with the
customer, client or patient may be held, in certain circumstances, to have accepted a
duty to ensure that any relevant arrangements will be carried out in a non-negligent
way and may be held to have done so in circumstances where that duty remains in
place irrespective of whether the contracting party chooses to carry out its side of the
arrangement itself or to arrange for a third party to do so.
13.3       It seems to me that three questions arise under this heading in the particular
circumstances of this case. The first is as to the extent to which the concept of ―non-
delegable duty‖ arises in Irish law. The second is as to the parameters of the
applicability of such a duty, should it be held to exist in principle. The third is as to
whether it can be said that the arrangements of the HSE in respect of CervicalCheck
can be said to come within the scope of any such principle so as, in turn, to lead to the
HSE being primarily liable for any negligence established in respect of laboratories
whom it contracts to carry out work in the context of that scheme.
13.4       The principle which gives rise to the existence of the non-delegable duty has
been accepted by the courts of the United Kingdom, most notably in the decision of
the U.K. Supreme Court in Woodland v. Essex County Council, as referred to above.
In that case, the duty of a local education authority towards pupils in its care was held
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to be non-delegable in circumstances where a pupil suffered serious injury in the
course of a school swimming lesson conducted by swimming instructors who were
not employed by the education authority and whose services were provided to the
authority by an independent contractor. Whilst that decision represents the most
comprehensive analysis of the doctrine of non-delegable duties provided by the U.K.
Supreme Court to date, a number of U.K. authorities had previously indicated that, in
certain circumstances, the duty of a party can extend beyond taking reasonable care in
the performance of their tasks, to ensuring that reasonable care is taken by anyone to
whom those tasks are delegated.
13.5       As indicated by Lord Sumption in his judgment in Woodland, the
characterisation of non-delegable duties has its origins in the law of nuisance and in
the rule in Rylands v. Fletcher (1868) LR 3 HL 330, where strict liability may be
imposed irrespective of fault on the defendant‘s part and where a defendant can be
held responsible even when the acts complained of are committed by independent
contractors. The category of non-delegable duties was subsequently extended to
include situations involving a duty to take reasonable care, as in Hughes v. Percival
(1883) 8 App Cas 443, where Lord Blackburn held in the House of Lords that the
defendant had a duty to ensure that reasonable skill and care was used when carrying
out work which involved a risk to the party wall which divided his house with that of
the plaintiff‘s. It was held that this duty could not be discharged by delegating the
performance of the work to a third party and thus the defendant was found liable for
the negligence of the builder whom he employed to do the work which had caused
damaged to the plaintiff‘s house.
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13.6       Subsequent to this, the principle of the non-delegable duty was further
developed in the case law with reference to the character of the relationship between
the plaintiff and the defendant and consideration of whether the defendant has
assumed responsibility for the exercise of due care by a third party to whom the
defendant may delegate the performance of his or her functions. This analysis first
arose in the employment context, where it was held that an employer had a personal
duty to provide a safe system of work and that, where he or she has appointed an
agent to perform this duty, the employer remains responsible for the agent‘s negligent
acts (see Wilsons & Clyde Coal Ltd. v. English [1938] AC 57). This principle was
affirmed by the House of Lords in McDermid v. Nash Dredging and Reclamation Co
Ltd. [1987] AC 906, where the defendant company, who had employed the plaintiff
as a deckhand, was held to be liable for the negligence of an independent contractor,
the captain of the ship on which the plaintiff worked, who had failed to operate a safe
system of work.
13.7       In the ―hospital cases‖ previously mentioned, a series of decisions of the Court
of Appeal for England and Wales, it was suggested that a hospital holds a non-
delegable duty to take reasonable care in the provision of care to its patients. In Gold
v. Essex County Council, a local authority which operated a voluntary hospital was
held liable for the negligence of a radiographer which it employed. While the
majority of the Court of Appeal decided the case according to the principles of
vicarious liability, in his minority judgment Lord Greene M.R. held that the hospital
had assumed the obligation to treat the plaintiff patient, stating that this was the
―natural and reasonable inference‖ to be drawn from the authority‘s method of
conducting their affairs and the nature of the radiographer‘s engagement, and that the
authority was therefore liable if the persons employed by them to perform the
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obligation on their behalf act without reasonable care. At pp. 301-302, Lord Greene
M.R. held that:-
―… [T]he extent of the obligation which one person assumes towards another
is to be inferred from the circumstances of the case. This is true whether the
relationship be contractual (as in the case of a nursing home conducted for
profit) or non-contractual (as in the case of a hospital which gives free
treatment). In the former case there is, of course, a remedy in contract, in the
latter the only remedy is in tort; but in each case the first task is to discover the
extent of the obligation assumed by the person whom it is sought to make
liable. Once this is discovered, it follows of necessity that the person accused
of a breach of the obligation cannot escape liability because he has employed
another person, whether a servant or agent, to discharge it on his behalf; and
this is equally true whether or not the obligation involves the use of skill. It is
also true that, if the obligation is undertaken by a corporation, or a body of
trustees or governors, they cannot escape liability for its breach, any more than
an individual can; and it is no answer to say that the obligation is one which on
the face of it they could never perform themselves. Nor can it make any
difference that the obligation is assumed gratuitously by a person, body or
corporation which does not act for profit: Mersey Docks Trustees v Gibbs….‖
13.8       In another case involving the negligent acts of employed medical staff,
Cassidy v. Ministry of Health, again the majority of the Court of Appeal reached its
decision on the application of principles of vicarious liability. As quoted above at
para. 11.9, Denning L.J. in his minority judgment considered that the critical factor
was not the hospital's relationship with the doctor or surgeon, but its relationship with
the patient, arising from its acceptance of the patient for treatment. This, he
concluded, meant that the hospital authorities are liable for the negligence of a
hospital worker in the course of the treatment of a patient, regardless of whether the
worker is employed under a contract of service or a contract for services. Denning
L.J. restated this analysis in his minority judgment in Roe v. Minister of Health
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[1954] 2 QB 66, at p. 82. While the principle of a hospital‘s non-delegable duty towards its
patients was referred to with approval in an obiter comment of Lord Browne-
Wilkinson in his X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, at p.
740, the underlying principle identified by Lord Greene M.R. and Denning L.J. was
first adopted by the U.K. Supreme Court in Woodland.
13.9       In Woodland, reflecting on the foregoing development of the law in this area,
Lord Sumption considered that there are two broad categories of case in which a non-
delegable duty has been held to arise. The first such category was described as a
―large, varied and anomalous class of cases‖ in which a defendant employs an
independent contractor to perform some function which is either inherently hazardous
or liable to become so in the course of his work. The second category of cases were
held to involve circumstances where a protective relationship exists between the
defendant and the plaintiff. Considering the latter category as that which was relevant
to the facts of Woodland, Lord Sumption referred to three critical characteristics in
identifying the existence of such a duty, at para. 7 of his judgment:-
―First, it arises not from the negligent character of the act itself but because of
an antecedent relationship between the defendant and the claimant. Second,
the duty is a positive or affirmative duty to protect a particular class of persons
against a particular class of risks, and not simply a duty to refrain from acting
in a way that foreseeably causes injury. Third, the duty is by virtue of that
relationship personal to the defendant. The work required to perform such a
duty may well be delegable, and usually is. But the duty itself remains the
defendant's. Its delegation makes no difference to his legal responsibility for
the proper performance of a duty which is in law his own.‖
13.10       In an effort to articulate the exceptional circumstances in which a non-
delegable duty of care may arise, Lord Sumption clarified that the question cannot
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depend simply on the degree of risk involved in the relevant activity. As previously
referred to, five ―defining features‖ of a non-delegable duty were set out at para. 24 of
his judgment, which require to be restated here in full:-
―(1) The claimant is a patient or a child, or for some other reason is
especially vulnerable or dependent on the protection of the defendant
against the risk of injury. Other examples are likely to be prisoners and
residents in care homes.
