Professional Malpractice II - Page 2 of 2 - Irish Legal Guide (2023)



Roche versus Peilow

[1985] IR 232 Supreme Court
Walsh J.

The plaintiffs, who are husband and wife, retained the defendants as solicitors for the purchase of a house in Cork in 1973. They alleged that the defendants were negligent and in breach of contract in performing their duties as counsel for the plaintiffs. They then filed an action for damages against her in the Superior Court. The suit was dismissed by the then President of the Superior Court, Mr. Justice Finlay, who dismissed his suit in a confidential judgment dated December 21, 1979. The present appeal is lodged against this judgment. The facts are fully clarified by the judgment of the wise President. For the purposes of this judgment it will suffice to set them out briefly.
The purchase of the house would be through a building contract made with the developer, a company called J.B. Limited builder. A rental agreement dated February 19, 1973 between the client and the former was attached to the building contract dated February 19, 1973. The lease would be for a period of 999 years beginning March 25, 1972, and would be granted in consideration for the costs incurred by the aforementioned Joseph William Roche in building the house in question, as well as in consideration for the rents and contracts that reserved in the lease. The lease was for the land of the house which formed part of the property listed in folio 58474 of the Cork County Register of Landlords, of which the developer was the registered owner and recorded as plot No. 19, Muskerry Drive, Woodlands, Blarney, County Cork .
The construction of the house and lease was part of a development project on a much larger site owned by the aforementioned J.B. Limited builder. The contract required the lessor to provide the authors with a certified copy of said folio before or during the signing of the lease. The property on which this development took place was subject to provisions permitting lease, sublease or subdivision under section 12 of the Provincial Act of 1965 and the interest limitation provisions in section 45 of the same Act, but in this case nothing appears in this regard. Many other property buyers had entered into similar contracts, and when their respective leases were signed they were recorded as encumbrances on the folio. The land commission had already approved the division and leasing of the land for the relevant building purposes. By letter dated April 6, 1973, the developer's attorneys advised the defendants that none of the charges concerning the property listed in the Cork County Register of Landlords Folio 58474 concerned the property they surrendered to the plaintiffs. They further confirmed that there were no outstanding settlements that would affect plaintiffs' title. Indeed, on 12 July 1972 the builder had a mortgage charge in favor of Lombard and Ulster Banking (Ireland) Limited and a certificate of registration of that charge under section 104 of the Companies Act 1963 was issued on 21 July 1972. The mortgage as security was intended to secure any monies which the builder owed or later owed or accrued from time to time to Lombard and Ulster Banking (Ireland) Limited.
According to the records, the modality of carrying out the land development in question was the purchase of the land to be developed by the construction company and the pledging of the land by deposit of deeds in order to collect the money needed to carry out the development. The development would also be funded by any prospective home buyer who would enter into a building contract and pay for the building periodically in accordance with the building contract. On the completion date of each home, the lease would be executed to the buyer. Lombard and Ulster Banking (Ireland) Limited would normally discharge the property of the house in question of its encumbrances so that the lease could be carried out free of such encumbrances. In return, the construction company would use the proceeds of the construction contract to pay the finance company the appropriate amount for the release of that particular piece of land. This appeared to be a common method of financing real estate developments and was well known to members of the legal profession, including the defendants.
An obvious danger of this system of real estate development financing was that, in the event of the developer's bankruptcy, he would be deprived of the property encumbered by the finance company that had acquired ownership of the property. Additionally, if for some reason the contractor is unable to complete the building, the buyer risks the final cost to him being much higher if he has to hire another contractor to complete the building and pay the finance company himself. or alternatively suffer the loss of the partially built house and land. In this case, a buyer would obviously be in a much more vulnerable position than someone who had already leased a plot of land prior to the completion of the construction contract.
In the present case a deposit of £1,000 was paid to the builders as a booking fee on 10 April 1973. The builders later demanded staged payments of £2,500 for the height of the first floor beams. The sum was finally paid out on April 27, 1973. In between there was a very significant dispute, with plaintiffs complaining that they were dissatisfied with the way the building was managed and refusing to pay until completion. wishes were fulfilled. The dispute went so far that on April 13, 1973, the builders agreed to return the deposit to the plaintiffs and terminate the entire contract. Applicants also struggled to obtain bridging funding, which was one of the reasons they struggled to pay the required £2,500. During the disputes between the plaintiffs and the builders, the defendants, as counsel for the plaintiffs, have issued full and comprehensive warnings to them of the danger of losing their prospects of a Royal Liver Society loan. The defendants did all they could to persuade the Royal Liver Society to extend the period during which the loan could be taken out. Eventually the company withdrew completely.
On February 22, 1973, the defendants sent the developer a series of property claims. In response, they were told, among other things, that the land certificate would be presented before the lease would be charged as a charge on the payroll upon completion of the sale. A certified copy of the sheet was sent to the defendants upon further request. Nothing on the site and nothing in the responses to the various inquiries indicated that the property was mortgaged as a title deposit. As this is registered land the deposit mentioned would not appear on the sheet. No search was conducted in the Companies Office. As the construction company was a corporation under the Companies Act there must be a record in the Companies Office of any deposit of instruments held by the company. In fact, there was such a record.
The defendants had not registered with the Vereinsamt and therefore did not know that the property in question was mortgaged. Consequently, they have not been able to inform their customers of the existence of this mortgage and have not done so. They explained to the plaintiffs that, under the contract, they would have to make payments in several installments of the amounts committed, and pointed out the risk of losing those funds if the builders went bankrupt during the construction phase. The authors understood this risk and decided to take it. However, none of these communications focused on the possibility of the site becoming unavailable.
The plaintiffs contended that the defendants acted negligently and breached their contract with the applicants by not discovering the mortgage, conducting the appropriate searches at the Mercantile Society, and warning them of this additional risk. The plaintiffs had already paid the builders £8,000 for the building contract when the builders went bankrupt. This happened according to the decision of the shareholders of the construction company on October 18, 1974, when it was decided to dissolve the company. The lease had not yet been completed. The company, through its administrator, was ultimately obliged to lease the property to the plaintiffs, which of course was not valid in relation to the bank. The bank was and is willing to unblock the site in exchange for a payment of £6,000, but nothing else. In the absence of such payment they appear willing to repossess the property from the plaintiffs and of course with that would come the house that is now built upon it.
The defendants, in response to the complaint of impropriety, stated that they had acted in accordance with prosecutorial practice in these matters, that is, they had not taken all necessary steps until the lease was approved. There does not appear to be a general practice of pre-contractual research by solicitors when advising buyers on the purchase of houses provided under a build and lease system. In this case, the question arises whether such a common practice has such inherent flaws that they should be apparent to anyone who duly studies the matter.
It is clear from the evidence presented by the lawyers, including the defendants in this case, that they were well aware of this particular risk and that in cases where money was paid during a construction contract they assumed that the construction site was uninsured was and would be lost in the event of bankruptcy or liquidation of the client. In the event that no money is paid out of a construction contract until completion the risk would be greatly reduced although in the event of loss of the property the buyer could be very disappointed and suffer damage. Although in a case such as the present it could very well be that the plaintiffs, although aware of the risk, had decided to proceed, the fact is that they did not know and therefore it is moot. speculate what they would have done if they had noticed. In this transaction, the position of the plaintiffs was fraught with very serious risks. The first was pointed out by their lawyers, which is that by making regular payments during construction they could lose everything if the builder went bankrupt or went into liquidation, or alternatively they could mitigate their loss by sending someone to complete the construction work. . There was ample evidence that the applicants were fully aware of and accepted this risk. The second risk in their situation was the issue of the website itself. They were not informed of this and the question arises as to whether the Defendants' failure to disclose the mortgage and provide the information to the Plaintiffs was negligent on the part of the Defendants. In my opinion it was.
It is clear from the files that this type of construction financing was well known to the lawyers and that they were also aware of the risks involved. Where the developer is a limited liability company, consultation with the Office of Commercial Companies would clearly be required in addition to consultation with the land registry. It may be that the common legal practice of not doing this research until it is time to complete it is based on the experience that in most cases nothing goes wrong. However, this practice does not eliminate the risk that is evidently inherent in this practice. The whole purpose of a search is to uncover these matters, and no attorney may permit his client to purchase land or make an irrevocable financial commitment to purchase or develop land unless he has first verified that the land is vacant of burdens or not. . Otherwise, you must inform your customer of this circumstance and, after appropriate consultation, leave it up to him to decide whether or not to accept the risk of accepting the legal transaction at the risk of the existence of the right of lien.
In his judgment, the learned Chief Justice of the Superior Court quoted a passage from the Superior Court's decision in O'Donovan v. Cork County Council [1967] I.R. 173. In my view, the last paragraph of that passage settles this case. The learned President based his judgment against the plaintiffs on a passage from an English judgment, Simmons v. Pennington & Son [1955] 1 W.L.R. 183. In this case the seller had acquired commercial space in 1922. This was then used as a store and has remained that user ever since. However, the facilities were subject to a restrictive pact imposed by an 1870 treaty, restricting use to residential purposes. When the premises were put up for sale in 1951, the seller said in the terms of sale:
“The property is sold subject to the restrictions on use and use contained in the deed of September 29, 1870. . . insofar as they continue to exist and are expected to take effect, the buyer is obliged to comply with them to the extent specified above and to indemnify and hold the seller harmless in this regard. A copy of these restrictive agreements is available for inspection. . . and the purchaser, whether inspecting them or not, shall be deemed to have purchased with notice."
The buyer bought the property at auction and signed the purchase contract. I made inquiries and one of them was the following:
“Is the property, or any part thereof, subject to any agreement or agreement restricting the use or enjoyment thereof or otherwise?
If so, has it been properly complied with or enforced?
The response to the seller's attorney was:
"Yes. See Special Condition #7. It appears there have been violations of the User Agreement, but no Violation Notice has been served."
The buyer's attorneys then wrote to the seller's attorneys stating that the buyer was not informed prior to the sale that a restrictive agreement existed limiting use of the property to private residence, which the buyer was unwilling to enter into, and urged the prospective party to be instructed to return the deposit. This was refused and in the meantime the property, which was not insured by either party, was severely damaged by the fire. In the following case, Denning L.J. (as then) held that the answer to Requirement No. 14 was fatally wrong in that it allowed the buyer to go out of business and therefore had a right to terminate the contract. in the file. However, he also stated that he was satisfied that the responding lawyers had not acted negligently and expressed the view that the restrictions were probably out of date, but the lawyers could not say so categorically. The request, to which an answer was given, was qualified as a "request for supplies," but the answer given was not, in the understanding of the learned judge, a careless answer. The Court of Appeals further ruled that it was unfortunate that the lawyers' words, instead of protecting their client, amounted to terminating the contract, but that was not the lawyers' fault. In the Court's view, it was not reasonably foreseeable that such a refusal would result from the response to the application and that they had acted in accordance with assignors' general practice. The court noted that the reaction was never known to have had any negative consequences. As a result, the court found that the lawyer had committed no breach of duty to his client. Several observations can be made about this particular case. First, the terms of sale were not particularly sincere, and second, a truthful response to an inquiry could hardly be considered negligence. One might think that a lawyer could not reasonably foresee that telling the truth in a standard answer to a stock question would not satisfy the buyer. In my opinion, however, the case differs fundamentally from the present case. The risk in this case cannot be neutralized by qualifying it as equity risk. It's a very significant and real risk. The fact that this happens frequently does not in the least mitigate the danger it poses. It cannot be said that the consequences of the occurrence of the risk are unforeseeable, as the evidence in the present case indicates that the risk was notorious and the consequences would be obvious if it occurred. In my opinion, the decision in Simmons v. Pennington & Sons [1955] 1 W.L.R. 183 does not apply.
I had the advantage of hearing the judgments of the then Chief Justice in Taylor v. Ryan (unreported March 10, 1983) and Judge Murphy's decision in Kelly v. Crowley [1985] I.R. 212. The principles established in these cases confirm, in my view, that the defendants have breached their obligations towards the plaintiffs to the extent that they were unlawful. Therefore, it would overrule the Superior Court's order and refer the case to the Superior Court for damages.

Henchy J.
When the plaintiffs engaged the defendants to act as their attorneys in the home purchase process, they had a reasonable expectation that their interests would be protected by the defendants with the care that would be expected of a reasonably diligent and competent attorney. This duty of care may be said to arise as a contractual matter, by virtue of an implicit provision to that effect in the custodial agreement, or alternatively as an aspect of tortious negligence arising from the closeness of the relationship between attorney and client: see finlay v. Murtagh [1979] I.R. 249.
In determining whether the plaintiffs are entitled to succeed in their claim for damages because of the defendants' lack of care, certain characteristics of the home purchase in question must be emphasized. The house wasn't built yet. The site for the house was one of several developed by a construction company. These sites were listed in the Cork County Register of Landlords Folio 58474 and the registered owner was the builder. The developer was to build a house for the plaintiffs on one of these plots for the sum of £9,450. This sum was to be paid in installments to be paid at various stages in the construction of the house, namely £1,000 as a deposit, £2,500 for the first floor, £2,000 for the ceiling, £2,500 for the internal plastering and £1,450 for the finishing work . Along with this construction contract, the builder committed himself to leasing the house for 999 years after completion.
The plaintiffs directed the defendants to act as their attorneys in relation to the transaction before entering into any written agreement with the developer. The construction contract for the house was signed by the parties on February 19, 1973, and the lease on the same day. The allegation of plaintiffs' negligence is based on the allegation that before being bound by contract, the defendants, when their solicitors, should have conducted a search of the Companies Office to determine whether the contractor had filed a complaint on site in the Register of Agir- Company. , 1963. Had such a search been conducted, it would have been found that the developer, by depositing title deeds over the property on folio 58474, had engaged a bank to secure all amounts owed by the developer to the bank. . Had this position been disclosed, the defendants would no doubt have informed the plaintiffs that the bank was a fair mortgagee and warned them of the dangers of paying installments to the developer who did not own the right of use and against there would be no effective solution in the event of insolvency.
Unaware of the bank's interest in the property, the plaintiffs entered into the building contract and lease agreement. Defendants applied for title in the usual manner by filing title applications. Neither the answers to the inquiries nor the certified copy of the sheet indicated that the bank had collected the money. Only a search of the Companies Office would have revealed this allegation, and that search was not carried out.
However, the plaintiffs made the partial payments required under the construction contract. They made partial payments totaling £8,000 when the builder went bankrupt and went into liquidation. Although the trustee eventually agreed to grant the plaintiffs the lease, that lease is void because of equity
invested in the bank as a result of the encumbrance and the bank is unwilling to relieve the site of its encumbrance unless £6,000 is paid.
Plaintiffs' present action against the defendants for negligent damage and/or breach of contract relies on the allegation that the pecuniary loss they suffered in connection with the attempted acquisition of this home was investigated and discovered through the defendants' failure to collect in favor of the bank. In particular, they allege that before the defendants would allow them to enter into a contractual relationship with the construction company, the defendants had to assess the bank's interest in the property and warn the defendants of the financial risk involved in conducting the business in building the property Company had no clear title.
I have no doubt that the financial disaster that befell the plaintiffs resulted from the defendants' failure to discover and notify the existence of the bank fee prior to entering into the contract. The real question is whether this violation amounts to negligence on the part of the defendants as attorneys.
The general duty of a solicitor to his client is to demonstrate to him the care that is expected of a reasonably diligent and competent solicitor in the circumstances. In general, a lawyer is deemed to have fulfilled this duty if he follows a standard practice in his profession: see Daniels v. Heskin [1954] I.R. 73 and the cases mentioned there. Conformity with the generally accepted practice of their peers would normally refute an allegation of negligence against a professional accountant since the level of care legally required of them is no greater than that expected of an ordinary reasonable member of the profession or professional accountant. the relevant specialty. But there is one important exception to this rule of conduct. Walsh J. has it in O'Donovan v. Cork County Council [1967] I.R. 173, p. 193:
"If there is a common practice that has inherent flaws that should be apparent to anyone who duly studies the matter, the fact that it has become widespread and generally accepted over time does not make the practice any less negligent . A breach of duty does not expire by repeating the breach of duty.
The reason for this exception or limitation is that the duty imposed by law is based on the standard expected of a reasonably diligent professional accountant and a person cannot be said to be acting reasonably by automatically and thoughtlessly practicing other follows reflection. , you would have realized that the practice in question was dangerous to your client and easily avoidable or remediable. Of course, the practitioner cannot be judged in hindsight, but it can be said that if he had thought about it correctly, he would have recognized at the time that the controversial practice in the
Circumstances incompatible with his client's interests and when safe alternative behavior is reasonably available to him, he will be considered negligent.
I find it undeniable that it was against the interests of the plaintiffs that the defendants obligated them to make payments on account without first notifying them in contractual relationships with the construction company and in particular the clerk's office. , which would have shown that the ultimate beneficiary of the site was the bank. As a result of the defendants' default, the plaintiffs faced disappointment and financial disaster if the builder proved unable to pay its debt to the bank. As the Superior Court evidence showed, by refraining from such a search, the defendants followed a then-common practice of trespassing among attorneys. However, compliance with this practice can only be used as a defense if it can be shown that a reasonable attorney, having regard to the client's best interests at the time, would have been correct in deciding that a search of the Companies Office was unnecessary or undesirable was. Noting that there was no undue delay, expense or difficulty in completing such registration and noting that the financial misfortune actually suffered by Plaintiffs was a risk reasonably foreseeable by Defendants I believe that despite the Defendants' failure to register, the Plaintiffs have complied with a practice then widespread in the profession, but have failed in their duty of care to the Plaintiffs. To prevent a verifiable fraud harassing the plaintiffs, potential buyers hire attorneys to act on their behalf.
This would allow plaintiffs to appeal and refer the case to the Supreme Court for damages determination.