(2) There is an antecedent relationship between the claimant and the
defendant, independent of the negligent act or omission itself, (i) which
places the claimant in the actual custody, charge or care of the
defendant, and (ii) from which it is possible to impute to the defendant
the assumption of a positive duty to protect the claimant from harm, and
not just a duty to refrain from conduct which will foreseeably damage
the claimant. It is characteristic of such relationships that they involve an
element of control over the claimant, which varies in intensity from one
situation to another, but is clearly very substantial in the case of
schoolchildren.
(3) The claimant has no control over how the defendant chooses to perform
those obligations, i.e. whether personally or through employees or
through third parties.
(4) The defendant has delegated to a third party some function which is an
integral part of the positive duty which he has assumed towards the
claimant; and the third party is exercising, for the purpose of the
function thus delegated to him, the defendant's custody or care of the
claimant and the element of control that goes with it.
(5) The third party has been negligent not in some collateral respect but in
the performance of the very function assumed by the defendant and
delegated by the defendant to him.‖
13.11       Lord Sumption held that the fact of the defendant‘s control over the
environment in which the injury was caused was not an essential element in this kind
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of case, and where a non-delegable duty arises, the defendant is liable despite the fact
that he may have no control at all. In fact, the ―essential element‖ of this type of case,
he continued at para. 24 of his judgment, is ―control over the claimant for the purpose
of performing a function for which the defendant has assumed responsibility‖.
Furthermore, it was held that a non-delegable duty of care should be imputed to those
providing critical services only in circumstances where it would be fair, just and
reasonable to do so.
13.12       On the abovementioned criteria, Lord Sumption held that the imposition of a
non-delegable duty was not an unreasonable burden on the education authority. In
particular, as noted by both Lord Sumption and Lady Hale in her concurring
judgment, the outsourcing of the educational and supervisory functions of schools was
a recent phenomenon and these were traditionally performed by staff, for whom the
authority would have been vicariously liable. If, on analysis, the duty of the authority
was not to perform the relevant function but only to arrange for its performance, then
it would not be liable for the negligence of independent contractors (see Myton v.
Woods (1980) 79 LGR 28). On the facts of the case, however, it was concluded that
the alleged negligence occurred in the course of the educational functions which the
school assumed an obligation to perform and had delegated to its contractors, and that
if negligence and resultant injury were found, the educational authority is in breach of
duty.
13.13       Lord Sumption‘s judgment in Woodland has been subsequently considered by
the U.K. Supreme Court in Armes v. Nottinghamshire County Council [2017] UKSC
60, [2018] 1 All ER 1, where it was held that the imposition of a non-delegable duty
on a local authority to ensure that reasonable care was taken for the safety of children
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in care, while they were in the care and control of foster parents, was too broad and
that the responsibility with which it would fix local authorities was too demanding. In
light of policy considerations and the relevant statutory provisions, the Court
concluded that the duty of the local authority was not to perform the function of the
provision of daily care, in the course of which the plaintiff had been abused, but rather
to arrange for, and then monitor, the performance of this function.
13.14       It does not appear that this Court has ever been asked to fully consider either
the question of whether such a principle applies in Irish law and, if so, whether the
criteria for determining that a non-delegable duty arises are the same as those
identified in the United Kingdom case law.
13.15       While the United Kingdom case law sets out quite detailed criteria for
assessing whether such a duty can be said to exist in particular circumstances, it does
seem to me to be necessary to consider the appropriate approach to be adopted in
determining whether the concept of a non-delegable duty should be extended to a
category of case which has not yet been the subject of a specific ruling by the courts.
In that context, it is appropriate to refer back to the overall analysis set out in the
section of this judgment concerning vicarious liability which suggests that a court
should be informed by any underlying principle, if there be one, but should also, to
the extent that it is not possible to identify any underlying principle, adopt an
incremental approach.
13.16       There are, it is clear, certain types of duty which are owed to a very wide
number of persons under the long established neighbour principle. When we drive a
car, we owe a duty of care to ensure that the car is safely driven and owe that duty to
anyone who happens to be in the vicinity, be they the occupants of another vehicle,
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cyclists or pedestrians. It does not require any particular prior relationship to impose
such a duty. The happenstance of an individual being a user of the same piece of
roadway as the driver creates, in itself, a sufficient proximity for a duty of care to
arise.
13.17       But there are other circumstances where some form of relationship is required
between parties in order for a duty of care to arise in the first place. Professional
persons owe a duty of care to their clients and patients precisely because they have
undertaken the relationship concerned. That relationship, whether based on contract
or otherwise, informs the parameters of the duty. In such circumstances, it is easy to
see that there is a strong case for suggesting that someone who assumes that duty of
care cannot absolve themselves from their obligations simply by arranging that a third
party will carry out some of the activity which that duty requires to be accomplished.
On that basis, it does seem to me that it is appropriate to recognise that a relationship
may give rise to some form of non-delegable duty. To hold otherwise would be to say
that a party who enters into a relationship giving rise to a duty of care could escape
from that duty simply by inviting someone who was not an employee, or over whom
they did not exercise a sufficient degree of control, to carry out some of the duty
concerned.
13.18       As noted by Lord Sumption, the courts of the U.K. have identified a number
of types of situation where a non-delegable duty of care may exist. It is not necessary
for the purposes of this judgment whether all such categories have a counterpart in
Irish law. For present purposes, it is sufficient to note that, for the reasons analysed in
the preceding paragraphs of this judgment, it is appropriate to consider that there is
potentially at least one underlying principle behind the concept of the non-delegable
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duty, being that such a duty derives from a particular relationship between the parties.
However, the identification of that underlying principle is not particularly helpful in
defining the parameters of the type of relationship which will be held to give rise to a
non-delegable duty. In that context, it seems to me that the incremental approach by
analogy provides the best assistance to the Court in attempting to map out the
parameters of the circumstances which give rise to such a duty.
13.19       It must be recalled that one of the matters identified by both Lord Sumption
and Lady Hale in their respective judgments in Woodland as being relevant in
assessing the extent of any such duty was the fact that certain functions had
traditionally been performed by staff of the schools in question where the outsourcing
of the functions in question was a relatively recent phenomenon. That analysis may
assist in pointing to the appropriate direction of any incremental approach.
13.20       In the particular context of this case, it may also be appropriate to have regard
to the fact that there have, since the adoption of widespread publicly funded health
measures, been significant developments in the way in which the delivery of medical
care is structured. It is, of course, necessary to acknowledge that there continue to be
significant differences between the way in which health services are provided in
Ireland in comparison with equivalent systems in the United Kingdom. Even where
patients have medical services provided to them free of charge, those services are
often provided in Ireland to a much greater extent by the private sector under
arrangements with the HSE. But notwithstanding those differences, it remains the
case that a significant development in the provision of medical services since the
Second World War has been a move from the historical position where most of those
services were provided under some form of contract between the patient and the
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medical service provider (whether that be a hospital, a consultant or a doctor) to one
where many such services are now provided under various publicly funded schemes.
In the past, a patient who contracted for medical services would almost certainly have
been entitled to rely on a term (whether express or implied) of their contract to the
effect that the services in question would be provided in a non-negligent fashion. In
present conditions, many such services are simply provided under publicly funded
schemes without any contractual relationship.
13.21       Just as there was, in Woodland, a basis for considering that the outsourcing
certain education supervisory functions which would traditionally have been carried
out by staff might not absolve the institution from retaining a duty of care in respect
of the manner in which those functions were carried out, there is a basis for
suggesting that, by analogy, the mere fact that certain services are no longer provided
by contract should not necessarily absolve a provider from the kind of obligations
which would likely have arisen under contract in the first place. Such an approach
would meet the evolution by analogyapproach.
13.22       In that context, it seems to me to be important to note that there is no reason in
principle why the HSE might not have chosen to have its own laboratory in which
screening could take place. To the ordinary woman who availed of CervicalCheck,
the question of the precise ownership of the laboratory which would do the screening
would not, in my view, have appeared material. Rather, that woman would have
assumed that she was engaging in a HSE promoted programme which was under the
control of the HSE, and whatever needed to be done might be done by the HSE itself
or might be done by some other body of the choosing of the HSE. In the past, a body
providing a service such as CervicalCheck, but within the private sector, would
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almost certainly have entered into a contract with any woman availing of that service
which would have made, either by express or by implied term, the service provider
liable for any negligence. That would be likely to be so even if the service provider
decided that it would sub-contract some of the work to others. It would have been
unlikely that a relevant contract would have been such that the obligations of the
service provider would have been confined to identifying an appropriate person to
carry out part of the task. It is far from the type of case where a general practitioner
may refer a patient either to a medical facility or an individual consultant precisely
because that general practitioner takes the view that a greater or different level of
expertise in a particular area is required to meet the needs of the patient concerned. In
such circumstances, a patient would not take it that the general practitioner was
assuming responsibility for the consultant or the hospital. A general practitioner
might, of course, be liable for referring a patient to a consultant who that doctor knew
or ought to have known did not have the expertise to deal with the matter. But that
would give rise to a different type of liability.
13.23       It does not seem to me that it is appropriate to characterise the role of the HSE
as being simply one of facilitating a relationship between patients participating in
CervicalCheck and laboratories. Rather, it is appropriate to characterise the HSE as
the party who has undertaken responsibility for the scheme, irrespective of whether
actual screening, or indeed other elements of the scheme, were to be performed by
others.
13.24       On that basis, it seems to me that the HSE were, prima facie, primarily liable.
It is also necessary to consider whether there is anything in the circumstances of the
case which would lead to the view that the HSE had divested itself of responsibility
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for an element of the programme, being that element which involved the assessment
of slides by screeners. It seems to me that it was considerations of this type that led to
the conclusion of the U.K. Supreme Court in Armes that the relevant local authority in
the United Kingdom was not responsible for the actions of foster parents with whom
they had placed children, subject only to there being a possibility of liability if there
was negligence in the way in which the foster parents were selected or monitored.
Even in an era where all relationships were governed by contract, it would have been
most unlikely that an agency which held itself out as facilitating the placement of
children in foster care would have been taken to have entered into a contract to ensure
that, in all circumstances, the foster parents would not engage in any inappropriate
activity. However, the underlying placement service would have carried with it at
least an implied contractual obligation to ensure that the persons with whom a
relevant child was to be placed had been assessed for suitability and, most likely,
would be subject of monitoring. It would be to push the parameters of incremental
change or evolution by analogy much too far to suggest that non-delegable duties
could arise in cases where it was clear that the obligation being undertaken was
simply one of identifying appropriate third parties to carry out a relevant function.
13.25       Some of those involved with CervicalCheck may have been aware that slides
were sent to laboratories, whether in Ireland or in the United States, which were
independent of the HSE. Some may not. But knowledge does not seem to me to be
the essential ingredient. Rather, the question is as to whether the arrangement viewed
as a whole could be taken as one where the HSE was simply procuring that screening
would be carried out by others, so that the HSE was divesting itself of responsibility
for that aspect of the programme by entering into contracts with third parties. In my
view, there is no basis for sustaining such a suggestion.
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13.26       In those circumstances, it seems to me that the HSE is primarily liable for any
negligence which might be found against the laboratories. I propose that the Court
should reach such a conclusion on a somewhat narrower basis than that adopted by
the trial judge because, for the reasons already referred to, I would not hold the HSE
to be vicariously liable for the acts of those laboratories. However, I would hold that
the HSE, in the manner in which it adopted and promoted CervicalCheck, acted in a
way which would lead an informed and reasonable person to assume that the HSE
was undertaking responsibility for ensuring that the programme would be conducted
in a non-negligent way and, further, I would hold that there was nothing in the
circumstances of the operation of the programme which would lead a reasonable
person to conclude that the HSE had absolved itself of any obligations in respect of
the screening part of the programme.
14. Damages
14.1       As noted earlier, the only defendant who appealed on the question of damages
was Medlab. I have already set out the various headings under which the trial judge
awarded damages against all of the defendants, including Medlab. As also already
noted, with the exception of a sum of €10,000 awarded against the HSE in respect of a
failure to inform the Morrisseys, and in particular Ms. Morrissey, about certain audit
results, all of the damages were awarded against each of the defendants.
14.2       Many of the headings of damages were not contested by Medlab. The appeal,
therefore, relates only to two items of damages awarded. In simple terms, it is first
argued that the award of general damages, which as will have been seen were
measured by the trial judge at €500,000, was said to have exceeded the established
maximum award permissible in respect of such damages, which was said to be
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€450,000. Further, it is submitted that the sum awarded was not proportionate when
assessed against the level of damages commonly awarded in other cases.
14.3       Second, it was said that the trial judge was in error in concluding that he could,
in these proceedings, award damages to Mr. Morrissey in respect of the costs which
would be incurred in attempting to replace the non-financial contribution which Ms.
Morrissey, had she a normal life expectancy, would have been expected to make
towards the family. In that context, it is important to emphasise that the case made
was not concerned with the manner in which the trial judge proceeded to calculate the
sums found to be due under that heading, but rather whether there was a legal basis
for awarding damages under that heading at all. In the same context, it is also
important to note that the trial judge did indicate that if there was no legal basis for
awarding damages to Mr. Morrissey under that heading, he would instead have
awarded the same sum under the so-called ―lost years‖ doctrine when calculating the
damages due to Ms. Morrissey.
14.4       While arguing that the trial judge was correct to adopt the approach which he
did, it is hardly surprisingly that counsel for the Morrisseys also suggested that, as a
fall-back position, the trial judge was also correct to indicate that the same amount of
damages could have been awarded under the ―lost years‖ doctrine. It follows that the
real question for this Court is as to whether, as a matter of law, damages of that type
are available, either as damages recoverable by a person in the position of Mr.
Morrissey or under the ―lost years‖ doctrine.
14.5       However, it is appropriate to turn first to the award of general damages.
14.6       The starting point has to be to set out a very brief account of the history of the
adoption by this Court of a limit on the amount of damages which can be awarded for
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pain and suffering. However, before so doing, it is of some importance to be clear as
to the terminology used. On one view, it is said that whatever the limit may be, it can
properly be described as a ―cap‖ on general damages so that it would, on that basis,
operate as an artificial limitation reducing the damages which might otherwise
properly be awarded to fully compensate an injured party. An alternative view is that
the limit, which might in this context not be properly described as a ―cap‖ at all,
amounts to the current view of the appellate courts as to the damages which should be
awarded in cases of the most serious injuries. On that view, it might be said that all
other damages, ranging from the very minor to those which are relatively serious but
not of the most serious category, would require to be broadly proportionate to the
damages awarded in the most serious cases, having regard to the level of injury
suffered. It will be necessary to return to this question when the brief history of the
case law in this area has been reviewed.
14.7       A limit, or ―cap‖, on the amount of general damages which can be awarded for
pain and suffering was first introduced by this Court in Sinnott v. Quinnsworth
[1984] I.L.R.M. 523. In that case, O‘Higgins C.J. described general damages as those which
are intended to represent fair and reasonable monetary compensation for the suffering
and inconvenience with which a plaintiff is afflicted by reason of their injuries and he
referred with approval to the following dicta of Griffin J. in Reddy v. Bates
[1983] I.R. 141 at p. 148, in relation to the calculation of such damages:-
"The fact that a plaintiff has been awarded what is considered to be
sufficient damages to cover all her prospective losses, to provide for all her
bodily needs, and to enable her to live in comparative comfort (having due
regard to her disabilities), should be reflected in the amount of general
damages to be awarded...
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In a case such as this, where damages are to be assessed under several
headings, when the jury has added the various sums awarded and arrived
at a total for damages, they should then consider this total sum (as should
this Court on any appeal) for the purpose of ascertaining whether the total
sum awarded is, in the circumstances of the case, fair compensation for the
plaintiff for the injuries suffered, or whether it is out of all proportion to
such circumstances. In my view, the income which that capital sum would
generate with reasonably careful and prudent investment is a factor which
the jury (and this Court on appeal) should take into consideration in
arriving at a conclusion in this behalf."