vulture j.
The facts and circumstances that motivated the initiation of proceedings in this lawsuit are fully established in the judgment of the wise President of the Republic (as then) and in the judgments passed. The only question that arises in deciding this appeal is whether the defendants, as counsel for the plaintiffs, breached their duty to the plaintiffs by failing to file a complaint with the Companies Office against J.B. Bauunternehmen GmbH (“the Company”), with whom they had entered into the building contract and lease on February 19, 1973, prior to the execution of said contract and lease or prior to the payment of the security deposit. £1,000 and subsequent internship payments under contract. If such a search had been conducted, the defendants would have found that on July 12, 1972, the company had mortgaged property registered at Folha 58,474 on which the company had contracted to build a home for the plaintiffs. for the entitlement to deposit the certificate of property with Lombard and Ulster Banking (Ireland) Limited and that the mortgage had not been repaid.
The equitable mortgage was an encumbrance on property or any interest therein held by the company within the meaning of Section 99 of the Companies Act 1963 and therefore, to the extent that security is given in respect of the property of the company, it is owed to the liquidator and any creditors of the company Company void unless duly registered with the Companies Office within 21 days of the date of its creation. The indictment was filed on July 21, 1972.
The manner in which the company funded the development of the building was described in Walsh J.'s judgment and, to the knowledge of attorneys in general and the defendants in particular, was common practice for several years prior to the sentencing. February 1973. Due to the high cost of acquiring and developing land, builders were invariably forced to borrow heavily on the land in order to carry out the development.
Defendants filed title motions with company attorneys on February 27, 1973. The replies were sent to the defendants on April 6, 1973. Meanwhile the deposit of £1,000 was remitted to the company's solicitors on 27 February 1973 by 23 February 1973. The applications stated that the certificate of property would be produced on completion of the sale to enable the rent to be recorded as a charge allow on the payroll. A certified copy of the folio was provided and showed a clear folio. The defendants were assured by responses to inquiries that all documents would be presented upon completion, at which point the house would be completed and all necessary records made. Unfortunately for the plaintiffs, the company went into liquidation on October 18, 1974, after a series of contractual installments and before the home was completed or the lease signed. Although, by arrangement with the trustee, the house was later completed and occupied by the plaintiffs, and the trustee awarded the rent to the plaintiffs, the plaintiffs have no proper title to the land on which their house was built, as that rent is worthless... against the bank that has fair equity in the country.
The plaintiffs contend that the difficulties that have arisen and the serious situation in which they find themselves would have been avoided if the defendants had received the company's registration with the Companies Office before the conclusion of the contract or at the latest when the applications were answered. . Such a search would, of course, have uncovered the appropriate mortgage, and the defendants could have warned the plaintiffs of the risks they would be running if the company went into liquidation before the house was completed and the lease was awarded. It would then be up to the plaintiffs, after being fully informed by the defendants, to decide whether they wish to proceed with the transaction.
The plaintiffs allege that the failure to uncover the appropriate mortgage was due to the defendants' negligence and breach of contract. Defending is just as easy. The evidence showed that, at the time this transaction was conducted, it was common practice for transfer lawyers to conduct investigations only immediately prior to completion and that pre-contract investigations were unknown in transfer practice in all countries. Therefore, taking into account existing practice, they claim that they were not negligent or in breach of contract on their part in not conducting a search at the Companies Office. They contend that a lawyer, no less than a doctor, "cannot be considered negligent if he follows accepted and common practice in the situation with which he is dealing: see Daniels v. Heskin [1954] I.R. 73 and the cases cited therein”—according to Walsh J. in O'Donovan v. Cork County Council [1967] I.R. 173 at p. 193, in this case it was questioned whether the patient's death was due to the physician's negligence.
While it is well known that a professional is not generally considered negligent if he follows an established or accepted custom or practice, as Walsh J. points out at p. 193 of the O'Donovan case, this suggestion is not without nuance. Then he said:
"If there is a common practice that has inherent flaws that should be apparent to anyone who duly studies the matter, the fact that it has become widespread and generally accepted over time does not make the practice any less negligent . A breach of duty does not expire by repeating the breach of duty.
The real question in this case, therefore, is whether there was an inherent error in the practice of not investigating a case like this until just before its conclusion. In what might be termed the conventional sale of "used" homes, the general practice has been to postpone the search until just before the sale. In such cases, this practice affords the buyer reasonable protection. He pays his deposit to a shareholder and the purchase price is only paid to the seller after the sale is complete, at which point the security is thoroughly examined. If the seller cannot provide good title, the sale will fail, and while the buyer may lose the advantage of the deal, he does not lose the purchase money.
However, in the case of a contract for the construction of a house, which is accompanied by a rental agreement, which is signed after the house is completed, the price

in the case of staggered payments, other considerations arise. The person for whom the home is being built does not acquire ownership of the home or land on which it is being built until the home is completed, the final installments have been paid, and the rent has been assigned. If the developer goes into receivership before completion and the transaction is financed as described above, you risk losing all installments already made and also the loss of the property. The defendants were aware that the way in which the real estate development was financed was in fact common in this case and that such financing of real estate development carried a great risk that in the event of the company being liquidated the plaintiffs would pay before the liquidation partial payments would be missed and the administrator of the company might not be able to pay the rent agreed upon in the contract. This could have had devastating consequences for the plaintiffs, especially since in this country a house is invariably the most important, if not the only, property of most heads of household.
The level of care required of a lawyer in carrying out the business entrusted to him by his client is consistent with the normal level of skill and competence normally exercised by reasonably diligent colleagues in their profession. The practice of postponing the search until completion when selling 'second homes' has been adapted and perpetuated in the housing plans that have prevailed over the past thirty years. , and therefore it has been the general practice of prosecutors in cases such as the present. Although this has become common practice, I think any reasonably cautious attorney would come to a high conclusion given the manner in which such developments are usually financed and the likelihood of the title deed being deposited with a financial institution through a mortgage principal -Risk industries like construction, there were almost certainly instances where homebuilders collapsed before the homes they were building were finished. Such counsel would therefore consider that the practice of deferring a registration with the Companies Office, which Defendants believed could be carried out without undue delay and with little cost or inconvenience until immediately before its completion, did not adequately protect their clients and was inherent was erroneous and should not be followed.
Therefore, in the present case, the defendants should have made such registration before the plaintiffs entered into the contract with the company, and their failure to do so constituted, in my view, a breach of their duty of care to the plaintiffs, and the harm suffered by the plaintiffs resulted from that breach . So I would allow this feature and agree with the order suggested by Walsh J.

hedermann j.
I agree.

McCarthy J.
The facts of the case are set out in such detail in the wise President's judgment of December 21, 1979 that it does not seem necessary to dwell on them, except to point out the facts that transpired on specific dates.
July 12, 1972: J.B. Construction Company Limited (the Company) pledged the property by equitable deposit of the deed of property with Lombard and Ulster Banking (Ireland) Limited (“the Bank”).
19 February 1973 - The plaintiffs entered into a written agreement with the company whereby the company agreed to build a house on part of the property for a value of £9,450 and to pay that amount in installments.
February 27, 1973 - Defendants' orders from company attorneys.
April 6, 1973 - Response from company attorneys.
23 February 1973 - £1,000 bail check sent to company solicitors and construction began shortly thereafter.
Apr. 27, 1973 - Payment of £2,500 for the second step is sent to the company.
12 June 1973 – Third leg payment of £2,000 to company.
December 13, 1973: Company lawyers filed for termination of the construction contract and offered a refund of the money paid by the plaintiffs, less costs and expenses.
22 February 1974 - Next stage payment of £2,500 to company.
Prior to the end of September 1974 - Lease signed by plaintiffs, but company refused to enforce due to non-payment of account balance.
October 18, 1974: The company goes into liquidation.
Early 1976: The dispute over the remaining debt was settled with the receiver.
The working arrangement between the bank and the company during the time the property was being developed stipulated that the bank would issue property certificates to allow individual property leases to be recorded on the payroll in exchange for payment of a portion of the total property price by the company for construction of the house received. Theoretically, it was not a purchase price, since the "patron" commissioned the builder (the company) to build a house at a fixed price and paid for it in stages. The method used was widely used for many years, except for installment payments, and was a method of avoiding the high stamp duty due when buying and selling a completed home. The fiction, fictional as it was, was that the "employer" purchased a piece of land on which he intended to build a house and contracted the contractor as joint owner of the building. The reality was that one way or another the developer owned land which he was developing to a pre-agreed plan and would build a series of houses to a fairly established design, subject to minor variations, and upon completion would organize a house lease for the "employer". I think it is not uncommon for such transactions to have taken place in relation to houses that were in the process of being completed before a 'build contract' was executed. This is not the case here. In 1973, this convenient and useful method had been in operation for more than twenty years, but with an important change that was still recent: the introduction of installment payments. If the "employer" was limited to paying a deposit and no surcharges until completion, then in the event of a problem like the one encountered here - liquidation of the construction company - or any other problem that made it impossible to carry out the operation, the employer, would you be able to get your deposit back and would not have paid any other money. But if the payments were made at different stages of construction, and what happened here, there was a real risk that the same damage would be done to the plaintiffs.
Section 99 of the Companies Act 1963 provides:
"(1) Subject to the provisions of this Part, any charge made after the date fixed by a company and being a charge to which this Section applies to the extent that there is a security interest or obligation of the company vis-à-vis the liquidator shall be void and all Creditors of the company, unless the prescribed details of the encumbrance verified in the prescribed manner, shall be provided or received by the Registrar of Companies for registration in the form prescribed by this Act within 21 days from the date of its incorporation, but notwithstanding any contract or obligation to return any money so guaranteed, and if any charge is void under this section, the money so guaranteed shall become due immediately."
The allegations in p. 1 are detailed in sub-s. 2 and include “a tax upon the land, wherever it is situated, or any interest therein. . .” The July 1972 Equitable Mortgage was such a charge and was actually registered by the Registrar of Companies on July 21, 1972. Section 103 actually required the registrar to keep records of such charges, available for inspection by any person upon payment of the appropriate fee. Also for S. 104, the registrar must provide a registration certificate for each registered position.
The main point of Plaintiffs' complaint is that the Defendants, as their attorneys, in the exercise of their professional duty as such, should have conducted a pre-search of the Companies Office, so to speak, to enable Plaintiffs' plaintiffs to initiate the transaction. of the series of payments to which I referred. I quote the judgment of the Academic President (p. to which I referred. I quote the judgment of the Academic President (p. 242):
"Representing the plaintiffs, it is stated that the defendants therefore conducted a search either before the authors signed the construction contract and the lease or before paying the initial down payment and the payment of the follow-up steps carried out against the company at the Office of Companies , would have confirmed the existence of this cheap mortgage. Then, using reasonable care to protect the interests of the plaintiffs, they should have required performance of a contract entered into by Lombard and Ulster Banking (Ireland) Ltd. Payment by the originators of the amounts due under the building contract would allow the bank to release the title deed and allow a lease for that property to be entered on the sheet. In the alternative, it is stated that if the defendants had registered with the Office of Commercial Companies prior to the tenants signing the lease, or at least prior to the payment of any amount by them, at the site of the construction contract, it established the existence of the mortgage for the equitable deposit of title deeds which at that time could and should have insisted on foreclosure of the company and the immediate recording of a rent on the premises before the plaintiffs were allowed to pay any amounts for the building contract.
Defendants' primary defense against these allegations was that, at least at the time of this transaction in 1973 and 1974, the common practice of transfer attorneys was to conduct searches only immediately prior to the completion of a transaction, and that searches were not performed before the completion of the contract are. known as a custom or practice in general transportation in this country. Furthermore, it was argued for the defendants that although the building contract in the present case provided that the employer would enter the land which formed the main office, either by leasehold or by contract, common law in the practice of landlords and builders in a transaction the manner in which this transaction was contemplated did not contemplate performance of a lease by the lessor unless and by the time all amounts under the construction contract were paid. In these circumstances, the defendants contend that it was negligent not to have taken a precautionary measure which, while would have prevented the particular harm suffered by the plaintiffs in this case, but which was not known to have been part of the transfer of the law firm to them one applying false standards of care and skill and conflicting with decisions about the level of care and skill that the law requires of an attorney in the practice of his profession."
The only evidence of the general practice of transfer lawyers came from the defendants themselves and from Mr John Buckley, a well-known lawyer in Dublin real estate transfer practice; As a result of that review, it was common practice at the material time for lawyers to carry out searches only immediately prior to completion. However, it is appropriate to refer to part of Mr. Buckley (p. 33 ff.)
"P. Let me see first, the first step in buying a home, an existing home. I suggest that the whole concept of the transfer in terms of buying an existing home is that the buyer is not held back by money separate until he acquires ownership.
A. In addition to the deposit.
Q. Regarding the escrow, barring exceptional circumstances, would you release the escrow to the seller?
A. In exceptional cases.
Q. Would the concept be that you were trying to hold your customer's money for their benefit until you were able to ensure that the seller could keep their end of the bargain?
R. Sim.
Q. Regarding the survey, I assume that the moment you part with the money your customer receives, you are satisfied. Why are you parting with his money?
R. Sim.
This brief passage of the record identifies, for the purposes of the present case, the essential duty of the prosecutor to examine the evidence of the practice then in force. In his decision, President Scholar referred to the following passage from the judgment of Walsh J. in O'Donovan v. Cork County Council [1967] I.R. 173 at p. 193, a medical malpractice case.
"If there is a common practice that has inherent flaws that should be apparent to anyone studying the matter, the fact that it has been widely and universally adopted over time does not make the practice equal. less negligent. A breach of duty does not expire by repeating the breach of duty.
Mister. The President accepts the proposal in the case of alleged professional negligence by a lawyer and adds: . . . . "It seems to me that the universality of a particular practice adopted by an entire profession must itself be evidence that it is not a practice that has inherent flaws that should be apparent to anyone considering the matter due consideration." I am against this proposal.
In Kelly v. Crowley [1985] I.R. At 212 of an action for negligence brought against the defendant as plaintiff, Murphy J. issued a warning appropriate to the present action:
"In all cases of allegations of negligence, but especially of negligence allegedly committed by experts, there is a risk that the behavior of the accused will be judged on the basis of subsequent knowledge or even on the basis of a more theoretical than practical standard. . . "
As I look back on the events of twelve years ago, I realize that this danger of being wise after the event is very real. I am content, however, to take an approach that attempts to move away from the evidence of common practice at the time and to pose the question as it was during Mr. Buckley, which I have quoted. It was not about the skill of the builder, the quality of his workmanship, the efficiency or the speed of completion; It was a more fundamental consideration and more like what you would expect from a lawyer acting on an existing home purchase. Whether the attorney asked himself or his client whether the money the client paid to a third party was "safe" or not, there was only one answer: "no". After being informed of this, it is very unlikely that the plaintiffs entered into the contract and made the payments. The question of a corporate office search may have arisen; had this happened, disclosure of the appropriate mortgage would certainly have discouraged applicants from such an obligation until their position was secured. In my opinion, the standard practice used by Mr. Buckley had inherent flaws which should have been apparent to anyone who duly dealt with the matter. The irony is that in every other respect the defendants, like attorneys, acted with the meticulousness one would expect from a firm with its long history and seriousness. The trees of the details of the transfer and the dispute over the construction of the house itself may have hidden the wood from the real danger related to the solvency of the builder, the company. In response to further inquiries, the defendants were assured that consent to use the land certificate at closing would be provided with similar consent to use the certificate of registration of the lease payable on the invoice. The unfortunate effect of all this information was to divert attention from the real danger. A whole new factor had entered the relationship between "employer" and client; it cannot be a principle of law that a profession has a so-called 'free bite': to wait for harm to occur before taking obvious means to prevent such harm. to have the opportunity
to bring a charge against the property on which the contractor was to build a house, using the "employer's" money for that purpose, was a clear and present danger; it was the lawyer's duty to guard against it. This breach of duty has not ceased to be a breach of duty through repetition. The Academic President quoted a passage from the Hodson L.J. in Simmons v. Pennington and Son [1955] 1 W.L.R. 183:
"In Congressmen Cooke v. Falconer told Lord Fullerton: 'A professional does not guarantee that what he does will certainly have the effect he expects. . .
It only guarantees that he will bestow upon the subject entrusted to him the skills that his fellow professionals generally possess. A claim for damages against a trader is not sufficient to prove that something entrusted to him did not have the expected effect; must demonstrate an act of gross ignorance which could not be committed by any other reasonably informed professional accountant".
While I accept that a man does not guarantee that what he does will certainly have the effect he is expected to have, I reject the requirement of "an act of manifest ignorance which could not be committed by any other reasonably informed member of the community." away. Profession." This places a very heavy burden of proof on the client, I prefer the simplicity of the qualification set forth by Walsh J. in O'Donovan v. Cork County Council [1967] I.R. 173.
Consequently, I do not agree with the opinion of the learned President when he says: "I am not satisfied that there is evidence before me on the basis of which I could properly argue that the transportation practice, which was universal up to these events, was a was that, after With due consideration, a person of normal legal capacity would have decided that he had inherent defects, would have allowed the appeal, ruled in favor of the plaintiffs pursuant to paragraph 1 of the judgment in the original pleadings, and referred the case to the Supreme Court for damages assessment .

O'Carroll -v- Diamond [2005] IESC 21 Supreme Court Kearns J.

I have read Hardiman J.'s negligence judgment in this case and agree with his reasoning and conclusion. I agree that this complaint should be dismissed as to the causal link.
In cases such as the present, the plaintiff will seek damages only if the court is satisfied with weighing the probabilities that the plaintiff would have acted upon such advice if it had been given, and if so, in a particular manner, would have prevented the losses. Opening the complaint, said Mr Dwyer, counsel for the complainant, agrees that proof of causality is a necessary condition for a claim for damages.
The point is made in this connection by Sykes v. Midland Bank Executive and Trustee Company Ltd, [1971] 1 Q.B. 113, in which a lawyer negligently failed to inform the client that the terms of a lease he was about to enter into prohibited him from subletting with the landlord's consent. The builder signed the lease and later wanted to sublet the property. The landlord refused and the client sued the lawyer for loss of income. The Court of Appeal, in the light of the evidence, held that the customer had entered into other leases with similar provisions and that, under all circumstances, he would have accepted the lease in question even if he had been correctly informed of the terms.
In this case the evidence was extraordinarily clear in the sense that the plaintiff's proof was that he would have enforced the sublease in any case. Lord Salmon stated (at 127 G-H):-
"...Mr. Sykes was a remarkably candid witness. He, no doubt disappointed, would not say it would have made any difference if he had received the right advice....they did so even when discussing the implications of point 2 (XI) had been adequately advised of subleases”.
In most cases, however, the question of whether counseling would have changed a plaintiff's behavior involves a fairly sophisticated exercise on the part of the trial judge to determine what a particular person would have done in the circumstances then prevailing. in front of him.
Inevitably, the trial judge will place heavy reliance on the evidence and the plaintiff's conduct in providing that evidence. The court must exercise considerable care in fulfilling this obligation, since a plaintiff's evidence of what he or she would have done if he or she had been properly informed is necessarily influenced by the fact that an adverse outcome would otherwise have occurred . There is an unavoidable risk that the evidence presented by an applicant in these circumstances will be (knowingly or unknowingly) subsequently falsified.
This difficulty has led to widespread debate in other common law jurisdictions as to how courts should approach this task, particularly with regard to advice related to the doctor-patient relationship. While the current context is attorney/client, the underlying evidence requirements are no different. In fact, the authors Dugdale & Stanton (Professional Negligence, Butterworths; 1998 ed. Ch 18, p. 397) treat the subjects interchangeably. Therefore, the briefest possible review of some medical cases is helpful, particularly when deciding whether an applicant's assessment should be made with reference to objective or subjective evidence of what he is likely to have done if he had received the appropriate advice.
In the United States, objective evidence was found in Canterbury v. Spence [1972] 464 F. 2d 772 and a similar approach was used in Canada in Reibl v. Hughes [1980] 1 14 D.L.R. (3D) 1.
In Canterbury v. Spence, Robinson J., in the court's opinion on page 790, explained the preference for objective evidence:
“A violation of the doctor’s duty to provide information justifies the patient’s liability, just like the violation of any other legal obligation. An unreported risk that should have been disclosed must materialize or the failure, unforgivable as it may be, has no legal consequences. The occurrence of the risk must be harmful to the patient, since non-injury-related negligence is not punishable. And, as with malpractice lawsuits generally, there must be a causal relationship between the physician's failure to make adequate disclosure and harm to the patient.
A causal link exists if, but only if, disclosure of significant treatment-related risks would lead to a decision to the contrary. The patient obviously doesn't complain when he's already through therapy, even though he knows that the risk was one of his dangers. On the other hand, the actual purpose of the obligation to provide information is to protect the patient from consequences which, if he had known, he would have avoided by forgoing treatment. More difficult is the question of whether the factual question of causality requires an objective or subjective determination.
The issue is considered resolved when the investigator believes the patient's statement that had he known of the danger, which later turned into injury, he would not have consented to the treatment. A technique that simply combines a factual conclusion of causality with an assessment of the patient's credibility is unsatisfactory. Undoubtedly, the purpose of risk education is to maintain the patient's interest in making an intelligent self-choice of the proposed treatment, a question which the patient is free to decide on whatever grounds he or she wants. If the patient is sufficiently informed about the risks and the exercises of his choice before starting therapy, it can be said with certainty that he has done exactly what he wanted to do. But when causality is examined in a post-traumatic study with a supposedly uninformed patient, the question of whether he really would have refused treatment if he had known the risks is purely hypothetical; "Would the patient have been decidedly different from the point at which he had to decide if he had known something he did not know? he was found. find topic. - the reported hazard actually occurred.
From our point of view, this question of dealing with the question of causality comes second. In hindsight, this endangers the doctor and the patient's bitterness. It enables the investigator to decide whether to believe a speculative answer to a hypothetical question. It requires a subjective determination based only on patient/witness testimony, obscured by the occurrence of the undisclosed risk.
We believe that the issue of causality is best resolved objectively: in terms of what a prudent person in the patient's position would have decided if they had been properly informed of any significant hazards. If reasonable disclosure could reasonably be expected to have resulted in that person refusing treatment as a result of disclosure of the nature of the risk or hazard that resulted in harm, then causality is established; otherwise, it is not. Patient statements are of course relevant in this regard, but they would not overwhelm the findings. And since such statements would likely be evaluated consistently with the investigator's belief in their plausibility, the case for a fully objective standard for communicating causality is strengthened. In any case, such a standard would facilitate the investigative process and better guarantee the truth as its product.”
A similar approach was used in Reibl v. Hughes [1980] 1 14 D.L.R. (3d) where Laskin C.J.C. The Supreme Court of Canada ruling refuted the subjective test, stating on page 15:
“The sued patient could hardly be expected to agree to an operation despite being aware of the associated risks. Your complaint would state that, having suffered a serious disability as a result of the procedure, you are satisfied that you would not have allowed it had there been adequate risk education versus the risks of refusing the procedure. However, applying a subjective causality test would reward hindsight appropriately, even more than medical evidence would, if causality were assessed against an objective standard.”
However, in Australia in Ellis v. Wallsend District Hospital [1990] 2 Med L.R. 103, busts c. Hair transplant PTY. Ltd (not filed, NSW Court of Appeal, April 15, 1997) and O'Brien v. Wheeler (uninformed, NSW High Court, 23 May 1997).
A subjective approach was also used in the UK in Chatterton v. Gerson[1981] Q.B. 432, hill v. Potter [1984] 1 W.L.R. 641 and Smith v. Barking H.A. [1994] 5 Med L.R. 285
Many of these authorities made very helpful presentations to me in the case of Geoghegan v. Haris [2000] 3 IR 536, in which I finally concluded that a pragmatic approach to a claimant's decision was the preferred route. . My understanding of this was that the court could be guided and compelled to make an objective test in certain cases where other evidence was lacking, but in other cases where there was reliable and compelling evidence of subjective intent. , so it was open to a court to consider whether objective evidence could and should give way to subjective evidence. I see no reason to take a different approach in the present case when it comes to determining what that applicant would have done.
There are other guidelines derived from medical cases. In the case of elective surgery, lack of notification should be considered the most likely cause of loss, since a patient may choose not to have surgery if they have a real choice about it. On the other hand, if the medical procedure is absolutely necessary and there are no real alternatives, failure to raise awareness of an inherent risk may be viewed as contributing little or not at all to the patient's decision as to what course of action to take.
This case falls into the latter category because of the crisis provoked by the plaintiff's husband's financial difficulties. They were of such magnitude that they threatened not only the family home but also the family's survival.
Although Mr. Dwyer argued that the plaintiff would have "abandoned" her husband had he been properly informed, which is not evident from the evidence presented at trial. In fact, the evidence was not prompted by the plaintiff to indicate that she had completely separated her own interest in the family home from the requirement to put her husband out of the predicament in which he found himself. It was not surprising, therefore, that the trial judge himself sought to clarify the position as follows:
"Mr. Judge O'Neill: Put that aside. Given the situation you were in at the time you and your husband clashed, you recognized that it was sort of necessary to protect your husband and that was the only way to do this was to sell the available family home or was it a priority?
Witness: Well I wouldn't want to protect you sir because if you let me go to the Haydens I would have had other options at the time. He wanted to go to the Haydens. I should have been fired and come back after a week. There was no rush to sell it on our site. I know the Haydens would want their money and I'm sure their attorney would want their money, but I should have had the opportunity to see them.
Q. What did you think you could get out of this, Ms. Hayden?
A. I'm sure she would have taken the money in installments or God knows what she would have gotten. Especially when moving it would have brought something.
This exchange suggests that the plaintiff's primary concern arising from the alleged lack of notification was that it deprived her of the opportunity to negotiate with the Haydens for an extension of the deadline to vacate the family home. That doesn't mean she would have approached this whole affair in a radically different way and would rather let her husband sink than swim.
Ultimately, after hearing and observing the plaintiff throughout the length of time she testified, the trial judge was in the best possible position to assess the plaintiff's credibility, whether by reference to some objective or subjective standard, or what favors Geoghegan v. Harris and it would take something quite extraordinary to convince me, deprived of a similar opportunity to evaluate the author, to intervene in some unspecified way in the role of judge in this regard.
Towards the end of his trial, the trial judge sets out his findings and the material on which they are based as follows:
"In his own interest, he had to withhold half of the net proceeds from the sale of the family home, either at the time of sale to the O'Sullivans or through a sale later. . Had he opted to accept the sale to the O'Sullivans he would have been entitled to close for £49,000. If she refused to cooperate and a sale went to court about 2 years later, she probably would have earned less...
Of course he would have to weigh up the risks of non-cooperation and demand his half. The Haydens would no doubt have been seriously injured if the plaintiff had gone that route, and it is likely they aggressively attacked Mr. O'Carroll. This would have triggered a court order convicting him of contempt for failing to file an affidavit revealing where Hayden's funds went. If, to avoid contempt of court, you had produced the testimony in question, you would have made confessions that would jeopardize you in a criminal investigation into the matter. It is also likely that a complaint has been lodged with the Gardaí and that a fraud investigation has been carried out, with the likelihood of prosecution.
I am aware that the applicant stated in her statement that she had no interest in protecting her husband. At the time these events took place, I'm sure it was different. No doubt the plaintiff was extremely angry with Mr. O'Carroll for putting her in a terrible situation. However, it seems to me highly unlikely that they would expose him to the risk of prosecution and imprisonment with all the ensuing consequences for Mr. O'Carroll and especially for the plaintiff. her and her children. It seems to me that repaying half of his share in the sale of the family home is likely the dire consequences of Mr O'Carroll's criminal prosecution. It's the choice she would have faced at that point."
It seems to me that the above passage clearly shows that the learned trial judge threw all conflicting considerations into the crucible when deciding what the plaintiff probably did. Although Mr. Dwyer suggests that there was no evidence of pending criminal proceedings, it is undeniable that there was a risk that this would materialize and indeed it appears that preliminary communications were held with the local Gardaí. Mister. O'Carroll was virtually unable to provide affidavits at the Haydens' trial because the confessions he would have been forced to make were so large that it would at least have ended his career as an accountant. Moreover, as the learned trial judge noted, the Haydens would likely be even more aggressive behind Mr. O'Carroll if Mrs. O'Carroll had put her husband's misfortune behind her. Finally, and perhaps most importantly, the applicant was acutely aware of her own responsibility to her husband and children and indeed gave harrowing testimony that her daughter had spoken to her and pleaded with her when news of the tragedy broke not to. to separate from her husband or to break up the family.
The court was told that the family did not break up, at least until 1996.
In addition, the final closing of the sale of the family home did not take place until July 1992. Notwithstanding her initial fear and confusion, it is inconceivable that in all this intervening time the complainant herself has failed to realize that she could if she were not satisfied with the advice of Mr. Diamond or lack thereof, they sought the advice of another solicitor in Naas or even Dublin.
For all these reasons, I am satisfied that the trial judge correctly ruled on the issue of causality in this case and would therefore dismiss the appeal.