14.8       In outlining the rationale for imposing a cap on such damages, O‘Higgins C.J.
described circumstances in which a sum awarded might be so high as to be construed
as a punishment imposed on the defendant for the infliction of the injury rather than a
reasonable attempt to compensate the injured and might, thus, impact on the operation
of public policy. He then continued on to identify the factors which a court may refer
to in its assessment of the level at which such a limit should be appropriately set:-
―In my view a limit must exist, and should be sought and recognised,
having regard to the facts of each case and the social conditions which
obtain in our society. In a case such as this, regard must be had to the fact
that every single penny of monetary loss or expense which the Plaintiff has
been put to in the past or will be put to in the future has been provided for
and will be paid to him in capital sums calculated on an actuarial basis.
These sums will cover all his loss of earnings, past and future, all hospital
and other expenses in relation to the past and the future and the cost of the
special care which his dependence requires, and will require, for the rest of
his life. What is to be provided for him in addition in the way of general
damages is a sum, over and above these other sums, which is to be
compensation, and only compensation. In assessing such a sum the
objective must be to determine a figure which is fair and reasonable. To
this end, it seems to me, that some regard should be had to the ordinary
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living standards in the country, to the general level of incomes, and to the
things upon which the Plaintiff might reasonably be expected to spend
money.‖
14.9       In that case, general damages were assessed by the jury at first instance at
£800,000, a sum which was described by O‘Higgins C.J. as bearing ―no relation to
ordinary living standards in the country‖. By reference to ―contemporary standards
and money values‖, a limit on the award of general damages was set at £150,000, and
the sum awarded was substituted accordingly.
14.10       In light of the prevailing economic circumstances, this limit was subsequently
revised upwards, to £250,000, by Morris J. in the High Court in Kealy v. Minister for
Health [1999] 2 I.R. 456. The limit was also subject to analysis by O‘Sullivan J. in
the High Court in McEneaney v. Monaghan County Council [2001] IEHC 114, where,
having regard to the expert evidence tendered as to inflation and living standards, it
was considered that the contemporaneous equivalent figure to the ―cap‖ on general
damages imposed in Sinnott was approximately £300,000. In M.N. v. S.M.
(Damages) [2005] IESC 17, [2005] 4 IR 461, Denham J. held that she was satisfied
that, at that time, the equivalent figure to the £150,000 limit imposed in Sinnott was in
excess of €300,000.
14.11       A detailed review of the limit on general damages was undertaken in Yun v.
Motor Insurers Bureau of Ireland & anor [2009] IEHC 318, in which case Quirke J.
considered expert evidence regarding the change in economic conditions in Ireland
between 1984 (when the ―cap‖ in Sinnott was imposed) and 2009, together with the
future social and economic outlook as of that time. Assessing the appropriate limit on
the basis of the significant increases in earning levels and the improvements in living
standards which took place in Ireland between 1984 and 2008, and allowing for
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inflation, Quirke J. found that the equivalent value of the 1984 ―cap‖ in 2008 was
€500,000. This figure was then subjected to a downward adjustment to reflect the
reduction in wealth and living standards which had commenced in or around 2008,
when Ireland had entered into a period of economic recession and which reduction
was expected, on the basis of the evidence put before the High Court, to continue for a
further period in excess of five years. Accordingly, Quirke J. reduced the value of the
limit on the award of general damages to €450,000, a figure which was referred to
with approval by this Court in Kearney v. McQuillan & North Eastern Health Board
(No 2) [2012] IESC 43 and more recently by the Court of Appeal in Nolan v. Wirenski
[2016] IECA 56, [2016] 1 I.R. 461.
14.12       This ―cap‖ has been the subject of some recent discussion in the High Court
(see, for instance, Mullen v. Minister for Expenditure and Reform [2016] IEHC 295,
Woods v. Tyrell [2016] IEHC 355, [2016] 1 I.R. 349 and B.D. v The Minister for
Health and Children [2019] IEHC 173), in light of what have been said to be
considerable changes in the prevailing economic circumstances of the country in
recent times.
14.13       In the same context, it is also important to note that a judge-led initiative
suggested that a more equitable way of dealing with future care would be to provide
for periodic payments rather than a lump sum, which can, of course, give rise to a
windfall gain or to monies running out, depending on whether life expectancy has
been accurately assessed and whether the investment climate changes.
14.14       Regrettably it would appear that, for the reasons set out by Murphy J. in the
High Court in Hegarty & anor v. Health Service Executive [2019] IEHC 788, despite
the fact that it took a considerable period of time for the recommendations of the
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Working Group on Medical Negligence and Periodic Payments to be enacted into
legislation, there are real reasons to fear that the periodic payment regime will not
work in practice.
14.15       Those points are of some relevance to the question which this Court has to
consider, for it must be accepted that any person who establishes a claim in
negligence for serious injuries will be fully compensated for any financial loss which
they suffer or any financial costs which they incur so that the award of general
damages is designed to deal only with pain and suffering.
14.16       However, while there might at least be something approaching a broad
consensus among the public generally as to the relative seriousness or otherwise of
certain injuries, the precise translation of any particular set of injuries into a sum of
compensation is necessarily somewhat subjective.
14.17       It is also potentially helpful to look at the position in other jurisdictions. In so
doing, I am mindful of the fact that it would require more detailed analysis of the
precise circumstances in which additional damages for financial loss or cost of case
might be awarded in such jurisdictions to enable a true comparison to be made.
However, and with that important caveat, it is of some relevance to note the highest
level of damages provided for in the guidelines maintained in certain other
jurisdictions.
14.18       In the Guidelines for the Assessment of General Damages in Personal Injury
Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for
courts and practitioners in the assessment of damages in personal injury cases, the
highest level of damages specifically provided for is in respect of injuries resulting in
quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial
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College Guidelines for the Assessment of General Damages in Personal Injury Cases
(14th Ed.), published in 2017, which are for the benefit of the judiciary in England and
Wales, the highest awards of damages recommended are also in respect of injuries
resulting in quadriplegia, which will generally attract an award of between £284,610
to £354,260.
14.19       While it does not appear that there are formal judicial guidelines on damages
for injury in Germany, I am aware that awards in respect of severe cerebral palsy have
been made in and around the sum of €700,000. It should, however, be noted that in
the German system, the award may be adjusted to reflect the degree of culpability
found against the defendant.
14.20       Allowing for the caveat mentioned earlier concerning comparability, it
certainly does not seem that a limit, whether it be €450,000 or €500,000, in this
jurisdiction is out of line with the highest level of damages awarded in other
comparable systems. Indeed, there may be a basis for suggesting that, in relation to
very serious injuries, damages in Ireland are arguably lower than those awarded in at
least some comparable jurisdictions. However, given that no suggestion was made on
this appeal to the effect that the award of €500,000 for general damages was too low,
it is unnecessary to address those questions or to consider any issues of comparability
which might arise. It is sufficient to record that either of the limits being contended
for in this jurisdiction is well within, if not below, international norms.
14.21       The first issue which arises for this Court is, therefore, as to whether it can, as
Medlab argues, be said that the limit was €450,000 and that the trial judge was in
error in awarding €500,000.
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14.22       First, it must be said that the limit of €450,000 derives from the judgment of
Quirke J. in Yun, as referred to above. However, it is also clear that the limit is not
fixed forever but rather can be reviewed from time to time by reference to prevailing
conditions. It is also clear that the limit of €450,000 was fixed at what was, on any
view, a time of particular economic depression in this country and was expressly
reduced by Quirke J. on that basis from what he would otherwise have regarded as an
appropriate limit of €500,000.
14.23       Medlab accepted that it is possible for the limit to be adjusted in the light of
prevailing circumstances but argued that, in order that a court might do so, there
should be evidence of a change in prevailing circumstances so as to allow for a proper
assessment to be made.
14.24       It is in that context that it seems to me to be important to note the difference
between the proper approach to financial damages which are capable of reasonably
precise assessment, on the one hand, and general damages for pain and suffering, on
the other. The course of action adopted in Russell (A Minor) v Health Service
Executive [2015] IECA 236, [2016] 3 IR 427 did involve detailed economic and
other evidence which enabled that court to conclude that it was appropriate to
calculate future pecuniary loss on the basis of an assumption that the real rate of
return on monies invested would be 1.5% (with an exception in respect of the
calculation of the cost of future care, where the real rate of return was set at 1% to
account for future wage inflation). But such an exercise was required precisely
because such damages are capable of at least being approached on the basis of a
calculation. As already noted, there is a significant subjective element to the
calibration of compensation for pure pain and suffering. In those circumstances, it
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does not seem to me that a detailed evidence based approach to a change in
circumstances is necessary or required when identifying the limit on general damages
for pain and suffering. Rather, a court is entitled to take a broad approach based on its
own experience, just as some of the courts which have set and varied the limit have
done to date. In so saying, I do note the approach of O‘Sullivan J. in McEneaney and
of Quirke J. in Yun was somewhat different. In those circumstances, and having
regard to the economic circumstances which prevailed at the time the limit of
€450,000 was fixed, it does not seem to me to be unreasonable to place the current
limit at €500,000.
14.25       I would also suggest that it is important that there be consistency in this area.
In those circumstances, it does not seem to me that a first instance judge should alter
the limit, even where that judge feels that circumstances have changed sufficiently to
justify a departure from a previous limit set by appellate courts. Rather, as applies in
a situation where a first instance judge is bound by precedent set by a higher court, it
should be open to a first instance judge, while awarding damages at the limit
previously fixed, to set out a reasoned basis for suggesting that a higher limit might be
appropriate in the prevailing circumstances and, thus, to leave it up to an appellate
court, most likely the Court of Appeal, to consider whether such an increased limit is
appropriate. It is, of course, open to a party who wishes to seek to persuade the courts
that a different limit should be applied, to lead whatever evidence they might consider
appropriate to that end. It would then be open to a trial judge, in giving reasons for
suggesting a change in the limit, to set out whatever evidence was considered
persuasive. Such an approach would pay appropriate respect to the experience of trial
judges but also ensure consistency by ensuring that any changes are made in only one
place, i.e. the Court of Appeal.
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14.26       It is then necessary to turn to the second aspect of Medlab‘s appeal against
general damages. Under that heading, Medlab argues that, whatever may have been
the appropriate limit, the damages in Ms. Morrissey‘s case ought not have been set at
that limit. In that context, it was submitted on behalf of Medlab that the award of
general damages made by the trial judge was disproportionate, on the basis that Ms.
Morrissey‘s injuries do not reach the end of the spectrum of personal injuries
occupied by injuries such as a catastrophic brain injury occurring at birth.
14.27       It is, of course, the case that it may seem somewhat invidious to attempt to
compare one type of very serious consequence with another. Some persons who
suffer catastrophic injury due to negligence are likely to lead a long life suffering
from very serious disability indeed, in circumstances where there are limits to the
extent to which those disabilities can be ameliorated by the provision of supports
which in turn can be financed by an award of damages. In some such cases, the
person concerned may have full cognitive ability and may be all too well aware of
their unfortunate circumstances. Others may suffer similar disability but with less
realisation. Still others, such as Ms. Morrissey, will, tragically, not have a full or
close to full life expectancy during which they will suffer from the consequences of
negligence, but on the other hand will have the additional pain of knowing about the
life which they will miss and the consequences for their loved ones. In my view,
there are different ways in which it is possible properly to characterise injuries
suffered as a result of negligent action as being at or near the top of the compensation
range so far as pain and suffering are concerned. I have no doubt that this is one such
case.
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14.28       I should say that I have come to that view while considering that the proper
approach to the limit for damages for pain and suffering is the one which sees that
limit as the appropriate sum to award for the most serious damages. This is therefore
the sum by reference to which all less serious damages should be determined on a
proportionate basis, having regard to a comparison between the injuries suffered and
those which do, in fact, properly qualify for the maximum amount. The point which I
have sought to make, however, is that the type of injuries which do properly qualify
for the maximum amount may nonetheless come into different categories. While it is
not possible to conduct a precise mathematical exercise in deciding whether particular
injuries are, for example, half as serious as others, nonetheless it seems to me that
respect for the proper calibration of damages for pain and suffering requires that there
be an appropriate proportionality between what might be considered to be a generally
regarded view of the relative seriousness of the injuries concerned and the amount of
any award. But those very same considerations also recognise that it may be possible
to regard injuries of very different types as being broadly comparable. That
consideration applies equally to injuries of the most serious type and, thus, it is
appropriate to consider the injuries suffered by Ms. Morrissey to be of that most
serious type, even though they differ in character from other types of injuries which
can also properly be characterised as being of the most serious type.
14.29       Given that I have, for the reasons already set out, come to the conclusion that
the limit on general damages for pain and suffering as currently considered should be
fixed at €500,000, it seems to me that such a sum amounts to an appropriate means of
compensating Ms. Morrissey under that heading and I would not, therefore, interfere
with the trial judge‘s award in that regard.
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14.30       It is, therefore, necessary to turn to the second element of the appeal against
damages which relates to the financial cost to Mr. Morrissey of providing for those
―services‖ which Ms. Morrissey would, of course, willingly and happily have
provided for her family had her life not been so tragically cut short.
15. Damages to Compensate for Loss of Free Services
15.1       While it may be somewhat difficult to describe the issues which arise under
this heading in a way which does not appear disregarding of the real human issues
which lie behind this question, nonetheless there is an important question of law
which needs to be resolved. It will be necessary to turn shortly to the case law from
which the existing legal position may be gleaned and from which any possible
evolution of that position may find its staring point.
15.2       The essential difficulty stems from the long standing case law which suggests
that a third party cannot sue in damages for loss arising out of a death caused by the
wrongdoing of a defendant. There have been some exceptions identified and there
have been alterations in the law brought about by the legislature. However, on
Medlab‘s case, the fundamental position remains as indicated in that historic case law,
subject only to those exceptions which have been recognised or where legislative
change has been brought about.
15.3       The heading of claim with which we are concerned refers to damages to which
the trial judge considered Mr. Morrissey was entitled, so as to compensate him for the
cost of having to provide services for himself and his family which would, in the
ordinary course, have been likely to have been supplied by Ms. Morrissey had she a
normal life expectancy. The Morrisseys suggest that such a claim can come either
within the existing case law or, potentially, a reasonable evolution of that
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jurisprudence. It is said that the anomalies which would arise from a finding that Mr.
Morrissey was not entitled to such damages would justify, if it was required, such an
evolution.
15.4       It follows that it is necessary to look at the case law and certain relevant
legislation in a little detail. The historic position in tort was that no damages could be
recovered for financial loss arising out of a death. In Law of Torts (4th edn.),
McMahon & Binchy explain that the principle that death ended all actions in personal
torts, action personalis moritur cum persona, arose from a feature of early English
law, the felony merger doctrine, and meant that at common law the deceased person‘s
estate had no right to sue in respect of his or her death. Further, the common law did
not recognise the death of a person as giving a claim for damages. In a case which
underpins much of the evolution of the law in this area, Baker v. Bolton (1808) 1
Camp 493, it was established that the dependants of a deceased person had no right to
sue in respect of his or her death. There, the plaintiff, following an accident in which
his wife was fatally injured, sought damages for the loss of her society and of her
assistance in conducting his business. Lord Ellenborough held that the plaintiff was
entitled to damages for the loss of his wife‘s society and for the distress which he had
suffered only from the time of the accident until the time of her death a month later,
and stated the following:-
―In a civil Court, the death of a human being could not be complained of as an
injury, and in this case the damages, as to the plaintiff‘s wife, must stop with
the period of her existence.‖
15.5       The rule in Baker v. Bolton was subsequently accepted in other common law
jurisdictions (see, for instance, the decisions of the Supreme Court of Canada in
Monaghan v. Horn (1884) 7 Can S.C.R. 409 and of the Supreme Court of the United
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States in Insurance Co. v. Brame (1878) 95 U.S. 754) and has also been previously
referred to with apparent acceptance by this Court in Byrne v. Houlihan [1966] I.R.