Hardiman J.

Plaintiff has filed this appeal for damages for professional negligence, breach of duty and breach of contract against defendant, who is a lawyer. In his judgment of July 31, 2002, the learned trial judge (O'Neill J.) found that the defendant acted negligently, but also maintained that the plaintiff suffered no harm as a result. He thus rejected the author's claim. The plaintiff appealed the dismissal of her lawsuit. The defendant, for its part, denies the allegation of negligence.

In 1963 the applicant married Mr Frank O'Carroll, who is an accountant. They had four children. In the late 1980s they lived in Ballymore Eustace, County Wicklow in a house they had built and shared. Adjacent to the house was land belonging to a company of which the plaintiff and her husband were managing directors and shareholders. In addition to her husband's bookkeeping practice, they had a number of other interests: in greyhounds, some of which appear to have been country bred, in an animal feed company, Alert Animal Foods Limited, in CBM Publications Limited, Carpettown Furniture Limited and Remacroft Limited. . There were other companies that the author denied any knowledge of.
In November 1988, the author suffered a catastrophe from which she says she never recovered and which underlies this process. This was the result of a lawsuit filed by Cecelia Hayden and Eugene Hayden against her husband.

The Haydens, mother and son, lived a few miles from the O'Carrolls, near Ballymore Eustace. Mister. Hayden had worked for one of O'Carroll's companies. It appears (and this court has not seen the Haydens' proceedings) that Mr Frank O'Carroll received a sum well in excess of £100,000 for investment purposes, which Mr O'Carroll took the money. . On 12 October 1988 an ex parte action was brought in the Superior Court which issued orders allowing Mr O'Carroll to reduce his estate to below £140,000 and to deal in his property or estate without the court's permission. . On October 17, 1988, these orders continued and Mr. O'Carroll was further ordered to make an affidavit, due by November 7, 1988, that:-
"1. Fully disclose your assets in and out of jurisdiction
2. Obtain under oath all documents in his possession, control or power relating to the acquisition of the plaintiff's money and its subsequent disposal by the plaintiff."

Unfortunately, it appears that Mr. O'Carroll had no defense in the Hayden lawsuit. He himself said this in this lawsuit in a conclusive way. In early November 1988, his position was very difficult and difficult. He consulted with the defendant, who was counseling Mr. Gerard Danaher. A consultation was held on November 3, 1988, at which the subject was discussed at length. Mister. Danaher warned that if Mr. O'Carroll swore that an affidavit laying down the disposition of the Haydens' money "would put him at criminal risk," as he cautiously put it in the lawsuit. On the other hand, he would of course have been held for contempt of court if he had not made the testimony ordered by the Supreme Court. Even more immediate than the possible processes that could have led to her arrest was the fact that unless an affidavit was filed and a settlement was not reached, the Haydens' attorneys would file their lawsuit in open court with devastating consequences. O. Carroll's practice as a chartered accountant, status as a corporate executive and financial adviser, general reputation and ability to generate income. At the hearing on that appeal, Ms. O'Carroll's attorney agreed that the events of early November 1988 were not only devastating for Mr. O'Carroll, but also for his family given his dependency. In the.

Given the circumstances, it was decided to work towards an agreement with the Haydens. The lawyer and the lawyer were from Mr. O'Carroll that the plaintiff was a co-owner of the family home and was a director and shareholder of the land holding company Cannamore Enterprises Limited. You have been informed that your consent and participation in any agreement is essential. He assured his attorneys that the plaintiff fully supported him and was willing to foreclose on the family home and take steps to allow the company to establish a lien on his assets. However, he only informed them of the crisis on the morning of November 14, when action was postponed in hopes of reaching an agreement.
The above steps were necessary because, after discussions between the attorneys, it was determined that the only available basis for a settlement was Mr. O'Carroll's consent to judgment, together with the collection of assets, to settle Hayden's pending position of sale to secure realization of the judgment amount. A corresponding agreement was negotiated on November 7, 1988. It depended, of course, on the consent and cooperation of the author.
In this case, on the morning of November 14, 1988, the plaintiff prepared a series of documents. These were: an indictment against the Cannamore family home and property, an Order of Cannamore Enterprises Limited, Form 47 detailing an indictment made by a company for the purpose of record keeping, declarations of protection of the family home for both the family home and land from Cannamore Enterprises Limited and a letter of consent to the use of land certificates.

From then on, the process initiated by the Haydens was formally compromised. In the summer of 1989, the house and property were put up for sale and then sold. Serious difficulties were encountered with the sale and it required the plaintiff and her husband to file specific enforcement actions against the buyers, a couple named O'Sullivan. These lawsuits were also difficult because the O'Sullivans alleged that a parallel agreement between the plaintiff and Ms. O'Sullivan could have voided the transaction. The lawsuits were eventually committed and the sale was completed in 1992, according to plaintiff's attorney on this appeal.

claims of the complainant
On November 10, 1994, the plaintiff brought an action against the defendant for breach of contract, negligence and breach of duty. The response was filed on February 21, 1996. After letters were exchanged regarding details, the defense was filed on June 6, 1996. For reasons which do not appear in the documents or files of this court, the hearing did not take place. It only took place in the months of January and February 2002 and the verdict was announced on July 31, 2002.

The claims of the author can be found in the declaration of claims. First, she alleges that, in the circumstances prevailing on November 14, 1988, the defendant failed to advise her of the need for independent legal advice and did not refer her to independent legal advice. The defendant's response to this is simple: He says he urged her to seek independent legal advice, but she refused. Furthermore, the applicant claims that she was not adequately informed of her right to justice at the family home. This statement is not easy to follow because, as the previous report shows, she was a co-owner of the place. She says the defendant failed to inform her of the provisions of the Family Home Protection Act 1976; that the Defendant failed to seek the advice of an attorney or senior counsel prior to dealing with the Claimant; which in the case of Hayden v. O'Carroll; and that it did not take into account all funds moved by the defendant in relation to "said acts and transactions." He also complains that the plaintiff told him he had no choice but to follow his advice.

decision of the High Court of Justice.
It is important to note that the Coroner's Counsel initially claimed that while there was conflict of evidence on certain points, in general there was "much agreement between the respective versions of the facts". However, where there was a conflict, he preferred the defendant's evidence to that of the plaintiff. It did so for a number of reasons, which were convincingly set out in its judgment, 13 and following which I do not wish to repeat here. Some of the author's evidence could not be correct, which was supported by the documentary evidence and the testimonies of other witnesses. Moreover, even when reading the log, the author's statement turns out to be that of a person tormented by a sense of injustice and subordinating everything, including his own subjective desire to provide truthful evidence. Their evidence varied significantly on important issues. For example, he denied knowing that he owned half of the family home:
“I didn't know anything about my rights, I didn't know anything. I guess I stayed in the country, took care of the house and had the kids, and I waited for my husband to do his job and everything goes well.” However, when she referred to the documents and from the judge When questioned, she admitted that she knew the house belonged to them both. As it was a piece of land next to the family home, she said at first, "I didn't even know there was a company... I'm sure I didn't even know about a company that my husband had, know." She, I didn't know about her," but soon after, he admitted that he knew "the field" was owned by a separate company. They claimed to be ignorant of legal issues, contracts, fees and the like, but had previously been involved in the purchase and sale of real estate and had raised a charge on her family home in 1982. In fact, she "believed" that she had "legally terminated" the purchase of land in Ballymore Eustace.

The crux of the plaintiff's case was that she was never advised to seek independent counsel before deciding to sign the documents, which she signed on November 14, 1988. The learned trial judge accepted the plaintiff's account. which he was able to give with some accuracy because he had contemporary assists. The learned judge of first instance said:
“I accept the evidence provided by the defendant's two secretaries that Mr. Diamond checked attendance thoroughly and promptly. I believe that what you have said in connection with the transactions at issue in this proceeding is a fair and truthful representation of the incorporated entity. I don't accept for a moment that Mr. Diamond made every one of these records."

The last sentence refers to an assertion that the author made as evidence. He had often and emphatically stated that he had never been advised to seek the advice of another attorney. She raised this accusation loudly, although after asking a lot of questions she said she did not have a good memory. Also, and perhaps understandably, her reaction to the sudden revelation of her husband's embezzlement exposed her to the Haydens' claims of going "bananas," "insane," and "hysterical," as she variously described it. She had never gotten over it. I believe it was this last reaction that led them to claim that Mr. Diamond had faked his assists, an allegation for which there was no objective support. On other occasions, however, he had enough insight to say:
“I lost my family home, I had to sell my family home to pay
debts of my husband.

That's the sad reality, by the way. The fact that her husband failed to prepare her for this reality until the need to sign legal documents was imminent was a terrible omission on his part. It was not the complainant's fault and a serious injustice against her. The difficulties that led to the sale of the family home did not bother him. He was so obsessed with that fact that he couldn't seem to tell that she wasn't Mr. Diamond either.

The complainant's main allegation that Mr. Diamond in no way advised her to seek independent counsel, it was kept as evidence for that allegation and the logic of the allegation led her to make another allegation that the assistants investigating her in the case would advise. they were made. By making these hurtful and damaging allegations, Ms. O'Carroll, who was the victim of a grave injustice at the hands of her husband, added Mr. Diamant. It does not appear that the learned trial judge was pressured into accepting this basic claim and of course the case proceeded on hearing this appeal on the grounds that Mr.'s attendances accurately reflected what was happening.

Complaint Submissions.
The plaintiff's case proceeded on the grounds that even assuming advice was given to seek independent advice, breach of Mr Diamant to Mrs O'Carroll otherwise. In particular, it has been claimed that he should have done more to get her to take independent advice: it was once suggested that he should have called another lawyer in person. O'Carroll and put her on the line, forcing her to say something to the other practitioner. More realistically, it was urged in both the Supreme Court and this court that if she did not proceed with the confiscation and subsequent sale of her share of the family home, he should have himself informed her of her rights and options. This was the point of view which finally found the support of the learned judge of the first degree.
Negotiations between plaintiff and defendant.
The description of these transactions accepted by the investigating judge is contained in two statements by the defendant dated November 14, 1988 and November 15, 1988 succinctly as follows:
14. November 1988.
I answered Frank O'Carroll when he called me from home. He said he was talking to his wife and they didn't know what to do. She asked me if I wanted to talk to her or not. I told her I think she should seek independent legal counsel to protect her share of the house.
He said she was very upset about the matter. She then called and I told her that I thought she should seek independent legal advice if she had any concerns about this. He said if he had known beforehand he would have gone to Mrs. Hayden. I said I didn't think it would help much as I felt her lawyers were advising her and she would not raise matters directly with the defendants.
I have reiterated that if you have any problems, you should seek independent legal advice. I did tell him though that I think we'd done a pretty good job protecting Frank so far and if it had been this time last week I would have told him he was preparing to go to jail for contempt of court go. , because then we would not be able to provide the necessary explanations.
He said he didn't know any lawyers and I told him there were many reputable lawyers at Newbridge & Naas if he wanted to consult one of them. I have said that in an hour or so a lawyer will not be able to advise you on all matters relating to this case and it would be a matter where we would have to buy time with the other party.
I told him that I hadn't been briefed on the woodwind matter regarding O'Sullivan & Lawlor and that obviously that was another situation that we would have to try to resolve at a later date, but at first I felt that was all what i could do was every time a case.
She said she was very concerned about Mrs Hayden getting her money back and with that in mind she wanted to do whatever it took to get it.
He said he would think about the situation and then he said Frank O'Carroll wanted to speak to me. Eventually I told her that if in doubt she should seek independent legal advice and I could not advise her on the matter.
I then spoke to Frank and he told me that he had discussed the matter further with his wife and that he would arrange to come to my office later. I told him to notify me as soon as it was decided and that I would see Mr. Danaher now and try to postpone the matter to another time.

15. November 1988.

Help Mr. and Mrs. O'Carroll when they call. First I explained the situation to Mrs. O'Carroll about what would be signed this morning if she was ready. I told her I couldn't advise whether to sign or not and that it was entirely up to her as she had already indicated that she wanted to try and keep her half of the house. She said she is ready to accept the situation now that she understands it better. She said she knew they had to sell the house and they both decided it was the only option available to them. She said she wanted to go with Mrs Hayden because she was a friend of hers and I told her I didn't see fit to do that until things were fully settled.
I then went through all the forms to sign and explained what the mortgage would involve and that it was a fee that would come after the AIB fee. I said that if there were not enough proceeds from the sale of the house to cover the amount owed to the Haydens, the Greyhounds would have to be sold as 8 acres owned by Cannamore Enterprises and I explained the terms of the settlement as written and they both read all the papers and were happy to sign them. In connection with the issuance of the Family Home Protection Act affidavits, they said they would go to the Lombard Street office and obtain a copy of the relevant extract and then take an oath on both affidavits and mail them back to me.
I made it clear to her that I am not forcing her to sign anything and she said she understood and was willing to sign all paperwork and said it was the only way to protect Frank in this matter.
I then arranged for their signatures where appropriate and said the matter was adjourned until next Monday and hopefully would be finally resolved by that time. I told them that if there was a priority issue, I would let them sign the land registry forms and the application to obtain the real estate certificate.

These documents indicate that Mrs. O'Carroll was informed that Mr. Diamond could not tell her whether or not to sign the documents in question. He realized that she had already indicated that she would try to keep his interest in the house. She was urged to seek independent legal counsel and he offered to buy her the time she needed to seek meaningful advice from another attorney. It's more than likely he could, as the Haydens believe it would have improved the quality of their security. The plaintiff's recorded statement that she is not aware of any lawyers is categorically contradicted by her own statement, in which she names at least three who previously worked for her.

The plaintiff's case, as it now stands, rests on the assumption of the veracity of what was recorded in those apparitions and on the assertion that the defendant himself did not do enough on that basis. It was specifically suggested, based in part on Mr. O'Donnell, a specialist who came on behalf of the defendants, that, after accepting her as a client, Mr. Diamond should have advised her on the merits of the complaint. questioning whether or not he should sign the papers and that, in the words of the learned coroner, he was “wrong, Mrs. of an obvious or even egregious nature which leads inevitably to the conclusion that his conduct in this aspect of the transaction was not conforms to the standard that would be expected of a legal professional in his position and he was therefore negligent".

relationships between the parties
The relationship between the plaintiff and the defendant was difficult for two very different reasons and marked by the obvious potential for conflict. From a legal point of view, Mr. Diamond had to act on behalf of two parties, husband and wife, one of whom should confiscate his estate on behalf of the other. In these circumstances it is pertinent to recall what Barron J. said in Carroll v. Carroll [1999] 4 I.R. 241:
“The final allegation made by the defendant is that the donor obtained independent legal advice from Mr. Joyce. The question of legal advice was raised before the Supreme Court (Budd J.) in Gregg v. Kidd [1956] I.R. 183. On p. 201 and 202, Budd J. upheld certain principles of Farwell J.'s judgment in Powell v. Powell [1900] 1 chap. 243. These were:
(1) The authorized representative acting for both parties cannot be independent of the de facto donee; It is
(2) In order to convince the court that the donor acted independently of any influence from the beneficiary and with full appreciation of what he did, it is necessary to show that the gift was made after the nature and effect of the transaction were complete explained. to the donor by an independent and qualified person. In addition, the advice must be given with knowledge of all relevant circumstances and as a competent adviser would if acting only in the best interests of the donor.