274.
15.6       Exceptions to the historical position in tort law regarding recovery for
financial loss arising out of a death have been fashioned both by courts and
legislatures. In Rose v. Ford [1937] A.C. 826, the House of Lords held that the
plaintiff had a claim of damages for loss of expectation of life as a result of the
wrongful act of the defendant. The ―lost years‖ doctrine has been subsequently
adopted by the courts in order to allow those plaintiffs who have a decreased life
expectancy as a result of the negligent acts of the defendant to recover for their lost
years in a personal injury action brought before their death. In Doherty v. Bowaters
Irish Wallboard Mills Ltd [1968] I.R. 277, it was Walsh J.‘s view that the sum to be
considered in this regard was the plaintiff‘s loss of earnings during the period by
which his or her life expectancy has been reduced, less the living costs which would
have been incurred during these years. The ―lost years‖ doctrine has also been
accepted in the United Kingdom, in the decision of the House of Lords in Pickett v.
British Rail Engineering Limited [1980] AC 136, which appears to have similarly
confined the monies to be recovered under this heading to the plaintiff‘s loss of
earnings during his or her ―lost years‖.
15.7       Further, the rule in Baker v. Bolton presented the obvious anomaly that a
defendant could be found liable for negligence causing injury to a potential plaintiff,
but that recovery was not allowed where the defendant‘s negligent acts caused the
wrongful death of the same. Legislation was introduced in order to mitigate the harsh
effects of this rule on the spouse and dependants of the deceased, who were until that
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point deprived of any cause of action for damages in respect of the individual‘s death.
The Fatal Accidents Act 1846, commonly known as Lord Campbell‘s Act, was
introduced to provide a statutory right to a cause of action to the dependants of the
deceased in respect of their dependency (see the Fatal Accidents Act 1976 for these
provisions as currently set out in English law) and such provisions were reflected in
statutes introduced across a number of common law jurisdictions. In Ireland, the law
on this matter has been consolidated in Part IV of the Civil Liability Act 1961.
Section 48(1) of that Act is particularly relevant for the purposes of these proceedings
and states as follows:-
―48.— (1) Where the death of a person is caused by the wrongful act of
another such as would have entitled the party injured, but for his death, to
maintain an action and recover damages in respect thereof, the person who
would have been so liable shall be liable to an action for damages for the
benefit of the dependants of the deceased.‖
15.8       In a decision of the Queen‘s Bench Division of the High Court of England and
Wales, Thompson v. Arnold [2007] EWHC 1875 (QB), Langstaff J. helpfully sets out
the differences between a personal injuries claim taken by an individual who has
suffered a shortened life expectancy as a result of negligence and a claim under the
Fatal Accidents Act 1976 taken by the dependants of the deceased, at paras. 20-21:-
―[20] First, a claim for the life time damages of a claimant whose death is
impending will, if made on a lump sum basis - the only basis available for
claims at the time which this case concerns, which was before the introduction
of periodical payment orders - be a claim for the loss of earnings up to the date
of anticipated death, and thereafter may include a claim for the ‗lost years‘.
Second, the claim can contain no element of care for any child, or husband, of
the claimant after death, though the costs incurred in doing that which the
claimant would have done to care for family members up until her death may
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be included. Third, an award for pain, suffering and loss of amenity may be
made, but no claim for bereavement damages is payable to members of the
family. Fourth, the claim is made by the claimant herself. Accordingly, any
damages are paid to the claimant. If she dies any sum unspent out of the
money she received will therefore be dealt with as part of her estate, and in
accordance with her will if she has made one, subject only to any claims under
the Inheritance (Family Provision) legislation.
[21] By contrast, a claim under the Fatal Accidents Act is one for dependency,
which may be conveniently divided into two parts - dependency upon earnings
(‗earnings dependency‘) and dependency upon those services provided by the
deceased to which a money value can be attributed (‗services dependency‘)
such as care of a spouse and children, insofar as either would have been
provided for the benefit of the dependants, during the duration of their
dependency. There is no lump sum claim, for pain, suffering and loss of
amenity of the deceased - but instead the dependants may make a claim for
bereavement which attracts a lump sum award, in a standard figure prescribed
by legislation. Finally, a dependency claim is not one made by the claimant,
but by her dependants and is therefore for their direct benefit, and not subject
to the laws of intestacy, or to any will which she may have made.‖
15.9       The creation of a remedy for the dependants of the deceased by statute has in
turn influenced the approach of courts in a number of common law jurisdictions
towards the underlying rule in Baker v. Bolton. In Admiralty Commissioners v. S.S.
Amerika [1917] A.C. 38, the House of Lords refused an invitation to disturb the rule.
Lord Sumner considered that the provisions of Lord Campbell‘s Act, which remedied
the disadvantageous position of widows and children, should be read as effectively
providing statutory recognition to the rule at common law and held at p. 52 that the
legislation ―provided a new cause of action and did not merely regulate or enlarge an
old one‖.
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15.10       Similarly, in Barclay v. Penberthy and Ors [2012] HCA 40, the High Court of
Australia declined to interfere with the rule in Baker v. Bolton at common law, where
the plaintiff firm had sought to make a claim for damages for the wrongful deaths of
two employees, in circumstances where such a remedy was not provided for by
legislation. In doing so, the High Court surveyed the legislative provisions of all
Australian jurisdictions regarding a cause of action on behalf of dependants, with the
majority judgment of the Court holding that ―the pattern of Australian legislation is a
pointer towards the continued existence of the rule in Baker v. Bolton as a matter of
common law‖ (para. 26) and that any further contraction in the scope of the rule is a
matter for Australian legislatures.
15.11       As mentioned, in the United States, the rule in Baker v. Bolton was also
accepted into case law and, in a similar manner to that described above, U.S. state
legislatures subsequently intervened to provide a statutory remedy for the dependants
of the deceased to maintain a cause of action. Deviation from the rule in Baker v.
Bolton was considered permissible by the U.S. Supreme Court in circumstances
where no legislative remedy had been already provided to mitigate the effects of the
rule. In Moragne v. States Marine Lines (1970) 98 U.S. 375, the U.S. Supreme Court
overruled The Harrisburg (1886) 119 U.S. 199, precedent founded on the rule in
Baker v. Bolton, to the effect that maritime law did not afford a cause of action for
wrongful death, and held that the petitioner could maintain an action at maritime law
for the wrongful death of her husband caused by a violation of maritime duties. This
was in circumstances where a remedy for wrongful death in territorial waters did not
otherwise exist in federal maritime statute. Having reviewed the other remedies
provided at federal maritime law for dependants of maritime death victims in other
circumstances, the Court concluded that the lacuna at issue was not reflective of a
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legislative intent to preclude the availability of a remedy for situations not covered
under the legislation and to remedy the anomalies which such a lacuna caused, the
Court created a uniform federal cause of action for maritime death.
15.12       The effects of the creation of a ―true wrongful-death remedy‖ in Moragne
were recognised in the later decision of the U.S. Supreme Court, Sea-Land Services,
Inc. v. Gaudet (1974) 414 U.S. 573, where the Court allowed the bringing of a
maritime wrongful-death action by the spouse of a deceased longshoreman who had
previously recovered damages in his lifetime for his personal injuries. In that case,
Brennan J. held on behalf of the majority of the Court that in Moragne a true
wrongful death remedy had been created, which is founded on the death itself and is
independent of any action the deceased may have taken in respect of his own cause of
action. The dependant‘s claim was held to involve a different cause of action to that
of the deceased and thus was not precluded by the principle of res judicata. While so
called ―wrongful death statutes‖ provide that a dependant‘s claim is barred if the
deceased has recovered for their injuries during their lifetime, the judge-made
wrongful death remedy at maritime law was held to operate with no such limitations
and it was said that any potential for double liability could be eliminated by the
application of principles of collateral estoppel.
15.13       The question which the U.S. Supreme Court faced in Sea-Land Services Inc v.
Gaudet raises a final issue in relation to this aspect of proceedings, which is as to
whether, under Part IV of the Civil Liability Act 1961, as amended, a claim could be
brought subsequent to the death of the injured party by his or her dependants, where a
claim has already been brought during the lifetime of the injured party. The position
under U.K. law appears to be that if a deceased person brings an action for damages
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during his or her lifetime, and either proceeds to judgment or receives a settlement, a
further claim cannot be brought after his or her death under the Fatal Accidents Act
1976, on the basis that the recovery by a dependant is conditioned in statute on the
existence of an actionable cause in the deceased at the time of his or her death (see
Read v. Great Eastern Railway Company (1868) L.R. 3 Q.B. 555 and Nunan v.
Southern Railway Company (1924) 1 K.B. 223). This was also the assumption on
which the House of Lords proceeded in Pickett, although the issue itself did not arise
for determination in those proceedings. It is noteworthy that in that case it was stated
by Lord Wilberforce that this assumption, if correct, ―provides a basis, in logic and
justice, for allowing the victim to recover for earnings lost during his lost years‖.
15.14       In this jurisdiction, the issue has been subject to limited consideration. In
Mahon v. Burke [1991] 2 I.R. 495, the deceased had brought an action for negligence
against the defendant but settled this action before his death. The plaintiff, his widow,
then brought proceedings under s. 48 of the 1961 Act, in which she claimed damages
for funeral expenses, mental distress, and loss of consortium and for loss to the
dependants of the deceased arising from his death. The High Court (Lavan J.), on an
appeal from the Circuit Court, refused to award damages in respect of the fatal
injuries claim, holding that the underlying action of the deceased had already been
extinguished when the principal action had been settled by the deceased during his
lifetime and therefore there was no longer a cause of action vested in the deceased at
before his death.
15.15       In a more recent decision of the Court of Appeal, Hewitt v. Health Service
Executive [2016] IECA 194, [2016] 2 I.R. 649, the plaintiff sought to bring a claim
under s. 48(1) of the Civil Liability Act in respect of the death of his wife. The
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respondent sought to have the claim dismissed as statute-barred, as the statutory
limitation period within which the deceased could have commenced proceedings had
expired prior to her death and, it was said, the cause of action vested in the deceased
had been extinguished by the time of her passing. Hogan J. held that, while the cause
of action under s. 48 is a separate cause of action from that which might have been
maintained by the deceased, the statutory claim of dependants is interdependent with
the original action which the deceased might have brought during his or her lifetime.
Having examined the statutory construction of s. 48(1), as set out above, he found in
favour of the respondents, stating the following at paras. 19 and 20:-
19. In my view, however, it is the following words in s. 48(1) (―…such as
would have entitled the party injured, but for his death, to maintain an action
and recover damages in respect thereof…‖) which are critical and this is where
I respectfully part company from the reasoning and conclusions of [the trial
judge]. In other words, I take the view that s. 48(1) goes further than simply
requiring that the action was in respect of a justiciable controversy measurable
in damages which the deceased was capable of commencing during her
lifetime: it also requires proof that the deceased would have succeeded in the
action but for the death.
20. Accordingly, while s. 48 is certainly a separate cause of action, the
Oireachtas has clearly linked recovery to the entitlement of the deceased but
for her death - to have sued in her own right. This is underscored by the use in
the sub-section of a past conditional tense (―…such as would have entitled…‖)
and the consequential requirements that the decision would have been entitled
to maintain the action and recover damages in respect thereof.
15.16       There is no doubt that there are complexities, both at the level of principle and
as a matter of practice, in attempting to produce an internally logical and coherent
regime to compensate those who may have suffered financial loss as a result of a
death or reduced life expectancy occurring in actionable circumstances. This will be
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so in circumstances where an action is brought after the death in question by third
parties who claim that they have suffered financial loss or where, as here, it is
unfortunately the case that a person will suffer from a significantly decreased life
expectancy with financial consequences both for themselves and for those close to
them.
15.17       As noted earlier, the historic position was that no damages could be recovered
for financial loss arising out of a death. As has been pointed out in judgments from
many jurisdictions (some of which are cited earlier), whatever may be the merits or
demerits of that historic case law, the problem with which we are now faced is not
only that the case law in question has represented the established position in most
common law jurisdictions for a number of centuries, but that we are also faced with
the fact that the law as thus defined has clearly formed the basis of legislative
intervention in most of those jurisdictions. The provisions of the Civil Liability Act
1961, already mentioned, which permit a claim to be brought by the dependants of
someone who dies as a result of the wrongdoing of a defendant are a case in point.
15.18       Whatever way one looks at the situation, there are potential anomalies. A
person bringing an action while they are alive can, under the established case law,
recover for the so-called lost years. On that basis, income which they might have
hoped to have earned during a normal life expectancy but are now not likely to earn
because of that life expectancy being reduced can be recovered. The person
concerned can, of course, provided that they have sufficient mental capacity, do what
they like with the money thus recovered. However, in many cases, not least those
where there has been a very significant reduction in life expectancy, it may well be
that the benefit of at least a portion of the damages recovered for those lost years will
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go to the dependants of the person who will, tragically, die much earlier than would
otherwise have been the case. It may be that, in such circumstances, those dependants
will benefit financially.
15.19       On the other hand, a claim brought after death by the dependants of a deceased
will, insofar as financial loss is concerned, be confined to that proportion of the future
income of the deceased which would have been lost by reason of their death but
which would, as a matter of likelihood, have been spent on the dependants in
question. It certainly does not necessarily follow that the ultimate benefit to the
dependants will be the same in either case.
15.20       Whether, in practice, the total amounts from which the dependants may benefit
might be better under one or other model is difficult to estimate and may well depend
on the particular circumstances of each individual case. On one view, which is in
substance the argument put forward on behalf of Medlab, essentially, as the law
currently stands, that is a choice which parties must address on the basis of their best
estimate of the circumstances prevailing in their own case. It is, of course, a choice
which only arises where a person remains alive but has a significantly reduced life
expectancy for in any case in which the person has already died as a result of an
actionable wrong, the only recourse is to a claim under the Civil Liability Act.
15.21       On the other hand, there is the question as to whether it would ever be
permissible for the dependants of a deceased to bring an action under the Civil
Liability Act arising out of the death of the deceased in circumstances where the
deceased him or herself had, while still alive, successfully prosecuted a case arising
out of the same wrongdoing. The case law of the High Court and the Court of Appeal
in that regard has already been briefly referred to. The issue awaits a final
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determination. If it is not possible for the dependants to bring such an action, then the
difficulty is that the deceased would either have to forego bringing an action during
their life (which might be unfair to them, for they might well have benefited during
their remaining but reduced lifespan from whatever damages might have been
awarded) or the dependants might potentially benefit unless there were to be a rule, as
counsel for the Morrisseys suggested might exist, which prevented double recovery.
15.22       However, how such a rule would operate in practice might not be altogether
fully clear. For example, a person may, at different times in their life, choose to
exercise a decision to engage in paid employment and use some of that money to pay
others to do work in the home or may do some of that work themselves. I use the
term ―work in the home‖ very loosely to encompass the whole range of things which
may be provided free for the other occupiers of a household or others who may be
dependent. To the extent that a person might have engaged in paid employment then
damages might be recovered under the lost yearsdoctrine. However, to the extent
that they might have provided free benefits to their dependants and others from the
same household, damages might only be capable of being recovered in an action taken
by those dependants after the relevant death had occurred. But estimating which
course of action would have been taken and, potentially, in what proportions, could
present a very difficult equation.
15.23       As I see it, the underlying problem is that the entire basis of both the case law
and legislative intervention in the area of damages arising out of death or reduction in
life expectancy has operated for many centuries from a starting point that no such
damages are recoverable, with very limited exceptions identified by the courts or by
intervention by the legislature. While there may be particular circumstances where
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the courts can identify a straightforward evolution of the existing case law so as to
accommodate a particular head of damage which may logically fit in with the overall
scheme, it seems to me that there is an insurmountable danger in attempting to rewrite
the underlying basis of the law of damages in this area. There are already anomalies
enough without creating more.