If one accepts these principles, there can be no independent advice from Mr. Joyce, for at best he acted mutually."

A little later Barron J. said:
“As I have said, an attorney or other professional does not fulfill his or her duty to a client or patient simply by doing as asked or directed. You are required to use professional skill and judgment, and you will not do so by recklessly following directions without pausing to consider the appropriateness of doing so. Having done this, you must give advice as to whether what is being asked of him is appropriate or not. Here his role was to advise the donor to seek independent advice.

This passage is, I believe, a clear and concise statement of law and fatal to the claim that the defendant should have advised the plaintiff in connection with the transaction and "erroneously withheld [his] advice". In fact, the learned judge first degree once said, commenting on part of the passage quoted above:
"It suggests to me that in a conflict situation between the plaintiff and Mr. O'Carroll, the only person that Ms. O'Carroll cannot counsel is the defendant."

Carol v. Carroll postdates these events, of course, but he is reaffirming legal tenets that have been established since 1900, if not earlier.

I had the opportunity to discuss a very recent English case on the duties of attorneys, Hilton v. Barker Booth & Eastwood [2005] 1 AER 651, where a law firm was acting on behalf of two different people involved in a real estate development. The firm was aware of information about one of these individuals (who was serving a prison sentence for a white-collar crime) about which they were obligated to maintain confidentiality. Consequently, they did not communicate this to the other customer. The House of Lords held that if a barrister put himself in the position of having two incompatible duties it was his own fault. The attorney who had conflicting duties to two clients could not choose one over the other. He had to do both as best he could, and “this may include performing a duty to the letter and paying compensation for his injury to the other. But in any case, the fact that he put himself in an impossible position does not absolve him of his responsibility. I have no doubt that this is correct. However, I do not believe that Mr. Diamond "decided to put himself in an impossible position". The impossible position referred to in the Hilton case and others up to Moody v. Cox [1917] 2 chap. 71, is to take orders from two people with conflicting interests without disclosing the facts. At Hilton, attorneys agreed to act on behalf of both parties, despite knowing that there was material information about one that they could not share with the other because of their professional duty to that individual. In addition, the lawyers themselves made a substantial loan to one of the clients, which in practice would only be recoverable if the other client participated in the proposed development. None of these facts were revealed.

In the present case Mr. Diamond clarified that not only should the plaintiff seek independent legal advice, but also that he could not advise the plaintiff on the vital matter of the collection and subsequent sale of the family home and other property. Based on Carroll v. Carroll, you were absolutely right about that. The fact that, having said this and instructed by the plaintiff, "I was quite willing, now that I understood the situation that way, to accept it...the only course of action available to them," further explained the necessary documents to him and have them signed after his service in his office? I don't think so, at least in the dramatic and urgent circumstances of this case. In Finley v. Murtagh [1985] IR 232 at 254 referred Henchy J. to the decision of the House of Lords in Hedley Byrne v. Heller [1964] AC 465 as follows:
"...Because the circumstances are such that an accused undertakes to exercise professional care and skill in dealing with and to do so to any person who would be expected to rely on that care and skill, such person, if convicted of such violation, defendants sue in the offense of negligence for failing to show that care and skill."

It seems to me that the defendant's counsel here has not undertaken to show professional care and skill to the plaintiff, except in the purely ministerial matter of filing indictments and other documents. He made it clear that in the circumstances of the case he was unable to perform the other and broader duties that an independent counsel would perform, namely to discuss whether he believed it to be prudent, appropriate, necessary or desirable to do so. sign the relevant documents.

Nor do I believe that Mr. Diamond had accepted responsibility, Mrs. O'Carroll as to the merits of the transaction and she proceeded with it, such advice would have been effective in defending the transaction against challenge. . . The situation that would then arise could certainly have been described by Carroll v. Carroll, where the attorney gave no advice. But Mr. Diamond would still be a person who, by the standards established for over a century, would not be independent of Mr. O'Carroll, the person for whose benefit the transaction was to be consummated. Likewise, none of his advice could meet the requirement that "the nature and effect of the transaction be fully explained to the donor by an independent and qualified person". Of course, Mr. Diamond was a qualified person, but given the circumstances of the case, he could never be an independent person.

The other aspect of major difficulties faced by both plaintiff and defendant was the extremely tense and extremely urgent nature of the transaction in question. Because of this, it wasn't even remotely comparable to an ordinary billing or wire transfer transaction. There was an imminent threat to Mr. O'Carroll and therefore to the good of his family. This threat also extended to destroying their reputation, which would make it difficult or impossible to generate profits in alternative ways. His professional position as an accountant was also under acute threat. Less immediate but very real was the threat of criminal prosecution for fraud. I am satisfied that a fraud report would have been filed with the Wardens had the Haydens' lawsuit not been settled: This is from Mr Comyn, Attorney. In fact, at the hearing on this complaint, it was agreed that on November 14 and 15, 1988 an immediate crisis situation existed.

In the circumstances, Mrs O'Carroll simply refused to accept independent advice, arguing that she did not know any lawyers, which was not true. Nevertheless, the very acute circumstances prevented the defendant's defense attorney from taking a number of courses of action that would otherwise have been open. For example, he could not say that he would not act on behalf of either party to the transaction or that he would not act until she accepted the advice; he owed Mr. O'Carroll that he could not resign. For this reason, it could not advise the complainant. It is, in my opinion, wholly impractical to say that he would appeal to Mrs. O'Carroll to any other counsel in the manner suggested or otherwise suggested. In fact, it was preferable that Mrs. O'Carroll consulted an attorney of his choice rather than Mr. Diamant.

In my opinion, Mr. Diamond took the only steps possible to have Mrs. O'Carroll seek independent counsel and expressly state that he could not advise her on whether or not to go ahead with the proposed transaction. Had you done less, you would have met the requirements in Carroll v. Carol. Had he attempted to do more, his board would not have been independent and would not have met the requirements of Carroll v. Caroll on that. In fact, he would have "decided to put himself in an impossible position".

I would like to emphasize that my conclusion in this regard is based on a combination of the arguments presented in Carroll v. Carroll and the very difficult and unusual circumstances of the case. My decision should not be construed as implying that, in other circumstances, an attorney is doing his or her duty simply by asking a person to seek independent advice and accepting a decision not to do so in moderation. Depending on the circumstances, your obligations may be much greater and may include refusing to act until such advice is followed. Indeed, this may be a prudent course of action on behalf of your original customer, the person providing a supply or guarantee, and the person on whose behalf the guarantee is given. But each case must be judged on its own facts. The facts here are unusual and present an acute dilemma which I believe Mr. Diamond handled as well as any attorney under the circumstances could.

Evidence from Mr. O'Donnell.
Concluding that the defendant should not have rejected the plaintiff's advice, the trial judge heard testimony from respected probate attorney Mr. Rory O'Donnell, who was summoned by the defendant. The judge said:
"In my opinion, the solution to this difficult problem lies in Mr. O'Donnell. He seemed surprisingly unfazed by the conflict of interest issue. His argument, as far as I understand it, was that in circumstances where there was clearly no marital dispute between the plaintiff and Mr. O'Carroll, he seemed to have no difficulty in taking advice and discussing all matters with them. . both. In this context, he recognized that the options that the actor has must be discussed.

I would like two comments on Mr. O'Donnell's testimony.

There is no doubt that Mr. O'Donnell is an outstanding attorney who is rightly credited with having vast experience in transportation matters. So is what is, for example, on page 114 of the Term of Evidence served on February 12, 2002 permissible? There, after a 19-line statement on the facts of the case, plaintiff's attorney concluded, "If that were the case, what would Mr. Diamond's obligations be?"

In Midland Bank v. Hett, Stubs and Kemp [1979] Ch. 384 at 402, regarding the attorneys' evidence, Oliver J. said what they would have done in a particular situation:
"I must say that I doubt the value or even the admissibility of this type of evidence, which seems to become commonplace in cases of this nature. I believe that the extent of the legal duty in a given situation should be a matter for the Court of Justice. If there is a practice in a particular profession, a recognized standard of conduct established by a professional institute or sanctioned by common usage, evidence of it can and should be obtained. But evidence that is nothing other than the opinion of a particular professional as to what he thinks he would have done if he had been hypothetically placed in the defendant's position without the benefit of hindsight is of little use. To court; while proving from the point of view of the witness what was legally the duty of counsel in the particular circumstances of the case is, in my view, inadmissible because that is precisely the issue for which the Court has jurisdiction to decide'.

In this case, the learned trial judge was concerned about parts of Mr. O'Donnell precisely because he was asked to comment on legal matters. The contribution of the parties in legal matters must be by reference, not by evidence. As the matter has not yet been fully discussed in the Supreme Court, I do not wish to make any substantive rulings on this basis, but merely to state that I think there is much to be said for the comments by Oliver J. quoted above. . I would like to emphasize that these questions arose during our interrogation and not voluntarily from Mr. O'Donnell.
In any event, I am far from convinced that (assuming it is permissible) a strong and useful statement by Mr. O'Donnell. In fairness to the witness, I would like to emphasize that your brief direct evidence seems perfectly clear: You said that a lawyer would normally accept a client's instructions that his wife, the client's wife, was willing to enter into a particular transaction. He said that in the circumstances of November 14, 1988, the husband's attorney was required to advise the wife to seek independent counsel and that this appears to have been done. Asked about the situation that arose when a hypothetical client refused to seek legal advice from an independent source, he said that if the client had provided the instructions recorded in the November 15 apparition, "I think that would have been normal “. . and I would have thought that a lawyer in this situation, as I understand it, other than mentioning independent counsel, wouldn't have fired somebody [outside] and said, 'sorry, I can't do that'. Well, there would be circumstances where you would be required to, but I don't think that's the case in this case."

He said such an obligation may arise when there are marital disputes of which the attorney is aware or when the prosecution is necessary to secure credit for a frivolous project. He said he thought it reasonable for the defendant to comply with the charges, as he advised the plaintiff to seek legal advice, although he said he would have "in a perfect world" gotten her to sign a document stating she confirmed that he had been advised to do so. . seek independent advice.

It should be noted that Mr. O'Donnell also said (pp. 80/81) that although he was required to "regularly" provide independent advice in difficult circumstances, "I don't think I've ever had a situation, anywhere, where, on independent ones Council, someone did not do something. The decision was basically to support or not to support, and the problem of the family problem is that it is the engine."(sic)

At the end of his testimony, Mr. O'Donnell changed his testimony on this point (page 116):
"I think the advice I would have received from an independent person would have been on the consequences of signing and the consequences of not signing and I have expressed the opinion that I cannot imagine how the discussion on both days would have been without it these topics could have gone that were discussed. , I have a specific point tied. When discussed, shaking and killing something that made sense to him.

These passages, and others like them, I think illustrate the great difficulty (aside from admissibility) of calling a witness to argue legal issues without setting out the law in its entirety. At no time was Mr. O'Donnell asked to consider the impact of the decision on Carroll v. Carroll and the cited cases of hypothetical advice or discussion in which Mr. Diamond was a party as opposed to another attorney. Apparently, if another attorney had discussed with the plaintiff the consequences of signing or not signing, he could have been reasonably expected to do so in relation to the accounting documents. However, this does not address the situation where the applicant declined independent advice and Mr Diamond was disqualified from independent advice due to a conflict of interest and was unable to fulfill her obligations to her husband. The learned trial judge thought Mr. O'Donnell was "surprisingly indifferent" to the question. That in itself, I do not think, is surprising: the learned trial judge had, and Mr. O'Donnell did not, have the benefit of being tried in Carroll and Carroll and the older cases cited there, and exhaustive presentations were made about it. . In my opinion there is no legal basis for assuming that Mr. Diamond, unlike any other attorney, would have with Ms. O'Carroll the consequences of whether or not he signed the relevant documents, or his legal advice in any way given, as opposed to ministerial legal assistance.
Looking back at a transaction often suggests patterns that are unattainable in practice. However, in the circumstances of this case, even looking back now over a period of seventeen years, I do not see that Mr. Diamond can be held responsible for his conduct as he did. The plaintiff alleged that Mr. Diamond, as counsel, "overruled" his statement that he could not give advice. However, since that last statement is legally correct, the filing means everything he did would be wrong, a classic "Catch 22," which is very unfair for a person in Mr. Diamond.

Nor do I believe that Mrs. O'Carroll actually accused Mr. Diamond for any significant time after the events of November 1988. She was understandably disturbed and deeply troubled, even saddened, by the events and the loss of her home. The brutal abruptness with which her husband's position was revealed to her was a factor exacerbating this. As I have already said, she was the victim of a great injustice on the part of her husband. Her already miserable situation was made worse in the years that followed as she and her husband suffered from more recent serious health problems and the failure of their marriage and separation.

But the plaintiff seems to have identified Mr. Diamond as the person responsible for their misfortune until about six years after the events of November 1988 in November 1994. This is true even though after November 1998 events unfolded slowly: it took about nine months until he had to sign the deed of sale and then there was a long delay in completing the sale during which there were specific enforcement proceedings by the O'Carrolls against the buyers. In total, it took up to four years to reflect on what happened in a more relaxed situation than on November 14 and 15, 1988 before the sale was completed. But no lawsuits were filed as of four days before the sixth anniversary of those events.

The plaintiff, as she herself said at one point in her statement, "had to sell her family home to pay off her husband's debts." This was a tragedy for her and sadly ruined her life judging by the tone and content of her testimony. But it resulted from her husband's embezzlement and the imminent threat to his livelihood and that of his family that these crimes exposed him to. The fact that the complainant was only made aware of this fact at the last possible moment was a further tragedy for her and presented Mr Diamond with an acute professional dilemma. But nothing he did was the cause of the tragedy that befell the plaintiffs. I believe that he acted correctly in the very difficult circumstances he found himself in and that he cannot be considered negligent for acting that way. I also concur with the judgment that will be rendered by Kearns J. and his conclusion that no other course of action by the defendant in the circumstances would have prevented the results alleged by the plaintiff.

For these reasons, which differ somewhat from those of the learned jurist, he would uphold his commission in rejecting the author's assertion. First, the defendant acted neither negligently nor in breach of duty or contract; Second, nothing the defendant did was the cause of the plaintiff's misfortune, and nothing the defendant could have done would have prevented it.

Dunne (an information) v. National Maternity Hospital

[1989] IR 91 Supreme Court

Finlay C.J.

These are two appeals brought by the defendants against a judgment and order of the High Court of 2 August 1988 awarding the plaintiff, after trial before a judge and jury, a sum of £1,039,334 in damages and negligent damages against both defendant plaintiffs The allegation is that he was in his mother's womb due to the negligence of the first defendant ("the hospital"), its employees and agents in managing his mother's labor and delivery and delivery, and also because he sustained significant brain damage suffered the negligence of the second defendant ("the doctor"), who was the consultant obstetrician who cared for her mother regarding labor and delivery.
The facts
The facts giving rise to this assertion can be briefly summarized. The applicant was born on 20 March 1982 and is the second child of Mr and Mrs William Dunne, who resides in Bray, County Wicklow. In connection with the birth of her first child, who is about two years older than the author, Mrs. Dunne has visited the doctor as his personal consultant obstetrician. Your son was born
in the hospital and her pregnancy and delivery prior to this birth were normal and uncomplicated. When she becomes pregnant again, Mrs. Dunne consulted the doctor again and was taken in by him as a personal patient. He arranged for the child to be born in the hospital. She saw the doctor several times during the course of her pregnancy and, by arrangement, also a family doctor, Dr. Byrne, who was active in Bray.
On March 10, 1982, when she went to see the doctor for one of her regular appointments, she asked him to check if her pregnancy could be a twin. The doctor performed an ultrasound scan on Mrs. Dunne and was consequently convinced that she was indeed pregnant with twins; that both were of equal height and appeared to be in good health; that the first twin or leader had a normal birth at the apex and that the second twin had a nonconforming birth. Woman. Dunne remained healthy and free of complications throughout her pregnancy.
On the morning of March 20, 1982, which was a Saturday and two weeks before the scheduled deadline for the full completion of Mellizos' birth, on the 3rd Dunne, after having been in pain during the night. , saw Dr. Byrne around 9 a.m. He examined her and told her she was an inch or two dilated and was in labor and advised her to go to the hospital immediately. He expressed the opinion that his children could be born at noon. Receiving this advice, Mrs. Dunne called the doctor, told him she was in labour, went to see Dr. Byrne and he said it was an inch or two wide. He told the doctor that he was going to the hospital, and his proof was that he said to him, "Go ahead, I'll wait for you." Woman. Dunne was then taken to the hospital by Bray's husband and arrived there around ten thirty. She entered the delivery room at 11:15 am. M. and the nurse in charge examined her and measured the extent of her enlargement by two centimeters. The doctor was not in the hospital when Mrs. Dunne, although he had been there to see patients before. At about 11:30 he called the hospital to find out if Mrs. Dunne had arrived and, after being informed that she had been admitted to the delivery room, asked to be named after the doctor who was hers had punctured membranes. who work in the hospital. At 12:10 p.m., the doctor was informed by the nurse in charge of the delivery room that the doctor in question had perforated the membranes and found grade 1 meconium. He was also informed that auscultation had found a fetal heart and that the die Dilation was three centimeters. The physician, upon receiving this information, knew that it was hospital practice in the case of a known twin pregnancy to attempt to identify a single fetal heart and advised no change in practice. The plaintiff testified that around 1:40 p.m. she experienced turbulent fetal movements that lasted about fifteen minutes. She asked the nurse treating her to inform the doctor of this fact and ask him to come to her. Around 14 o'clock. M. The nurse called the doctor and informed him that the labor was progressing very slowly and the cervix was still 3 centimeters dilated. The doctor then ordered the plaintiff to be asked to walk up and down the aisle to speed up labor. This happened between 2:00 p.m. and 4 p.m. Against 4 p.m. The person in charge called the doctor and informed him that despite walking and the time elapsed, there was no progress on the dilatation, and the doctor ordered Ms. Dunne to have a drop of oxytocin. and asked the teaching assistant who worked at the hospital to examine her.
At 4:15 p.m., Mrs. Dunne was treated with oxytocin and at 4:20 p.m. examined by the teacher's assistant. M. He found that the dilatation of the cervix had progressed to two inches; that there was little progress at work; that the membranes had apparently resealed and re-punctured the membranes, finding a grade 2 meconium deposit that stopped oxytocin, which consequently was only active for five minutes. He performed a fetal blood test on the scalp of plaintiff's baby, who was the primary twin, and it had a pH of 7.31, which would be normal. He then attached a continuous electronic monitor to the plaintiff's scalp. At 5:08 p.m. the doctor was told by telephone that Dr. Dunne was that her cervix was fully dilated and that she was giving birth to her first twin.
At 5:15 p.m., the plaintiff's baby was born naturally and minutes later, the doctor arrived at the hospital. At 5:30 p.m., the second twin was stillborn and showed signs of maceration on the anterior abdominal wall. At birth, the applicant was incubated with breathing difficulties and grade 3 meconium was suctioned out of his trachea. He was a little distressed and was transferred to the intensive care unit. Over the next few days, he showed signs of severe brain damage, including seizures, limb cycling and rolling eyes. The brain damage he was born with is irreversible and he is now a severely mentally handicapped spastic quadriplegic.
The trial and the verdict
The trial lasted fifteen days between July 5 and July 25, 1988, and evidence was presented in favor of the plaintiff and each of the defendants, which included a large number of medical experts. All hospital reports and documents relating to the applicant's birth were made available and freely quoted and relied upon during the proceedings. After all the evidence was completed, each of the defendants requested acquittals, and the trial judge denied those requests. After the discussion, the jury left a series of questions that were answered, leading to the verdict and trial. to which I was referring. To understand the issues raised in this appeal, it is necessary to state these issues, though extensive, in their entirety, along with the jury's responses. The questions are as follows:

1. Had the applicant suffered brain damage on 20 March 1982 due to a lack of oxygen for a few hours during labor and in hospital?
Answer: yes
If the answer to question 1 is yes, please answer the following questions:
2.(a) Where the authorities of the complaining hospital have instructed their nursing staff to attempt to establish the presence of two fetal hearts in the case of a known twin pregnancy (a) upon admission of the complainant's mother to their hospital; It is
Answer: yes
(b) The authorities of the accused hospital should have instructed the nursing staff to Jackson's inability to identify the presence of two fetal hearts?
(a) upon admission; any
Answer: yes
(b) During labor, was it not possible to identify the presence of two fetal hearts?
Answer: yes
3. When the nurse in charge, Dr. Jackson at 2:00 p.m.? not only was labor slow, but also (a) there was excessive fetal movement?
Answer: yes
and (b) that Mrs. Dunne had requested and recommended his presence at the hospital?
Answer: yes
4.(a)(i) Dr. Should Jackson have examined the plaintiff's mother upon her admission to the hospital, trying to identify the presence of two fetal hearts?
Answer: no
(ii) dr. Before admitting plaintiff's mother, should Jackson have ensured that nursing staff were instructed to attempt to identify the presence of two fetal hearts?
(a) on your admission?
Answer: yes
(b) and regularly during labor and to inform her when the identity of a second fetal heart cannot be determined?
Answer: yes
(b) If Dr. Jackson had not been able to identify the presence of a second fetal heart, or had he been informed that it was not possible to identify the presence of two fetal hearts, should he have had an ultrasound?
Answer: yes
(c) If the answer to (b) is yes, did you have at the time of Ms. Dunne or at any time during labor and before 1:30 p.m.? M. had that twin number two died?
Answer: yes
(d) If the answer to (c) is yes, should you have electronically monitored William's heart through a clip attached to his head?
Answer: yes
(e) If the answer to (d) is yes, should you have determined that William had severe fetal problems before 1:30 p.m.? m?
Answer: yes
(f) If the answer to (e) is yes, should William have been delivered by cesarean section before 1:30 p.m.? m?
Answer: yes
5.(a) Upon notification at 12:10 p.m. On 20 March 1982, should he have treated the applicant's mother in hospital for the presence of grade 1 meconium, examined her and attempted to establish the presence of two fetal hearts?
Answer: yes
(b) If (a) yes, and you could not determine the presence of a second fetal heart, should you have had an ultrasound?
Answer: yes
(c) If (b) is yes, would you be sure twin number two was dead?
Answer: yes
(d) If (c) yes, should you have electronically monitored William's heart through a clip attached to his head?
Answer: yes
(e) If (d) is yes, would you be certain that William was in severe fetal distress at the time?
Answer: yes
(f) If (e) yes, should she have delivered William by cesarean section?
Answer: yes
6.(a) If Dr. Jackson should have delivered William by cesarean before 1:30 p.m. Could Williams' brain damage have been prevented?
Answer: yes
(b) If Dr. Jackson should have given birth to William before about 2 p.m. M. Could Williams' brain damage have been prevented?
Answer: yes
7. Rate the damage under the following headings:
(a) Care costs up to the age of 16:
Answer: £132,561
(b) Expenditure of the housemaid up to the age of 16 as an assistant to the mother:
Answer: zero euros
c) Accommodation of the applicant up to the age of 16:
Answer: £50,000
(d) Lifetime residential care costs after the age of sixteen:
Answer: £351,850
(e) Expenditure on special foods, disposable diapers, medical fees, cranes, etc.:
Answer: £25,923
(f) Loss of income:
Answer: £12,000
(g) General Compensation for Pain and Suffering and Loss of Comfort:
Answer: £467,000
Total: £1,039,334
grounds of appeal
Both defendants appealed against the determination of liability and the assessment of damages. The hospital filed 33 grounds of appeal and the doctor filed 33 appeals. These grounds of appeal, many if not all similar, fell into certain broad categories and almost all of the 66 grounds so filed were fully advanced before this court. In general terms, the main issues to which the present appeal relates can be identified from the allegations made by the two defendants and the answers given to them on behalf of the plaintiff. They are the following:
1. Was there evidence to support the jury's conclusion on Question 1 that the plaintiff suffered brain damage as a result of being deprived of oxygen for several hours during labor and delivery?
2. Was there evidence to support the conclusion set out in the jury's answer to Question No. 6 that plaintiff suffered the brain damage after 1:30 p.m. M. or 2 p.m.?
3. Was there evidence to support the jury's conclusion in answer to questions 4(e) and 5(e) that the doctor attached an electronic monitoring device to the fetus before 1:30 p.m.? M. and before 14:10. Who would have found out that the applicant was in severe fetal distress at that time?
4. Could the trial jury, if properly guided by applicable principles of law, conclude that they acted negligently in failing to attempt to identify a second fetal heart
(in the hospital?
(b) the doctor?
5. Are the defendants, or any of them, entitled to a retrial order in any of the following matters, or a combination thereof?
(a) The adverse effect of rugby match indications and physician questioning on oxytocin administration.
(b) Decision excluding Professor O'Donoghue's evidence on encephalitis based on examination of medical records.
(c) The fact that the trial judge in Question No. 1.
(d) The lack of evidence of negligence in Questions 2, 3, 4 and 5.
(e) objections to collection based on:
(i) An allegation that there was an imbalance between the Claimant and the Defendants.
(ii) That, considering the length and nature of the process, there was insufficient guidance on the detailed evidence presented by both parties.
(iii) For the trial judge's failure to perform his mandate before the jury and, upon request, as an additional fee, to give the jury reasonable direction as to the principles of law applicable to the question of negligence. against the hospital and doctor for failing to attempt to identify two fetal hearts by auscultation, having particular reference to that court's decision in O'Donovan v. Cork County Council [1967] I.R. 173
6. With regard to damage, the following values ​​were found to be excessive:
(a) The cost of care up to the age of 16 of £132,561.
(b) The provision of accommodation for the applicant up to the age of 16 worth £50,000.
(c) The cost of lifelong in-patient care from the age of 16 worth £351,850.
(d) General Indemnification for moral damage and loss of service valued at £467,000.
I am satisfied that the issues raised by the appeal will be placed in separate categories. The first three questions relate solely to examining whether there was evidence supporting the jury's conclusions to which these questions relate. Questions of law have been raised about the reasoning before us in relation to this Court's approach to this issue and, more generally, to what has been termed perverse judgments. If the defendants, or any one of them, succeed in any of these three matters, they are entitled to have that court dismiss the plaintiff's claim. In relation to paragraph 4, a point of law has arisen regarding the argument before us regarding the proper meaning and interpretation of that court's decision in O'Donovan v. Cork County Council [1967] I.R. 173 and in particular to the question of the proper instructions that a court should give to the jury or follow in the case of a trial before a single judge when questions of medical practice arise. If either defendant succeeds in one or more of these counts in relation to the issues set out in paragraph 5 above, the possible appeal would be to allow the appeal and order a new trial.