15.24       To that must be added the fact that it is clear that statutes have been passed by
the Oireachtas on an apparent assumption that the default position in law is that
damages cannot be recovered for death save for those limited exceptions to which I
have referred. Indeed, it seems to me that there is much merit in the argument put
forward on behalf of Medlab, which drew attention to the fact that the only areas
where the American courts would appear to have felt free to develop common law
principles in this area was where there had not been legislative intervention.
15.25       In those circumstances, it seems to me that any further significant evolution in
this area is one that can only be achieved by comprehensive legislation rather than by
an evolution in the case law. I appreciate that the current situation does contain some
anomalies. But the risk of creating further anomalies by a piecemeal approach on the
part of the courts involving a radical alteration in the underlying common law
assumption in this area is one which, in my view, should be avoided.
15.26       It follows, it seems to me, that the trial judge was in error in awarding Mr.
Morrissey damages in respect of the costs of providing for services which Ms.
Morrissey might have been expected to provide free for the family in the event that
she had lived to a normal life expectancy. It seems to me that such damages can,
under the law as it currently stands, only be recovered in an action brought by
dependants under the Civil Liability Act. If there are to be further changes in this
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complex area, it seems to me that they will be much better carried out through
considered legislative intervention.
15.27       While it is true that one of the strengths of the common law is its ability to
evolve to reflect changed circumstances, it is equally true that there are dangers in
over-radical intervention, particularly where the consequences are by no means clear
and the risks of creation of further anomalies are significant. Furthermore, where, as
here, the legislature has already intervened to define the parameters of certain
categories of loss which can be recovered, it seems to me to be appropriate to view
this as an area where the legislature has adopted the common law position and sought
to amend it. In such circumstances, the courts should lean against over-radical
reinterpretation of the common law which might be said to be potentially inconsistent
with the legislation.
15.28       In all those circumstances, it seems to me that if a less anomalous situation is
to be arrived at in this area it will require legislation. I would, therefore, allow
Medlab‘s appeal against that head of damage awarded to Mr. Morrissey in respect of
the cost of future services.
16. Conclusions
16.1       As noted at the beginning of this judgment, the background to this case
involves a particular human tragedy. However, this Court has to deal with the legal
issues which arise and, as agreed with by counsel at the oral hearing, there were
essentially five sets of legal issues with which the Court was confronted. For the
reasons analysed earlier in this judgment, I would propose the following conclusions
in respect of each of those issues.
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16.2       The first question concerns the proper standard of approach to be adopted by a
screener involved in a scheme such as CervicalCheck. I have set out the reasons why
I consider that the Dunne test remains the basis for identifying the legal standard of
care by reference to which a claim in clinical negligence is to be assessed. To avoid
any lack of clarity, I have made a number of observations in respect of that test. In
substance, the legal standard of care applied in any clinical negligence claims, or
indeed other professional negligence claims, requires the court to assess whether no
reasonable professional of the type concerned could have carried out their task in the
manner which occurred in the case in question. That overall test requires a court to
determine what standard a reasonable professional would apply. For the reasons set
out earlier in this judgment, I have used the phrase ―standard of approach‖ to describe
the standard that a reasonable screener would be expected to apply in order to avoid
any confusion with the term ―standard of care‖, because that latter term has a precise
legal meaning. As noted earlier, I consider that the use of the term ―absolute
confidence‖ may have created more confusion than clarity. However, it is clear that
all of the relevant witnesses agreed that a screener should not give a clear result in
respect of a slide unless they had no doubt but that the sample was adequate and did
not contain any suspicious material. That standard is not one imposed by the court
but rather one which stems from the profession itself. The determination of that
standard requires either agreement between the parties or, in the event of
disagreement, an assessment by the court of expert evidence.
16.3       I have also set out the reasons why I consider that it is clear that the trial judge
applied the appropriate standard in reaching his conclusions.
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16.4       The second and third set of issues concerned the contention made by both
Quest and by Medlab which suggested that the trial judge had failed to engage
properly with certain aspects of the case which they made on the facts and had,
thereby, delivered an insufficiently reasoned judgment. I make some observations on
the legal principles to be applied in assessing such a contention. I also note that, for
laudable and understandable reasons, a somewhat truncated procedure was adopted in
the High Court in this case.
16.5       As set out in the judgment, I conclude that, while there were a number of areas
where it would have been preferable for the trial judge to have given more detailed
reasons, the judgment did not, in its reasoning, fall below the irreducible minimum of
reasoning, even where the Court has made all due allowance for the adoption of a
truncated procedure. I also suggest that it might well be that, in some respects, the
judgment might have fallen short of the standard required to survive a successful
appeal had these proceedings followed their normal course. However, I conclude that
the grounds of appeal put forward under this heading by, respectively, Quest and
Medlab must fail.
16.6       The fourth set of issues arise in respect of the appeal brought by the HSE in
relation to the finding of negligence made against it. The High Court had found the
HSE liable both on the basis of being vicariously responsible for the actions of the
laboratories and also on the basis of having a non-delegable duty to the patients who
availed of CervicalCheck such that the HSE must be taken to have accepted
responsibility for the non-negligent delivery of the service.
16.7       For the reasons set out earlier in this judgment, I have concluded that the High
Court judge was incorrect to hold that the HSE were vicariously liable for the
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negligent acts of the laboratories. However, having analysed the law in the evolving
area of non-delegable duty, I express the opinion that the HSE did, in all the
circumstances of this case, have such a duty in respect of patients availing of
CervicalCheck. On that more limited basis than the one adopted by the High Court, I
would dismiss that aspect of the HSE‘s appeal which suggested that it should not be
fixed with any liability in respect of negligence established against the laboratories.
16.8       Fifth, and finally, there were two sets of issues arising under the heading of
damages. An appeal on the award of damages was brought solely by Medlab with no
similar appeal begin brought either by Quest or by the HSE.
16.9       The first area of appeal concerned the award of €500,000 for general damages
to Ms. Morrissey. Having analysed the relevant case law, I express the view that
€500,000 now represents the appropriate maximum damages to be awarded for pain
and suffering in personal injury cases. I also express the view that Ms. Morrissey is
entitled to that maximum sum. It follows that, in my view, the appeal brought by
Medlab in respect of the award of €500,000 for pain and suffering should be
dismissed.
16.10       The second issue raised by Medlab in respect of damages concerned the award
of damages to Mr. Morrissey in respect of losses attributable to having to replace
services which would have been provided to the family by Ms. Morrissey had it not
tragically transpired that she will have a significantly reduced life expectancy. I have
analysed the law in this area in some detail and set out the reasons why it may, in
certain respects, be potentially anomalous. However, the underlying basis for this law
goes back many centuries, has been followed in most common law countries and has
been the subject of intervention by the legislatures in such countries in circumstances
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where it can only be inferred that the legislature accepted that the law which it was
seeking to amend was as set out in that established common law jurisprudence. In
those circumstances, I conclude that any change in the law in this area is a matter
which must be the subject of legislation. It in turn seems to me to follow that the
High Court was incorrect in awarding the sum in question to Mr. Morrissey. In that
respect, I would allow Medlab‘s appeal in that regard. It is suggested that if the
parties are not in a position to agree on the amount of such damages in respect of
which the appeal is to be allowed, submissions are to be made to the Court on the
matter within three weeks of today‘s date.
16.11       In summary, therefore, I would dismiss all of the appeals save for the appeal
of Medlab in relation to the award of damages in respect of loss of services. I would
invite the parties to file, electronically, in court, within three weeks of today‘s date,
submissions as to the precise orders which the Court should make, including issues
concerning the costs of these proceedings. In the event that there is any difference of
opinion between the parties as to the precise orders which should be made, I would
propose that the Court consider, in the current difficult circumstances, how best to
arrange for the proper debate of those issues in a manner which is consistent with the
highest levels of safety while at the same time complying with the requirements of
justice.


Result:     Other




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