To her
Conclusions of the jury
The defendants put forward two alternative allegations. First, the disputed findings of fact are not supported by any evidence and the
The trial judge erred in law by leaving the various questions of fact leading to these conclusions for the jury to decide. The second was that even if there were evidence that could be left to the jury on the issues at stake, the evidence to the contrary presented by the defendants was so overwhelming that the jury's conclusions must be regarded as perverse and unreasonable and must be dismissed. In support of the second proposal, it relied on the Supreme Court's earlier decision in McGreene v. Hibernian Taxi Co. [1931] I.R. 319. The jurisdiction of this court on appeal in relation to findings of fact made by the Superior Court is set out in its decision in Northern Bank Finance v. Charlton [1979] I.R. 149. In this case, O'Higgins C.J. in the course of his sentence, on p. 180 it was expressed as follows:
“A judge's findings of fact can and will be reviewed on appeal. Such determinations are subject to normal tests to determine whether they are supported by the evidence presented at trial. If such conclusions are firmly based on sworn testimonies of witnesses that the judge has seen and heard and accepted, then the Court of Appeals, recognizing that this is the area of ​​credibility, will not intervene.
Henchy J., addressing the same question in his judgment, on p. 191 states:
“In a civil proceeding such as this, where a particular fact has been decided by a court of fact, whether a judge or a jury, and the resolution of the matter depended wholly or substantially on the choice of the contested oral testimony over another, an appeal to a court , which relies on a written record of oral evidence, will not usually overturn that decision simply because an alternative version of the oral testimony seems more acceptable. The Court of Appeal will reverse a finding of fact on the basis of evidence only if the Court, in taking oral or other evidence, whether oral or otherwise, finds that, despite the merits, the fact that the Court of Appeal was required to see and hear the witnesses may version of the evidence on which he acted could not reasonably be correct. For example, if the question of fact was whether a defendant was driving on the correct side of the road at the time of the collision, and in the face of a tangle of conflicting oral testimonies on that point, the judge (or jury, in this case) expressly or implicitly accepts the defendant's version , that his vehicle was on the correct side of the road at the time of the collision, so in this case an appellate court would normally be precluded from dismissing that finding of fact on the grounds that it was a matter of fact in relation to conflicting oral testimonies that it cannot deal with equal to that of the trial judge (or jury) who heard and saw the witnesses. However, if, after reviewing all the evidence, indisputable evidence of tire tracks, glass or road mud indicates that the defendant's evidence (that his vehicle was driving on the correct side of the road) may not be accurate, the Court of Appeals may dismiss the finding of relevant facts.
In the present case, all the contested findings of fact relate to brain damage sustained by the applicant's son in the womb,
and relate to the timing and cause of any such damage and your likely fetal condition before and after the actual injury. As such, they were facts that could not be established by direct evidence from actual observation. Rather, they must necessarily be supported by inference or analysis from diagnostic signs recorded before, during, and after the author's birth. Such inferences and analyzes (e.g. very different from a vehicle's position on the road inferred from the markings it leaves) cannot be drawn or made by a layperson unless he accepts a sworn medical opinion . As such. to draw conclusions from the diagnostic signs. The task of this court, therefore, on the issue raised by this brief, is to determine whether the expert medical evidence submitted on behalf of the plaintiff is appropriate to support the contested conclusions. In making this decision, the court must assume that in all cases where conflicting scientific or medical opinions were presented, the jury accepted the version that favored the plaintiff's case. This court, as a court of appeal, cannot and must not come to a conclusion or express an opinion as to which of two conflicting opinions prevails.
Regarding the alternative representation, I came to the following conclusions. In a civil trial, when evidence of a particular fact brought forward by one of the parties is presented before the jury in consideration of other undeniable evidence, even if sworn, it cannot be believed, it is law. the judge's duty to withdraw that particular question of fact from the jury or indicate how the jury should answer it. Given this thesis, I see no logic in the assertion that a trial judge could rightly leave a decision of fact to a jury and then, if the jury decides a particular way, its verdict could be overturned by an appellate court satisfied that it was correct that leave topic.
As far as previous Supreme Court decisions in McGreene v. Hibernian Taxi Co. [1931] I.R. 319 can be understood to mean that in Ireland the appellate jurisdiction of the Supreme Court of the High Court includes the jurisdiction to set aside findings of fact made by a jury on the ground that they are unlawful. Evidence, while it could not be taken as a conclusion which a reasonable jury could not reach, I must refuse to follow it. The only test, I believe, is whether the learned trial judge was correct, according to the principles I have outlined, in leaving the disputed questions of fact to the jury.
medical malpractice
Courts have consistently recognized certain features of general professional liability law, relating in particular to allegations of negligence against professionals in the performance of their professional duties. These special features that apply to medical malpractice claims have been fully addressed
established by that court in O'Donovan v. Cork County Council [1967] I.R. 173, which overturns the Supreme Court's earlier decision in Daniels v. Heskin [1954] I.R. 73. The reasoning of O'Donovan v. Cork County Council was ruled by this court in Reeves v. Carthy & O'Kelly [1984] I.R. 348. It was reauthorized and counseled by counsel in Roche v. Peilow [1985] I.R. 232. At the hearing of this appeal we have not been presented with any argument which would in any way call into question the rectification of the assertions of principle thus made, although there has been controversy as to their application to the facts of the present case. The principles thus established in relation to the issues raised in this case can be summarized as follows.
1. The true evidence of a finding of negligence in the diagnosis or treatment by a physician is whether he has been found guilty of an offense which no physician of like specialty or general condition and experience would have been guilty of, had he exercised the exercise of normal care would have acted.
2. If the allegation of medical malpractice against a doctor is based on proof that he deviated from general and recognized practice, this does not justify medical malpractice unless it is also proven that he has completed training that no specialist doctor has comparable ability if he had received the normal care required of a person of his qualification.
3. If the doctor accused of negligence defends his behavior by saying that he followed a common practice and that this was recognized by his colleagues of the same specialty and competence, he cannot escape his responsibility if the author of the defense proves this practice has inherent flaws that should be apparent to anyone delving deeply into the matter.
4. An honest difference of opinion between physicians as to which of the two ways of treating a patient is the better is no reason for the jury to question whether it was negligent to choose one way over the other.
5. It is not for a jury (or judge) to decide which of the two alternative treatments they (or they) think is preferable, their role is merely to decide whether the course of treatment has been followed according to the evidence , the diligent conduct of a physician of similar expertise and skill to that alleged by the defendant.
6. If there is a question of fact the determination of which is necessary to determine whether a particular medical practice is generally accepted and accepted for purposes of these principles, that question shall be subject to a jury trial. is at the discretion of the jury.
In order for these general principles to be readily applicable to the facts of this case, which I will discuss below, it is necessary to draw additional conclusions not expressly mentioned in the above cases. These are:
(a) "Common and accepted practice" need not be universal, but must be approved and adhered to by a significant number of reputable professionals holding relevant general or technical qualifications.
(b) Although some of these policy statements relate only to treatment, they should apply equally to questions of diagnosis.
(c) If, in a lawsuit against a hospital, allegations of negligence are brought against medical administrators because the practices and procedures they put in place to administer treatment or diagnosis by medical or nursing staff were defective, their conduct must be demonstrated in accordance with the principles of law that would apply if they had personally administered such treatment or diagnosis in accordance with such practice or procedure.
In order to fully understand these principles and their application to specific facts, I find it helpful to set out some general parameters that seem to underpin their establishment. The development of medical science and the paramount importance of this development to humankind make it particularly undesirable and incompatible with the common good for physicians to be compelled to perform their professional duties under the frequent threat of untenable legal claims. The patients' utter dependence on the competence and care of their medical assistants, and what they consider to be a serious omission of such care, makes it undesirable and unjustifiable to accept as a legal matter a negligent or permissive standard of care for the purpose of judging what a medical error is and what is not. When elaborating the legal principles outlined and applying them to the facts of the individual case, the courts must always try to give equal consideration to both considerations.
Number 1
This question stems from the jury's conclusion to question #1 in the article on the timing of brain damage. The author's evidence on this question consisted largely, though not exclusively, of Dr. Evans, a consulting pediatrician with significant involvement in neonatal care, and Dr. Rosenbloom, a pediatric neurologist. . To a lesser extent on this particular subject, the testimony of Dr. Barson, a pediatric pathologist, also named on behalf of the author. Physician Bender, an obstetrician who was also subpoenaed on Plaintiff's behalf and who dealt with labor management prior to Plaintiff's delivery, did not address this issue.
The opinion of dr. Evans can be briefly summarized as follows. Hospital admissions were a typical record for a baby who had brain swelling caused by lack of oxygen before birth. The fact that the baby was hopelessly ill for two or three days and then got better was typical of babies who were deprived of oxygen for a period of hours, usually during birth. The brain injury was too severe to be consistent with short-term oxygen deprivation, and the brain swelling was too evident in postpartum symptoms to be consistent with long-term oxygen deprivation. Upon cross-examination of a theory put forward by witnesses for the defendants, that the applicant's brain damage had been sustained twelve to twenty-four hours before birth, well before his mother was admitted to hospital, and was caused by a
The author's large acute blood transfusion to his twin brother, which killed the twin and damaged the author's brain, Dr. Evans said that in his opinion this could not have happened without the damage being evident at birth to the other organs such as the kidneys and intestines, all of which were normal on the charts. It was part of Dr. Evans suggested that the fetus was deprived of oxygen as a result of placental dysfunction caused by contractions of the uterus and that brain damage was therefore more likely to have occurred during labor. He also expressed the opinion that such an injury during childbirth would have been preceded by fetal distress.
Doctor Rosenbloom held that the plaintiff suffered severe brain damage during his mother's labour. It was based on meconium grade 1 findings at 12:10 p.m. and meconium grade 2 at 4:20 p.m. as an indication of increased fetal stress leading to brain damage occurring "a few hours before the baby is born". His view was based primarily on the plaintiff's condition at birth and for a few days thereafter, together with what he believed to be signs of brain swelling shortly after birth. He also dismissed and gave reasons for his denial of the theory of a possible large twin-to-twin blood transfusion that killed the second twin and damaged the plaintiff's brain between twelve and 24 hours before birth.
These witnesses supported their views on what they claimed was the not uncommon nature of the injury, including brain damage, in one twin during childbirth when the second twin died in utero, and what they claimed was the extreme rarity of brain damage and death by an acute and large blood transfusion between twins. It appears that none of the experts called to testify had any direct personal experience or observation of this latter phenomenon, despite extensive practice as an obstetrician or pediatrician.
Against this evidence the defendants summoned six consultant obstetricians, namely Professor O'Herlihy; Doctor Boylan; Doctor Gordon; Mrs Barnes; Professor O'Driscoll; and the second defendant. They also called a consultant neonatologist, Dr. Matthew; a consulting neuronatologist, Dr. O'Gorman; a pediatric neurologist, Professor O'Donoghue; and a consulting pathologist, Dr. Royston, who was the hospital pediatric pathologist at the time of the plaintiff's birth and attended the autopsy of the dead twin. In fact, to sum it up very briefly, their evidence came from views that largely coincided in the following effect:
1. That the second twin died at least twelve, more likely twenty-four hours before birth, long before the author's mother was hospitalized. To establish this, he relied primarily, though not exclusively, on the second twin's macerated state at birth.
2. The most likely cause of death of the second twin was a massive twin blood transfusion from the applicant resulting in hypoxia and brain damage to the applicant and that it would have occurred at the same time or within a very short time
the death of the second twin. In doing so, the defendant's witnesses relied on a variety of diagnostic signs that occurred during the plaintiff's labor and postpartum. The main ones were: (a) Normal fetal cardiac findings on intermittent auscultation during labor until about 4:20 p.m. m., and then on continuous electronic monitoring of the fetal heart. (b) Blood sample with normal pH collected at 16:20. M. (c) Cord blood sample taken at birth with normal pH. (d) Abnormal hemoglobin below 50% of normal, associated with normal blood pressure when measured at birth. (e) Excessive number (25%) of normoblasts in blood tests at birth. (f) The absence of other causes of death and the observation of an unusually large amount of blood in the second twin at autopsy. (g) No history of maternal uterine bleeding and disqualification due to evidence of circulating maternal bleeding.
The defendants' experts not only relied on these and other diagnostic indicators to suggest that their theory was correct, but also argued vigorously that many of them were totally inconsistent with the plaintiff's evidence that the brain injury occurred during the birth of the The complainant's mother had appeared. There is no doubt that this evidence represents the opinion of a large number of highly qualified experts and, if accepted by the jury in whole or in part, would inevitably result in the decision of the first question put before them against the plaintiff. I am fairly convinced that, taking into account the principles already set forth in this judgment, it is improper to allow an appellate court to rule that it dismissed the evidence presented on behalf of the plaintiff. It is concluded that there was evidence to support the jury's decision in favor of the plaintiff in question. 1.
Number 2 and 3
These two questions follow from the jury's conclusions on question n. 6 and questions 4(e) and 5(e) in the exhibition document. Although these findings are not directly related, they are sufficiently related to be appropriate to address them in the same part of this study. First, the question of whether there was evidence to support any or all of these conclusions must be addressed with the knowledge that the jury, in its answer to Question No. 1 on the document containing the opinions of the experts summoned on Plaintiff's behalf to the disadvantage of the reports of the experts subpoenaed on behalf of the defendants, which was clearly one of the greatest confrontations of the expert evidence in this case. As I have already indicated, the evidence from Dr. Evans and Dr. Rosenbloom found that the oxygen deprivation that caused brain damage when it occurred during labor was related to the strength of the uterine contractures and was therefore more likely to present as increased labor and take effect towards the end of the labor period than at the onset of labor.
Based on the evidence, the hospital's practice should assume, for protocol and apparently diagnostic purposes, that labor did not start until
Mother entered the delivery room. The alleged reason for adopting this practice was a common experience of mothers believing and claiming they were in labor when admitted to the hospital, which ended up proving that wasn't the case. However, the jury in this case had explicit evidence from Mrs. Dunne that she had been in labor since 9am. a dilatation of the cervix of between two and three centimeters detected during this examination. If they had accepted this evidence, and I must assume that they did so to some extent in favor of the plaintiff, then Mrs. Dunne would have lasted a little over eight hours before the plaintiff was born.
According to the log, in the first four to five hours of this work, i.e. until 1 p.m. at 2:00 p.m., cervical dilatation increased by only one centimeter, from two to three centimeters, while she continued to contract an additional three centimeters for the remaining three and a half hours until full dilation. Based on this evidence, I believe I am open to the jury accepting the opinion of the witnesses called on behalf of the plaintiff that the intense labor time was after 1:30 or 2:00 p.m. m., and that it was after that time. that the brain injury sustained by the plaintiffs occurred and that they were entitled to accept this evidence notwithstanding evidence to the contrary presented on behalf of the defendants. Authors' witnesses indicate the existence of grade 1 meconium at 12:10 p.m. and its progression to grade 2 meconium at 4:20 p.m. as confirmation of the increase in fetal distress preceding the actual brain injury, which they claim occurred after 1:30 p.m. or 2:00 p.m. From the particular in Dr. Rosenbloom argues that such distress cannot be detected by intermittent auscultation at 15-minute intervals, whereas it would have been detected by continuous electronic scalp monitoring. In addition, the evidence from Dr. Evans and Dr. Rosenbloom's concern about the general nature of brain injuries caused by oxygen deprivation during labor is that the injury is not sudden, but is usually preceded by a period of fetal distress that eventually escalates to a harmful level. All of this evidence was again heavily contested by the defendants' evidence, but in my opinion it remained fair and proper to leave it to the jury, and its acceptance cannot, in my opinion, be overturned by a court of appeals.
Number 4
Monitoring fetal hearts in twin pregnancies
In addition to the question of the time and cause of the plaintiff's brain damage, the second central issue in the process was the question of whether, in the case of a known twin pregnancy without recognizable complications, an attempt during labor to identify the presence of two fetal hearts or just one was correct. Evidence presented by both sides regarding this issue can
briefly as follows. The doctor. Bender showed that in the case of a twin pregnancy, it was not difficult to identify two fetal hearts. He believed this was now commonly done with a sonic device that had been in use for ten years. He pointed out that this could also be done by auscultation with a trumpet (this was the auscultation method used by Mrs. Dunne until 4:20 p.m.). He expressed the opinion that such identification is very important in a twin pregnancy and that there are risks in not doing so. Doctor Evans explained that in the case of a known twin pregnancy, the hospital's practice of not trying to identify two fetal hearts was something he had never heard of being adopted anywhere else. He said he was clearly wrong in his opinion, explaining that finding two fetal hearts is easy, which he likened to turning on the headlights of a car when it got dark. He expressed the opinion that trying to identify just one was absurd.
The following was said on behalf of the defendants. Doctor Casey demonstrated that it was hospital policy to listen to a fetus's heart in a twin pregnancy. Professor O'Herlihy confirmed that this was and remained the practice at the hospital at the time of the trial. He explained the technical difficulties in identifying two fetal hearts and the great difficulty in distinguishing them from one another as the reason for this. He also indicated that the mother felt a little uncomfortable. He said he was aware of similar practice at other hospitals where he worked, citing an example as St James's University Hospital in Leeds, where he worked as a registrar in 1977-1978. Blennerhasset, who was a resident at the hospital at the material time, confirmed the practice and explained that he was now practicing as a general practitioner, in the event of a known twin pregnancy he would attempt to identify a single fetal heart, although his practice did not appear to be monitoring the birth to include Dr. Gordon stated that in his opinion, attempting to identify two fetal hearts is notoriously unreliable, could be misleading, and could influence an obstetrician to make wrong decisions. He gave the example of a hospital with which he is associated, where, after identifying two fetal hearts and obtaining traces of their movements, which seemed to prove very satisfactorily that both were functioning normally, at the end of the birth it was found that this was the Case One of the twins in question had been dead for some time. Evidence that this happened elsewhere was provided by other witnesses on behalf of the defendants. Dame Barnes stated that she saw nothing wrong with identifying a single fetal heart and while it would be desirable to attempt to identify two, it would not necessarily reveal the existence of a dead twin. The doctor. Matthews indicated that it was practical to try to identify two fetal hearts at both Rotunda Hospital, to which it is attached, and Coombe Hospital. He expressed the opinion that he found such a practice no better or more advantageous than the practice practiced at the defendant hospital of merely trying to identify one. He based this conclusion, at least in part, on research reports from Rotunda Hospital and the responding hospital covering a significant period of time and indicating similar experiences and outcomes in twin pregnancies. The second accused, Dr. Jackson confirmed the practice
hospital and stated that he would take on any case where he had no reason to worry about the second twin, who he felt was the culprit in this case. The doctor. O'Driscoll, a former professor at the hospital and a former professor of obstetrics and gynecology at University College Dublin, who has been associated with the hospital for forty years, has shown that the practice of identifying a fetal heart is practiced only in the case of Pregnancy partnerships had been the hospital's practice for fifteen or twenty years at the time of the trial. He identified this practice not only as an effort to identify a single fetal heart, but also as a specific attempt to identify the first twin's fetal heart. I explained the reason for this practice was the extreme difficulty in getting a reliable result from any attempt to monitor the second twin and the impossibility of doing many of the possible additional tests given that twin was not present at the time of delivery time available. He. He expressed the view that attempting to monitor two fetal hearts could be so misleading that it is a dangerous practice. When asked about the out-of-hospital practice, he also explained that the plaintiff, who was the first twin, could not have been better monitored anywhere in the world.
The application of the in O'Donovan v. Cork County Council [1967] I.R. 173, as I have already stated in that judgment, in the light of that evidence I have come to the following conclusions. It was clearly part of plaintiff's complaint against each of the defendants that in attempting to identify a fetal heart only in the case of a known twin pregnancy, they each departed from a practice generally accepted and approved by both maternity doctors. and consultant obstetricians. In my opinion, evidence in favor of the plaintiff, if accepted by a jury, could support such a case. It was also clear, in my opinion, that part of the defendants' case was that in attempting to identify a single fetal heart, they followed a practice which, within the interpretation of that sentence I already have, "generally and recognized" was founded. in this process. In my opinion, the evidence they presented could support such a case.
In light of these conclusions, I am satisfied that if the jury found that the defendants had deviated from common and accepted practice, taking into account the judgments made by Dr. Evans and to a lesser extent the opinion of Dr. Bender, if the jury accepted these views, it would be free to assert that the course taken by the defendants was one that no hospital and/or obstetrician of average ability would have followed if they acted with due diligence had. On the other hand, if the jury had found that the defendants had followed "common and accepted practice," they might still have found they were negligent in accusing Dr. Evans and Dr. Bender concluded that they said the practice had inherent flaws that should have been apparent to any maternity nurse, medical administrator, or consultant obstetrician who had given the matter due consideration. Therefore, I am convinced that the answer to the question posed by the problem is no. 4 on this objection must be that the jury, when properly instructed
I found that neither the hospital nor the doctor attempted to identify a second fetal heart.
Number 5
I will not deal with the problem for now. 5(e)(iii). Whether the learned trial judge erred in law by failing to properly instruct the jury on the principles of medical malpractice resulting from his failure to identify two fetal hearts, and if so, whether that error distorted the verdict clearly includes the reasoning I have given in dealing with Matter No. 4 (prior matter) of this judgment. In the course of his decision on the defendants' requests for instructions, the trained trial judge stated the following:
"In the present case, there is no evidence that there is a general and best practice not to monitor the second fetal heart in twin pregnancies. In fact, the evidence would tend to substantiate the practice of monitoring a second fetal heart, so I cannot retract that part of the case on the grounds that the hospital and physician have adopted common and licensed practice.
As part of his indictment before the jury, the learned trial judge addressed the question of medical malpractice as follows:
“The concept of negligence is very simple. It implies the concept of due diligence and it implies the concept of breach of due diligence and nobody disputes it. The hospital had a duty of care to the applicant and Dr. Jackson does not deny that he had to care for the plaintiff, namely the plaintiff and the plaintiff's mother. It is denied that there was a breach of this duty of care. Let me replace a highly qualified and experienced obstetrician, Dr. Jackson, as the author's doctor, and it is not wrong to call him the author's doctor because he was her patient as much as Mrs. Dunne. Patient of Dr Jackson. The doctor. Jackson had a duty in treating Mrs. Dunne and taking care of her unborn children, the twins. As a specialist obstetrician, it was his duty to employ the skills, knowledge and technique which a specialist obstetrician must have, and to make considered judgment as to what course and what treatment to give to Mrs. Dunne and her twins. The standard examination to be used is that of a qualified midwife who has a normal level of professional proficiency. It is for you, ladies and gentlemen, to decide, in the light of the evidence, whether Dr. Jackson with the plaintiff did not come up to the standard of a normally qualified obstetrician. Now don't use your own judgment about what you think you should have done because you're not an obstetrician. Consider whether, in the light of the evidence, your management, care and treatment of Ms. Dunne and William were below the standard of the
general obstetrician and the examination is the same in relation to the hospital”.
Concluding the judge's indictment, Mr. Liston made a very specific request on behalf of the doctor based on the fact that the defendants' case was that it was a hospital-adopted and doctor-accepted practice regarding the monitoring of a fetal heart in a twin pregnancy. He then asked the jury for further guidance on the principles in O'Donovan v. Cork County Council [1967] I.R. 173, to which I have already referred. This application was denied by the plaintiff's attorney and dismissed by the learned coroner.
The conclusions I have reached regarding the evidence of “practices” in fetal heart surveillance in twin pregnancies, expressed in terms of the number n medical malpractice means was true but insufficient. That deficiency consisted in the fact that he had not specifically drawn the members of the selection board's attention to two questions. They were: 1. If they concluded that there was a general and accepted practice of monitoring two fetal hearts from which the defendants had deviated, they should not find the defendants negligent unless they concluded also, that no medical director of the hospital, or any consultant obstetrician, would have gone so far if he had exercised the usual care. 2. If they concluded that fetal heart monitoring was a "common and accepted practice," they could not find the defendants negligent unless they also concluded that it was a practice with inherent flaws acts that should have become obvious at a favorable moment. Consideration of a hospital medical administrator or a consultant obstetrician. This failure is not simply a failure to use a particular phrase or phrase, but a specific failure to alert the jury to the legal principles governing the determination of cases of medical malpractice and the standards by which they are judged they should judge. .
I then turn to the further question of whether this omission by the prosecution constituted a misprocedure that could have led to a miscarriage of justice. I am not unaware or insensitive to the tremendous toll, both emotional and practical, that this proceeding is taking on the parties, both the complainant child's parents and the physicians whose conduct has been challenged. However, I conclude that the omissions I found in this indictment were such that I believe that had the jury received proper instructions they could have reached a different conclusion on this vitally important issue. Of course, in making this decision, I am expressing no opinion as to what its discovery should have been if it had been so ordered. Following this decision, the only way to do justice to the parties in this case would be a fresh trial of liability against both defendants. Therefore, it would allow any defendant to appeal the liability issue and order a new trial on that issue.
Since such a retrial will be held before a judge without a jury, in accordance with the provisions of the Courts Act 1988, it is not necessary to give an opinion
other objections to the prior trial, including those based on the form of the questions asked by the jury or the nature of the judge's indictment to the jury.
However, I would like to express my opinion on an issue that arose during the hearing of this appeal. The defendants disputed the adverse effect of a series of questions put to the doctor under cross-examination regarding his decision to administer a drop of oxytocin to the plaintiff's mother. The reason for this objection was that indisputable evidence indicated that the drip was removed after five minutes and that there was no conceivable possibility that such a dosage for such a short time could have had any effect on the plaintiff's injuries. The plaintiff's counsel attempted to justify this investigation before that court, considering that the evidence of any negligent or manifestly negligent act on the part of the doctor, even if unrelated to the damage alleged in the complaint, for the Negligence, which had to be decided on a case-by-case basis, was relevant for determining the causality issues. In the absence of a question about a system of work or conduct, which did not arise in this case and which was not raised as a relevant issue in this appeal, I am satisfied that such a claim is completely false and, of course, entirely without any official support . In the absence of evidence linking the five-minute dose of oxytocin to the author's injuries, questions about it are neither relevant nor permissible and clearly harmful, although the fact that it was ordered as part of the author's treatment narrative, Ms .Dunnen, may be permissible.
damage and losses
The scale and consequences of the author's injuries are indeed great and mean a total destruction of every imaginable comfort in life. He is a spastic quadriplegic with a severe intellectual disability, incapable of any understanding. Your eyesight is impaired. He shows some minimal signs of additional dissatisfaction on certain occasions and what can only be described as relative satisfaction on others. He is incontinent and unable to perform any useful or intended functions on his own, so he must be fed, clothed, and washed. He is totally dependent on help for all his needs. He faces the likelihood of future surgeries to correct muscle contractures that have caused a joint dislocation in the past. Their life expectancy is about normal. All of these consequences of plaintiff's brain damage are quite irreversible. The estimated general damages in respect of these injuries at £467,000 must be considered in the light of the principles established by this court in the following cases: Foley v. Thermocement Products Ltd. (1954) 90 I.L.T.R. 92; Doherty v. Bowaters Irish Wallboard Mills Ltd. [1968] I.R. 277; Reddi vs. Bates [1983] I.R. 141; cook v. Walsh [1984] I.R. 710 and Sinnott v. Quinnsworth [1984] I.L.R.M. 523
In the light of these decisions, the following factors are of particular relevance in assessing the general damage on the basis of the facts of the case: (1) The
Extent to which the plaintiff appreciates or is aware of his condition and the comforts of life he has missed. (2) The extent to which the award of indemnities under separate titles made full and comprehensive provision for your physical care and needs. (3) The totality of your loss of comfort and happiness. (4) The irreversibility of your condition and the fact that it will persist throughout a normal life from birth. (5) The amount of compensation for gross damage under all headings, of which the amount of general damage is an integral part.
In summary, the defendants' opinion on this matter is that, bearing in mind these principles and factors, and with particular reference to the evidence they have presented, there is an almost complete lack of awareness and an inability to derive any pleasure or comfort from anything that attracts no personal grooming . and the care and presence of his family, the sum of just under £500,000 alone or as part of a total prize pool of over £1,000,000 is greatly exaggerated. Apparently no allegations were made at trial, let alone arguments, that in principle a person who is unaware of his condition as a result of agonizingly inflicted injuries should have a property right to general damages to nil or only to nominal damages. Therefore, I do not give an opinion on such a proposal. Instead, the appeal in that court was for what was claimed, under all circumstances, to be moderate damages. It has been argued on the author's part that considering the extent of the injuries and the fact that they will last literally for the life of the author, the case should be classified as an isolated one and that individual injuries warrant a single general dismissal award of compensation. I am satisfied that the sum of £467,000 which is assessed as general damages, taking into account the other damages awarded which amount to more than £579,000 and, assuming the plaintiff is unaware of his condition, is such that it appears unreasonable and that the defendants have a right to an effective appeal in this matter. Given my view that there should be a new process on the liability issue, I am convinced that the issue of damages should also be repeated.
The causes of the action for damages relating to the three elements beyond general damages that I have described in this judgment were all based on the detailed evidence presented in the judgment rather than on a general issue of principle. Consequently, I believe that it would not be necessary and unlikely to be helpful for me to express an opinion on this, given the very real possibility that the details of the evidence on these issues could be different in a new trial.
With regard to the question of the costs of providing a suitable house for the residence of the plaintiff and his family, however, I think I have to point out that, as was already the case in the main hearing, it must be taken into account whether the proceeds from the sale of the existing family house, the proposal seems to clarify the Requiring pre-ownership agreements for each new home.

There was no dispute in court about the condition of the plaintiff and the consequences of his brain injury. Therefore, it is very likely that the evidence presented to the retrial judge for damages in this particular matter will be the same as that contained in the record before that court. I would find it desirable that you state a range of general damages in the circumstances that appear reasonable under the principles in force. I say "amendment of damages" because, of course, in assessing the total damages, the trial judge would have due regard to both the extent to which his other judgments fully address the plaintiff's physical needs and well-being and possible losses, and the raw judgment, resulting from all your reviews. That range of general damage would be between £50,000 and £100,000, I believe, taking into account the factors I have given.
This would allow any defendant to appeal and order a new trial on any issues.

vulture j.
I agree.

hedermann j.
I agree.

Collins v. Midwest Board of Health

[1999] IESC 73; [2000] 2 IR 154 NO SUPREME COURT



The approximately 40-year-old husband of the plaintiff (“the deceased”) suddenly fell ill at around 3:30 p.m. on Wednesday afternoon, February 20, 1991, at work. He was a trained bricklayer and worked with his brother on a construction site. I could not
continued and it was some time before he was well enough to go home. As he passed the office of the second defendant ("Dr. O'Connor"), who lived nearby, on his way home, he saw his car parked outside. The family doctor was Dr. O'Brien. However, the plaintiff was with Dr. O'Connor on one occasion and the deceased apparently decided to go with him because he was closer. When he got home, he told his wife that Dr. O'Connor was probably in her office and asked her to call him to make sure she did. It was only 5 o'clock. He asked the doctor to wait a few minutes. She said to him, "Jim has a bad headache. He doesn't usually go to the doctor. It must be really bad. The doctor said he would wait. The deceased changed his clothes and went alone to the doctor's office.

1. Have you been consulted by Dr. O'Connor and noted that he was complaining of symptoms of upper respiratory tract infection ("URTI") or other symptoms
Words a cold The doctor's advice was that it took two to three days for the effects to kick in and no prescription medication was required.

2. On Saturday, February 23, plaintiff came forward concerned that her husband, who had never been to a doctor and since his visit to Dr. O'Connor, not feeling better, called the doctor. She asked if he was absolutely sure her husband had the flu, which her husband had told her was the doctor's diagnosis. She told him that her husband had been in bed for three days and that he had never been in bed and that she was very worried. DR. O'Connor was that people who are not used to being sick sometimes think they are worse off than when they are sick. She asked if he was sure he couldn't prescribe anything for her.
and his answer was “No, not for the flu. it has to take its course. That can take four to five days.”

3. On February 25, the deceased was no better. The plaintiff called the defendant at 8:00 a.m. and said, "Jim is in very bad shape," and he noticed it almost immediately. The deceased was in bed. After the exam, Dr. O'Connor felt that she was probably suffering from a headache caused by a stuffy nose. During that visit, he found signs under the patient's eyes that suggested he might have high cholesterol. He advised a test and suggested giving a blood sample to his practice. The deceased visited Dr. O'Conor on February 28, where a blood sample was provided for cholesterol testing. When asked about the result on or about March 5, the complainant was told it was normal. She
he referred to dr. O'Connor that the deceased was no better and told him that if the deceased wanted he could visit him again.

4. The deceased was no better. On March 17, the plaintiff again called Dr. O'Connor. He wasn't working that day, but he had a backup. He decided there was no point in the deceased going to the surrogate. The next day there seems to have been a change of heart. The deceased sought Dr. O'Brien. He immediately figured that the deceased needed a CT scan. He contacted the hospital and on March 20th the deceased received an appointment notice for April 2nd in the mail. When it arrived the author thought it was too far. He contacted dr. O'Brien, who agreed. He apparently struck an agreement with the hospital to take in the deceased and gave his wife a letter advising that the hospital had agreed to take him in. At least at 5 p.m. about it

On March 20, the deceased was taken to an ambulance.

5. There he saw the chief officer of the house, Dr. Only. After a thorough examination, Dr. Nur felt he needed further testing and said he would make an appointment for the deceased to see a specialist and send him home in the meantime. The author immediately contacted Dr. O'Brien. The next day, dr. O'Brien asked Dr. Only that the deceased would be admitted. Since this was not possible, it was decided that Dr. O'Brien would do his best the next day to have the deceased admitted to a specialist. However, events all struck when the deceased appeared to be having another severe seizure at 2am. M. on the 22nd. He was immediately taken to the hospital as an emergency. His condition was serious. A lumbar puncture was performed at 4:00 am and a CT scan at 10:00 am. A subarachnoid hemorrhage was diagnosed.

6. After this examination and confirmation of the subarachnoid hemorrhage, the deceased was transferred to Cork. There he was placed in the care of Mr. Marks, a consultant neurosurgeon. Sometime in the afternoon an additional CT scan was taken which showed a similar pattern to the first. At that point, the deceased was unconscious and had no real hope of recovery. He finally died on March 27th.

7. As a result of this sequence of events, the applicant brought an action of negligence against the two defendants on behalf of herself and her three children.

8. The process is divided into three parts. The first part is a lawsuit against Dr. O'Connor. This is in turn divided into two parts. First, he is said to have acted negligently at the February 20 appointment. Second, it is claimed that although he was not negligent at the time, he should later have referred the deceased to a specialist. He

The second complaint is against the hospital management because of Dr. Only when the deceased was admitted to the hospital on March 20. Finally, there is a new lawsuit against the hospital for negligence in treating the deceased when he was admitted on the 22nd.

9. It is common for the deceased to have suffered a subarachnoid hemorrhage on February 20, 1991 and another, more severe, in the early hours of March 22 of the same year. The case against Dr. O'Connor is that he should have diagnosed that the deceased was suffering from a serious illness that required a referral to a specialist for further diagnosis and treatment if necessary.

10. Before examining the question of any liability of Dr. O'Connor, it is necessary to consider what must have happened at the surgical consultation on February 20, 1991.

11. This must be viewed against the evidence of what actually took place that afternoon. This statement was made by the brother of the deceased. It went in the following direction.

12. At around 3:30 p.m. he and the deceased were working together laying blocks. his brother suddenly put both hands on his head. He asked what was going on and his brother just said something and looked around. He repeated what happened to him and his brother said I don't know, my head. It was almost pure white. At that time they worked above ground. His brother stopped, sat down and stayed there for about three quarters of an hour. He asked for Panadol. He was doing absolutely nothing, he was in a state of total stress, very pale and white. His brother took him down a ladder where they were working with the help of another worker. When he reached the ground, he went straight to his passenger seat

Brother's car He didn't leave the premises until around twenty to five. His brother continued to work from time to time, but came to visit from time to time. He looked the same at the time, but he was in excruciating pain that startled his brother, whom he had told about the pain. As she came down the steps, she staggered on her way to her car. His condition did not change while he was with his brother.

13. The coroner assumed that the doctor had diagnosed a viral flu; expressed in his notes as URTI (Upper Respiratory Tract Infection). It further noted that the doctor was unaware of the sudden onset of what was undoubtedly a headache and that, given what he was told and the apparent condition of the deceased, he had asked the right questions.

14. These questions need to be revisited, but it is worth considering at this point how this diagnosis might have come about. He

The deceased had just suffered a severe traumatic experience and when he felt well enough to go home his first reaction was to see a doctor. You would expect the doctor to tell him about the sudden, terrible headache and the way it started and say, "What's up, Doc?" This didn't happen. The closest he got to the true story was when he told the doctor that he felt sick at work.

15. While surprising, this is likely due to several factors. The deceased was not used to seeing a doctor. At that time he visited Dr. O'Connor, he had recovered enough to go on his own. The way dr. O'Connor conducted his surgical visits in his own words:

"... when I say (sic.) see a new patient, when I've got the medication history, allergies and that sorted out, I sit back in my chair and say “ok, what's up.

What can I do for you?” and give the patient a chance to tell me what the problem is. His headache was one of several complaints the first time. The second time they were the main complaints.

16. Finally, dr. O'Connor assumed that the deceased had searched for him as a precaution. In your own words:

"I think the reason he came to me wasn't because he was just having URTIs, it was because he was feeling sick and unwell and that and the fact that he was a mason and had to put a lot of energy into bringing him to me see. Often patients seek a cure for the flu early on to prevent it from getting worse and stopping working.”

17. After finding out that Dr. O'Connor was not informed of the sudden onset of the headache and had no reason given his surgery date.

Beyond his URTI diagnosis, the experienced judge discovered that Dr. O'Connor had asked the right questions. This determination was made against the background of medical reports that a general practitioner in a surgical consultation was not only obliged to listen to the patient, but also to ask the appropriate questions. In fact, this is nothing more than a reiteration of the general principle that it is a doctor's duty to ensure that he knows what is required of him and that it is appropriate to act in the interest of the patient or client accordingly, given such directions .

18. In the present case, the question arises whether the learned coroner interpreted the family doctor's duty too restrictively, limiting it to what his patient said to him during the surgical interview and failing to take account of the circumstances in question . came to your appointment. These were the obvious urgencies expressed by
the author's call asking if he was still treating patients, as well as what the author actually said. After asking the doctor to wait a few minutes, she said to him, "Jim has a really bad headache. He doesn't usually go to the doctor. It must be really bad.

19. The touchstone of the obligation of a family doctor is whether a reasonably prudent family doctor, exercising ordinary care, would have acted as he would have done in the circumstances. The reality of the test is to find out whether or not the GP acted reasonably under the circumstances known to him. In the present case, the learned trial judge's conclusions amounted to a decision that by confining his questions to the statements made by the deceased and his opinion of his condition, he exercised the care required of him. The plaintiff believes that he breached his duty to the deceased by

the circumstances under which the visit was arranged and what the author said in arranging the visit.

20. It is time to consider the evidence in this regard and the opinions of the courts have been expressed in similar cases. Professor Ronald Salkind testified on behalf of the applicant what is expected of a general practitioner. He had been a general practitioner for some forty years and, at the time of the hearing, was Professor Emeritus of General Medicine at the University of London. Because GPs see a wide range of diseases, one of their primary roles is to separate the self-limiting disorders they can treat from those that are life-threatening and require referral. It's important that they take a good story and record it. Eighty percent of the diagnosis is gained from the history. While the best way to find out what is wrong is to listen to the patient, it is still the doctor's responsibility to ask the patient questions.

patients to clarify the details of the symptoms. Omission is negligence.

21. It was not up to the patient to voluntarily do anything he could think of. The physician has a duty to evoke appropriate responses to the indications given by the patient.


73. The problem in this case is really quite simple. The doctor. O'Connor accepted that he knew the importance of the sudden onset of a severe headache. Had questions been asked, it would be inconceivable that they would not have told you about the sudden onset. So the real question is, should the headache questions have been asked on the 20th? Relying on the notes would normally suffice, although if something has been overlooked it follows that it is not in the notes. Not only is there no mention of asking questions about headaches in the 20th notes, they are not known to have been asked. Consequently, the comments are really irrelevant in the present case.
74. It was not to be expected that dr. O'Connor made the correct diagnosis. But he should be able to know when his patient should be referred to a specialist. Certainly there were negative results on February 20th and 25th that indicate this
there was nothing seriously wrong. However, history was considered 80% of the diagnosis. Therefore, if an appropriate medical history is not taken in the sense of asking the right questions, the ability to make an accurate diagnosis or referral decision is severely limited.
75. On February 20, Dr. O'Connor may not have realized the importance of the fact that the deceased was someone who did not see a doctor. However, in view of the complainant's telephone call, there seems to be no justification for not pursuing the headache issue. If so, he must have noticed a sudden headache that he himself admitted would have known what the problem was.

76. In the present case, the question arises whether Dr. O'Connor had a right to trust what the deceased told him. Of course he did, but that didn't exempt him from asking questions to establish that it was his patient
he had left out nothing that he, as a doctor, considered essential to a correct diagnosis. In this case, the information was provided in response to the 'tell me all'. While this should be a good place to start, it shouldn't be the end either. He has to make sure that the patient has not missed anything that could be important for the doctor. Simple questions would probably be enough to convince the doctor that what was said is no longer hiding anything.
77. The visit was not a simple surgical visit. This was preceded by a phone call that suggested an urgency and at the same time gave him two other pieces of information: first, that his condition was probably serious because he had not seen a doctor, and second, that the main symptom was a severe headache. Even without the added element of urgency, these two issues had to be considered. neither was it
the obvious element of urgency. To settle for a URTI diagnosis was negligence in my opinion.

78. These failures continued through the 23rd and 25th. These issues required more attention than was given. Although dr O'Connor specifically asked about headaches on the 25th, he maintained his diagnosis, although the answers he received tended to be in the negative. At the same time, all the warning signs she had ignored on the 20th also disproved her diagnosis, as she had been told on the 23rd.
79. In this type of case, hindsight is an issue. It was customary at the hearing that the deceased had suffered a serious head injury on February 20. Therefore, it is very easy to assume that the doctor is negligent in not diagnosing you. This is not the exam. Questions to ask are: Has the doctor done all he could reasonably do
A reasonably prudent general practitioner would be expected to practice the usual care and if not, what he should have done would have resulted in a correct diagnosis, either by himself or by a specialist to whom he had been referred.

80. For the reasons already mentioned, Dr. O'Connor failed the test in the first question. He did so on February 20th, and also on the 23rd and 25th. If he had not failed so blatantly, the correct diagnosis would probably have been made by him, but would certainly have been referred after examinations by a specialist to whom the deceased would have been referred.
81. There was no direct evidence on the specific question of whether the conflict between clinical findings and information provided by telephone, and the information itself, warranted further questioning. Unfortunately, the conflict was mainly between what Dr. O'Connor knew
or he must have known on the one hand and what he was not told and on the other hand did not know.

82. Mr Gibson appears to support the investigation of an apparent inconsistency. Although both Dr. Only as Dr. Crouch asked simple questions where pain was a feature, it is clear that the premise for this is the need to consider all information, wherever it comes from. In the absence of such a requirement, that part of the remedy fails. However, I do not see how this could be correct and would appeal the lawsuit against Dr. O'Connor.
83. During the filings, plaintiff's counsel referred to a Canadian official in Dale v. Munthali 73 Dominion Law Reports, 3rd row, p. 588. In this case, a general practitioner was found negligent for failing to recognize that his patient's disease, later diagnosed as meningitis, was not influenza. One of the reasons why
The conclusion was that the doctor should have further questioned the patient and his wife about the high fever before his visit.
In Langley v. Campbell The Times on November 5, 1975, a general practitioner was found negligent for failing to consider the possibility that his patient, an Englishman who had recently returned from Uganda, might be suffering from a tropical disease: malaria. He had been diagnosed with the flu, the symptoms of which were fever, headache and alternating sweats and chills. In making his decision, the trial judge accepted evidence from the patient's family that the doctor had been informed that the patient had just returned from Uganda and had already contracted malaria.

84. This type of case depends on its own facts. However, both cases show that the coroner considered what the patient was doing to be essential
told the doctor, but also what your spouse or other family member said or could have said to you.

85. I agree with that opinion. If, as in this case, information is given by someone other than the patient at the time of the consultation or before or after a visit, it must be noted and, if necessary, challenged. This is especially true when, as here, there is a discrepancy between what the patient says and what the family member says. It was negligent not to pay attention to what the applicant said in each of her three phone calls and in her follow-up.
86. The two cases I referred to recognize the importance of what family members tell the doctor. I totally agree. This information is important. What weight to give is up to the doctor, but should not be completely disregarded.
87. In these circumstances, Dr. O'Connor had no right to confine himself to what the deceased told him and what he saw. It was obliged to take into account the circumstances of the applicant's various telephone calls and her statements. If he hadn't been so confined, he would have realized the need to refer the deceased to a specialist. What would have happened then and how the deceased would have recovered must be clarified.
88. The case against the hospital board regarding Dr. Only is different. The plaintiff assumes that Dr. Only should have committed the deceased. At the time of his examination in the hospital's emergency department, Dr. Just knew that Dr. O'Brien had formed the opinion that the deceased should be referred to a specialist. Consequently, he began his examination with this knowledge.

89. The letter was dated March 20, 1991 and was prefaced by Jim Collins with his address. was the following:

"Dear Mrs
Thank you for admitting the above. It's been bad for the past five weeks. You have a severe headache that is not relieved by painkillers.
anorexia and weight loss. History: nothing relevant
S.W: Up until seven weeks ago I smoked thirty cigarettes a day.
alcohol is
On examination it looks bad.
CNS: Examination macroscopically normal. R.S / ENT 1, abdomen /
He has never felt unwell and is generally reluctant to see a doctor. So I think you need hospitalization to rule out something sinister behind your symptoms. Best regards"

90. During the examination he asked the deceased several questions. He examined him and observed his behavior and appearance. When asked about his headache, the deceased stated that he had had it for four days and that he had had a headache a few months earlier. In a sense this answer was correct in that the headache did not return until the 17th with sufficient intensity that by the 20th he had suffered from it for four days, on the 17th, 18th, 19th and 19th 20th Nothing in all of which indicated the urgency that really existed. An opinion was formed that the deceased required further examination. It didn't seem like a matter of extreme urgency.

91. It has been argued that there are other conclusions which indicate urgency but which need not be referred to. Significant is the authority that Dr. Nur, an executive of the household in the accident and
ER Although you can refuse admission, you cannot admit a patient without a second opinion. Again the letter from Dr. O'Brien referred to the possibility that something sinister underlay the deceased's symptoms. But dr Just didn't seek another opinion. , there was no evidence that if he had called a manager, his manager would have expressed a different opinion. One could even say that he agreed with Dr. O'Brien, but differed from Dr. O'Brien on the circumstances under which a further examination of the deceased should be undertaken.

92. Any system which gives absolute authority to an inexperienced physician does not seem advisable to me. The senior house officer position is by its very nature one in which the incumbent learns his craft. From time to time you may come across cases with which you are unfamiliar and on which you would like a manager's opinion. When absolute authority is given
There is a risk of missing out on things that your elders would not do. I do not intend to place more responsibility on hospitals than is necessary. House staff should not be forced to look over their shoulders every time a patient is brought into the emergency room. Absolute authority is not advisable. It is for the hospital authorities themselves to provide a scheme to determine under what circumstances a domestic worker would be required to seek advice from a higher-ranking person. In the present case, a member of the medical team might have had a different opinion.

93. It seems to me that the problem really stems from the system that Dr. Just such absolute authority to deny entry. Everything indicated that he should have referred the deceased to the medical team, paying particular attention to Dr. O'Brien. In my opinion, not doing it was wrong. In fact, I ignored Dr. O'Brien.
Consider and treat the case in such a way that only his own diagnosis is required.

94. You may have felt coerced by the system, in which case the system's authors should be to blame. In both cases there is a breach of the duty of care for which the defendant is responsible.

95. Referring to what happened on March 22, the plaintiff stated that the lumbar puncture should not have been performed because it was contraindicated for a number of factors, the most important of which was intracranial pressure. This was disputed by witnesses summoned on behalf of the accused. The defense counsel for the examining judge preferred the latter test, which is why this ground of appeal is misguided.

96. The offense of negligence only exists in the event of a breach of duty and damage resulting therefrom. Although I have used the word careless to describe careless conduct, it was a
Colloquial use of the word. Whether the damage is based on identified violations of the duty of care and if so, to what extent the parties expressly only allow this to be determined when a violation of duty has been determined. This has already been established. Accordingly, I would allow the appeal and refer the matter to the Superior Court to determine whether the damages resulting from the breaches of duty by the first defendant on March 20, 1991 and the second defendant on February 20, 1991, February 23, 1991 and February 25 1991, or one of them and, if applicable, the extent of said loss.

Ken, J .

The facts in this case are fully established in Barron J.'s judgments. I concur with that judgment and the order proposed therein. I would just like to add a few comments on the trial of the first-named defendants/defendants (hereinafter the "Council").

In Dunne v. The National Maternity Hospital, [1989] JR 91 Finlay CJ, on behalf of the Court, set out the principles of law applicable
allegations of medical malpractice. In particular, the wise Chief Justice said:

"When a physician accused of malpractice defends his conduct by showing that he followed a common practice endorsed by his peers of similar expertise and ability, he cannot escape responsibility on the complaint to respond when demonstrating that practice is deficient, inherent features that should be apparent to anyone who duly studies the matter”.

98. I think it is safe to say that a lay court will generally be reluctant to condemn as unsafe a practice that is generally accepted in a particular profession. The shortcomings of a practice commonly followed by experts in the field are unlikely to be as apparent as the evidence warrants: if they were, it is reasonable to assume that they would not. But the principle first introduced by the court in O'Donovan v. Cork County Council, [1967] IR 173 is an important reminder that the courts must ultimately reserve the power to find unsafe practices commonly followed in an occupation.

99. In the Chamber's case, however, the court is not dealing with a medical practice as such. The accusation against the council is that due to the
Hospital admissions system, Dr. Only, a senior surgeon, was allowed to use his own judgment as to whether the applicant required urgent admission and evaluation in place of the judgment already made by an experienced general practitioner, Dr. Maurice O'Brien who did it. In my opinion, the claim that the board was negligent and breached their duty to the deceased in operating such a system cannot be refuted simply by the fact that it is a system that at least some other hospitals are operating these islands is used.

100. In any event, the evidence does not show that the system is in any way generally accepted. Mister. John Marks, a neurosurgeon who testified on behalf of the plaintiffs, said (Book 2, P419):

"W... did you get the statement from Dr. O'Brien, if my lord accepts that he tried to take the deceased to Limerick Hospital for an examination. What do you expect from the hospital after such a referral?

A. In my experience, having been an Accident Officer in the UK but not Ireland, the practices in both countries are essentially the same with very few differences: the medical etiquette between the two countries is the same but was a sho

[Senior House Officer] in the UK ER and worked here for a number of years I would expect them to see a doctor. I said in my report that I feel the SHO is in distress - it's hard for him to overrule an experienced GP, and if you want to override a GP's request for an urgent admission and examination, you need a reason for it, i.e. a more experienced doctor who takes care of the patient even if it is only a general practitioner SHO who is part of the team who may have discussed the matter with his secretary and adviser. I was concerned about that aspect of management.”

101. Professor Ian Bone, a consultant neurologist at Glasgow South General Hospital, said that GPs in Scotland have a right to ensure their patients are hospitalized and that he expects this to be the case. . However, on cross-examination he was told that GPs in Ireland had no such license right. Mister. Patrick Plunkett, Adviser to Accident and Emergency at St James's Hospital, Dublin, explained that Dr. Only in the present case was appropriate.
102. In contrast, Professor Peter Behan, a consultant neurologist in Scotland, said (in Book 4, Q445):-
“Here is a clinically ill man who is being cared for by the general practitioner and who is organizing admission over the phone. Suppose this letter arrives at the hospital in Glasgow. I can safely assure you that such a patient would be admitted for no other reason than the fact that if he didn't he would face a court case, but clearly he would have to be admitted because he is seriously ill."

103. Thus, the evidence clearly showed that it is far from generally accepted practice that Dr. Nur had the right to have his judgment replaced by that of Dr. O'Brien as to whether the patient required immediate admission and evaluation on an urgent basis was, in the board's view, disagreement at best.

104. It is important to recall the comparative experience of the two doctors concerned. Doctor Nur obtained a degree in Primary Medicine in Pakistan in 1987, Bachelor of Science in 1988 and then gained practical experience as a surgical intern for 1 year in Pakistan, a medical intern for 6 months in the Department of Neurology with a Professor of Neurology and later 18 months correspond to SHO in surgery in Pakistan. made an appointment in

105. Ireland as an SHO in 1990 and completed the first part of his fellowship at Glasgow College of Surgeons.

106. dr. O'Brien graduated in 1973 and has practiced since that year, i. H. approximately 18 years as of the date of the facts giving rise to the lawsuit.

107. A system which, on the basis of the Board's own evidence, enabled a resident hospital practitioner, although certainly of a relatively higher standard, to overrule a chief general practitioner's opinion that his patient required urgent further examination. without even having obtained a first-rate medical opinion, he clearly suffered from an inherent flaw that should have been obvious to anyone who gave him due consideration. It is not the same as a medical practice run by specialists in a particular field. In my opinion dr. O'Brien should have been enough to ensure that Mr. Event.

108. As the learned Judge of the Superior Court pointed out, Dr. Nur was criticized by some of the other doctors who testified, among others, for failing to protect himself by seeking another opinion. There is no doubt that today's doctors are more conscious than their predecessors

Risk of being sued for negligence. However, the opinion of the physicians I quoted that an OHSS should have consulted the medical team in this situation, rather than voluntarily overruling the GP's opinion, was not based solely on the convenience of protecting oneself. against a possible negligence claim.

109. The decision in this case should not be interpreted as encouraging general practitioners to refer patients to hospital when this is not necessary: ​​in the present case it was clearly necessary for the patient to be admitted and examined. There is also no reason to doubt the importance of a resident operated filtration system in the hospital to ensure that the hospital's limited time and resources are not overwhelmed by the admission of relatively small cases. Suffice it to say that based on the facts of the present case it is evident that the existing system could not separate a case that clearly required expertise from the more routine and even trivial cases.

110. I am satisfied that the appeal against the decision dismissing the case against the Chamber should be allowed on these grounds. I also agree that, for the reasons set out in the Barron J judgment, an appeal should also be allowed against the judgment dismissing the case against the second defendant/applicant. I also agree with the order suggested by Barron J.

Fitzpatrick v. Midland Board of Health

[1997] IEHC 76Johnson J.

1. This case arises from alleged negligence in the treatment of the Claimant at Mullingar General Hospital in May 1989. The Claimant was then a 32-year-old engineer. In the days leading up to May 3, 1989, he allegedly pricked his index finger with a thorn from a rose bush. It is also possible that he got his finger dirty with faeces or something similar while lifting a manhole.
2. On the afternoon of May 2, 1989, during a futsal match, the author was hit in the right index finger while playing in goal. When he got home that evening, his finger started throbbing. He tried to check whether or not he had a thorn in his finger using a needle that he had sterilized by immersing it in boiling water. He didn't find a thorn and the best kept hitting. The following morning, 3 May 1989, the applicant was due to leave for Dublin, but before leaving he presented himself to Mullingar General Hospital and complained of the condition of his finger. That was before 8 a.m. M. He was told that an X-ray would be desirable, but the X-ray department did not open until 9:30 am. M. He decided to go to Dublin and indicated that he would come back to the hospital in the evening.
3. In accordance with the terms of the agreement, the applicant appeared in hospital on the night of 3 May. Now she complained of pain and swelling in her hand and redness up to the elbow. He was prescribed antibiotics and hospitalized. He had an acute pulpal infection and lymphangitis. Lymphangitis extended to the forearm and upper arm. He was prescribed antibiotics and remained hospitalized. His finger was caught by Mr. Mine. Antibiotics were continued and a culture was taken and sent for analysis. The culture was considered sterile and on May 7, 1989 the author was discharged from the hospital with the finger in satisfactory condition. He was seen again on the 9th and told to return on the 16th. The applicant returned to hospital on the 16th, where it was found that he had a serious pulp infection in his right index finger. It was decided that he would remain hospitalized and have surgery to debride the finger.
4. This was done on May 17, 1989 by Mr. Mina, who removed tissue from the distal phalanx, swabbed it and sent it for culture.
5. At this stage, Mr. Mina decided not to give the Claimant antibiotics.
6. He continued to be treated in the hospital. Hospital records show that the swab culture result only came back on May 20. It appears from Mr. Meine up to 22 May, when antibiotics were finally prescribed, and those antibiotics were not administered to the Claimant until 23 May.
7. On May 24, Mr. Mina returned to the Claimant for treatment of her finger. This time the notes show that the tendon was intact but the tip of the index finger was necrotic and had just been debrided. Mister. Mina removed 2 millimeters of bone and continued debridement.
8. It turns out that Mr Mina was going on holiday at the time, so he decided to turn over the patient's care to Surgeon O'Riain, who was staying in Dublin, and by letter dated 26 May 1989 , Mr. Mina wrote to the surgeon O'Riain in the following words:

"Dear Sima,

This is the man I just called you about. He is a 32-year-old engineer who had a superficial infection with severe lymphangitis and was septic for about two weeks. There was superficial desquamation of the skin that I had removed and debrided, and there was a perforation at the site of a rose thorn, but no evidence of pulp space infection. I drained that and gave him massive antibiotics for three days and then he was sent home. He came back a few days late with a serious pulp infection which I have drained and now the tendon is exposed but he has a flexion of that finger towards his right index finger and as I am going on holiday you should take care of that take care of.

Best regards,

1 AG Mina, FRCS.
9. This letter is interesting for two reasons:-

1. Claims no pulp cavity infection on initial admission, while hospital notes clearly suggest so.
2. There is no mention that the surgeon actually removed 2 millimeters of necrotic bone from Mina's fingertip.
10. It appears that the Claimant was seen by Surgeon O'Riain on 27 May 1989 and, following an examination by Surgeon O'Riain and an X-ray, was diagnosed. Surgeon O'Riain said he considered the situation and developed osteomyelitis and amputated the distal phalanx of the right index finger. As a result, the author was left with a deformed, sensitive finger, which caused him a lot of suffering and problems, especially when it was cold, when he was doing sports, playing golf or using the computer.

11. During the trial it was interesting to note that there appeared to be some controversy among the defendants' witnesses as to whether or not it was necessary for Surgeon O'Riain to amputate the distal phalanx of the finger. but the crux of the case brought by plaintiff against defendants has now been resolved in the fact that surgeon Mina failed to prescribe antibiotics to plaintiff upon admission on May 16 or 17, certainly no later than May 19, 1989 administer.
12. Mr. Ward, Expert on behalf of the Claimant, indicated that on 16 and 17 May we had a situation of a very clear acute infection which, after considering the probabilities, was a recurrence of the previous infection and the right one in the treatment This would have been treated with broad-spectrum antibiotics, probably those that could treat the infection on May 3, 4 and 5, and this schedule should have continued until swabs and cultures are done, which would indicate the nature of the infection, and a more specialized antibiotic . He said, in his opinion, that this probably would have meant the finger would not have had to be amputated, although he felt that if it had always been weak, that it would not have affected the degree it does today , either aesthetic or functional.
13. On the contrary, surgeon Mina testified, pointing out that he made the decision that the correct way to treat the case was not the initial administration of antibiotics on the 16th and 17th, but debridement, or the removal of totem tissue. let nature take its course until the hyssop is grown and the specific antibiotic to be used is identified. He felt it wouldn't have made any difference in the end result anyway.
14. Mr. Varian presented evidence that it was a perfectly legitimate thing for Mr. Meine to do, i.e. not immediately give broad-spectrum or general-spectrum antibiotics. He said that in his opinion the most likely cause of the infection was a recurrence of the original infection, and therefore stated that had he been his patient he probably would have given antibiotics immediately, although he found that in many cases the pus these wounds were considered sterile in the analysis. However, Mr. Varian felt that the May 23 delay for antibiotic administration was unreasonable. O'Riain, who performed the surgery, finally agreed that delaying the swab collection for administration of antibiotics from the 17th to the 23rd was not sensible or acceptable practice, stating that the swab and culture could be taken by May 19 should be returned.
15. Therefore, the situation in the case seems to be as follows:-
16. Surgeon Mina decided on May 17th not to use broad spectrum antibiotics and this appears to be a practice shared by Mr Varian and, I believe, Surgeon O'Riain.
17. But not by Dr. Ward, and given the circumstances, it cannot be said that the failure to use broad spectrum antibiotics in a timely manner was negligent. However, it is clear from the evidence that Mr. Meins's would have been grown in the lab on May 17th and should have been returned on May 19th, no investigation has been conducted into it. , which was returned on May 20, that no action was taken by May 22, and that no effective action was taken by May 23. Everyone accepts that this was unacceptable. So the first question I have to ask is:-

Question 1. Were the defendants negligent in not ensuring that broad spectrum antibiotics were used on May 16 or 17?
Answer. The plaintiff has not presented a case in this regard.
Question 2. Should antibiotics be given after getting the swab result?
Answer. Yes.
Question 3. When should the swab test be delivered?
Answer. It should have been delivered on May 19th.
Question 4. Was it negligent not to report the result of the swab test?
18. dr. Mina didn't act until May 23 either.
19. The answer, in my opinion, is yes.

Question 5. After weighing the probabilities, the end result would have been better if the antibiotics had been administered on May 19th.
20. And in this respect I accept the statement of Dr. Point out that, considering all probabilities, there would have been an improvement in the final outcome of the Claimant's condition if, at the same time, i.e. H. for the 19th

21. In this sense, I believe that if a surgeon or hospital takes a stance not to use broad-spectrum antibiotics immediately, this increases the responsibility for ensuring rapid culture of the swab and use of specific antibiotics. , as soon as possible to ensure that the benefits derived from them have the greatest possible chance of being realised. I am satisfied with the statements of Dr. Ward that if the antibiotics had been applied as they should have been on the 19th, the finger, though still defective, would have been better than it is now, and that, considering the probabilities, amputation would not have been necessary. I shall therefore award the plaintiff £20,000 in general damages for finger injuries.

22. And I repeat that it is important that if the defendant is undergoing a course without the use of broad-spectrum antibiotics, it is necessary that (a) a swab culture report be presented to the attending physician as soon as possible (b) informed and ( c) therefore be empowered to act as soon as possible.

Daniels and another against Heskin

[1954] IR 73

The plaintiffs in this lawsuit, led by Mr. Judge Casey and a jury under the direction of the coroner, are seeking to overturn the verdict and sentence against them and to order a new trial.
They are husband and wife and the alleged negligence lies on the defendant's part as a doctor in the custody of his wife. The local midwife, Nurse Power, had safely delivered a boy. While being so devoted, she suffered a perineal tear. The defendant, a doctor at the local pharmacy, came to respond to a subpoena from Nurse Power and sew up the laceration. While he was doing it, a needle broke off. Part of that needle stuck in the flesh. The defendant completed the stitching with a different needle. He did not tell the plaintiffs or any of them what happened. They later found out, and about eight weeks later, another doctor successfully removed the broken part of the needle.
The doctor is liable for damage that he causes to other people for whom he is responsible if he does not have the expertise customary in his profession or does not use his own expertise or the required or promised care. This statement is taken from Halsbury's Laws of England, vol. 21, paragraph 634, and it seems to me to sum up the law correctly.
It is admitted that the plaintiff's defendant, Mrs. Daniels, had a duty of care.
Negligence was alleged under three headings: 1, the breakage of the needle; 2, failure to remove the defective part immediately; 3, Failure to notify the authors or any of them of the needle breakage.
The learned trial judge ruled that the jury could not be presented with evidence in which they could find negligence under any of these headings.
As to the first allegation of negligence, I believe there is no evidence that the jury could use to determine that the needle broke as a result of negligence on the part of the defendant.
The second count of negligence is that the defendant failed to recover the broken needle from Ms. Daniels. From the expert evidence that agreed on this point, two avenues opened up; one was to stop sewing and remove the broken needle before it was finished; the other to finish the stitching and wait a few weeks before removing it. The latter was the course chosen by the defendant and it emerges from the expert reports, provided that one of the courses corresponds to accepted medical practice. However, I believe that the question of whether the defendant had the right to decide what to do is related to whether it was his duty to inform one or both of those responsible for the accident immediately after it happened . .
The only case brought before the court on the latter question was Gerber v. pins (1). There Judge du Parcq said it seemed to him “that a patient in whose body a doctor has determined that he has left a foreign substance has a right to be informed immediately. That was the general rule, but there were exceptions. Reference is also made to a US case note contained in Taylor's Medical Jurisprudence, 9th ed., vol. 1, on p. 83, Eislein v. Palmer (2), which appears to have ruled that a doctor has no obligation to tell a patient or her husband that a broken needle has been left in the patient's body while she remains a patient, but that there is a duty to tell her share when he released her from his care.
In my opinion Mr. Justice du Parcq got the rule right. In the present case no reason is given why the accused should be relieved of his apparent duty. There was no evidence that telling the patient what had happened would result in serious consequences.
when i pass Even if it turned out to be Mrs. Daniels, there's no reason your husband shouldn't have been informed. The fact that there was a choice between the two alternative routes above meant, in my view, that it was up to the defendant to at least inform the husband and leave it up to him to decide whether his wife should be informed and, in any event, leave it the patient or his spouse make the decision. The defendant would have clearly indicated that he would complete the suture and delay the operation to remove the broken needle by a few weeks. However, it was the patient's and her husband's prerogative to decide whether to accept or reject such advice if given.
In my opinion, the jury should have been asked to consider whether the defendant acted negligently in failing to notify the plaintiffs of the broken needle.
Judgment and verdict must be overturned and a new trial ordered.

Murnaghan J.:
I agree with the sentence read by Judge Lavery.

I agree with the sentence that is read.

Plaintiffs are contesting the dismissal of the complaint in this court based on the judge's decision that, on the evidence, there was no case for the jury to consider as of right and that if the case prevailed, it would stand for their consideration they do not openly accuse the defendant of negligence and award damages.
The respective roles of judge and jury are well established and there has been no controversy about them.
In all cases heard by a judge and jury, there is a preliminary point of law, which is whether there is evidence that the jury can properly rule in favor of the party that bears the burden of proof. If not, the judge must withdraw the jury's question and rule that the suit will not be enforced if the plaintiff is at fault. There is no doubt that the burden of proof was on the authors.
There's also no serious argument as to what the question was.

Defendant has undertaken to treat Plaintiff, hereinafter referred to as Plaintiff, as a physician and is responsible for any harm caused by her treatment if she does not reasonably have the ability to do so what she did. or if he possesses that ability and has not used it with reasonable care.
I need not repeat the course of events already explained by the Chief Justice of the Supreme Court.
The plaintiff accuses the defendant of a triple breach of duty. First, that the offender broke the needle he was using while suturing, leaving the broken part within the offender's body, and that the jury openly concluded, based on the evidence, that this was due to lack of skill or incompetence or negligence on the part of you. Second, his subsequent treatment of the plaintiff after the accident was inappropriate. Third, that after the accident it was their duty to inform the plaintiff or her husband so that, if they so wished, they could seek the advice and treatment of another doctor and thus avoid the consequences that allegedly would have followed an act said it, inaction of the accused.
As regards the first question, the applicants concede that the principle or phrase 'res ipsa loquitur' does not apply here and that, according to the evidence, the needle could have opened as a result of an error which the authority could not detect or from the doctor. otherwise without your negligence.
This is certainly the case. Three doctors testified and all agreed, yes.
However, Mr. McKenna argues that it would have been open-ended because there was evidence that a needle breakage during a surgical procedure is more often due to an imperfection in technique on the part of the surgeon than a defect in the instrument. the jury on weighing the likelihood of finding it was caused by negligence.
Leaving aside the question of whether technical defects are to be regarded as negligence in all cases, it seems to me that Mr McKenna intends to apply the principle of 'res ipsa loquitur' in a different way and that his reasoning is wrong.
Certainly, when there is positive evidence that an event was caused in a certain way and other positive evidence that it was caused in some other way, the jury must decide between such evidence after weighing the probabilities of how it actually happened . happened.
That is not the case here. No evidence presented at trial would support the conclusion that it was the form of the transaction that caused the default. On the contrary, e.g
Whatever evidence there is, and it is very sparse, would tend to show that the accepted and normal route was followed. I refer to the evidence from Nurse Power and Dr. O'Keeffe that he found the needle in its original position and does not suggest that it was misused.
It certainly isn't in my opinion a jury's place in this state of affairs to attribute the breakage to a technical defect on the grounds that 60% of broken needles are caused by it, and the same goes for any other statistical record of such events to the point where the prevalence is so high that it becomes a case of res ipsa loquitur, shifting the burden of proof to the defendant to make a statement and prove that the accident was not due to his negligence.
In my opinion, the first plea falls short and the trial judge's wise decision on the merits was correct.
Was the defendant's actions inappropriate after the needle broke?
The doctor. Davidson, former head of Rotunda Hospital and respected gynecologist who called the plaintiff, said essentially that he would have taken the same route as the defendant, that he would complete the suture, keep the part under observation and keep track of the Could not retrieve needle Postpone an operation to remove the needle for two to three months, firstly, hoping that it will come out by itself, and secondly, to avoid infection and let the infection time pass before the operation when the needle does not come out.
Mister. Chance presented evidence on behalf of the defendant that had essentially the same effect.
Against this evidence, Dr. O'Keeffe said to question 573, "I think I would take the patient to the hospital immediately and do that that night or the next morning, give anesthesia, put her to sleep and try to remove the needle," and that she didn't think there would be any trouble doing it.
There is nothing in his testimony to indicate that, while he could have taken a different course, he considered the defendant's course inappropriate or in any way incorrect according to accepted medical practice.
With that evidence, I don't think it would be up to the jury to find the defendant negligent.
The defendant was obliged to possess and use appropriate skills, taking into account his status as a general practitioner and the circumstances of the individual case. If I Maugham L.J. In the case of Marshall v. Lindsey
Provincial Councilor (1): "I refer to your statement as an illustration that on this matter, as on so many others, doctors differ, and given this undisputed and honest difference of opinion, I do not think it is amenable to a jury to hold that it negligent in accepting one view in place of the other', and again (on page 540): 'I do not doubt the general truth of the observation at trial' [in the case of Vancouver General Hospital v. McDaniel (2)] 'that a A defendant charged with negligence may be acquitted if it is shown that he acted in accordance with general and accepted practice."
Maugham L.J., he was a dissenting judge, but I read no differently on this point the judgments of the other members of the Court or House of Lords to whom the case was brought. In any case, my point of view is the same as that of Maugham L.J. A contrary point of view would lead to strange results, so obvious that I need not explain them.
In my opinion, the decision of the wise coroner on this issue was correct.
The question remains as to whether the defendant should have told the plaintiff or her husband that a needle had broken off and that the broken part was probably in his body and whether this was the result of negligence or a breach of duty. found an action
As the President of the Court said, this question is related to the matter I have already discussed, namely the defendant's decision to terminate the suture and, if necessary, to postpone an operation to remove the needle until the time of infection. had passed.
The doctor's duty to educate his patient about the treatment he is giving and about incidents like the one he is investigating was discussed at length in the argument. Of course, there are some things that a doctor should disclose so that his patient has the opportunity to decide whether to accept his point of view or to see another doctor and has the opportunity to choose between alternative paths. An example would be when a dangerous operation is contemplated.
On the other hand, there are questions that the doctor must decide for himself after accepting the responsibility for the treatment of his patient and considering his competence and expertise on which he relies. A clear example would be when an unexpected complication occurs during an operation.
Which category does this case belong to?
From the evidence I believe it appears that after the needle broke the defendant had the opportunity to stop the operations, to inform her husband and to send the plaintiff to the hospital immediately (if this is possible) and to be x-rayed and operated on there. to withdraw the needle or to stop sewing and postpone the withdrawal operation.
I have previously expressed the opinion that Defendant acted reasonably and without negligence in choosing the latter route.
After that decision was made, the evidence shows that the defendant and the nurse discussed whether the plaintiff should be informed and agreed that it would be better not to tell her for fear of endangering her health . There would have to be a six week period when nothing could be done except keep the patient under surveillance. According to the defendant in his letter of October 24, 1951, he did not inform the patient because "he was of the opinion that if this fact were communicated to him at the time, it would only cause him unnecessary mental anguish".
This seems like a sensible decision to me and includes not telling her husband. Under these circumstances it would not have served to inform the patient or her husband.
However, it need not be said that the decision was correct. In order to prove negligence or breach of duty, the plaintiff would have to show that the decision was inconsistent with the proper performance of the defendant's medical duties.
Furthermore, in order for the claim to be successful, the agent would have to prove, even assuming the obligation to testify, that the damage on which the claim is based was caused by the omission. In fact, the needle was successfully used by Dr. O'Keeffe at the appointed time and the event justified the defendant's course of action. I can find no evidence that the non-disclosure harmed the plaintiffs.
For these reasons I am of the opinion that the judgment of the wise investigating magistrate was correct in all its extremes and the present complaint should be dismissed.

The plaintiffs are a worker and his wife who live approximately five miles from Waterford and the defendant is the doctor at the pharmacy in the county where the plaintiffs reside. He
The plaintiffs are seeking damages for negligence and breach of contract, respectively, alleging that the defendant, hired to treat the plaintiff, was negligent on three counts in that he allowed a surgical needle to break while suturing the perineum, failed to repair the broken portion remove the needle from, or take steps to remove, the perineum and failed to inform the plaintiffs that the broken portion remained in the perineum.
At 11:00 p.m. on June 17, 1951, the wife gave birth to their first child, during which the perineum was torn so severely that it required stitches. Consequently, Nurse Power, a midwife with over thirty years' experience who attended the birth, sent for the defendant the next day. She arrived at 11am, found the needles she needed from her bag and gave them to the nurse, who sterilized and sewed them up. The first stitch went in with no problems, but during the course of the second stitch the needle broke and buried about 1 1/2 inches in the ridge. Another needle and suture were prepared and with that the second suture was placed. Both the doctor and nurse looked for the broken part of the needle but couldn't find it, and the doctor told the nurse that "it must be there," meaning it's in the perineum, saying, "We need an X-ray" and then "you need an X-ray". Before he left, he instructed the nurse to attend to the patient, check her pulse and temperature and tell her if anything was wrong, she worried or the patient has any discomfort She does not appear to have given any specific instructions about the needle but Nurse Power understood that these instructions were given in relation to the needle and also understood that the patient would be x-rayed if the needle was not found within six weeks.
The patient remained under the care of Nurse Power and made a normal recovery. After nine days, the stitches were removed and the patient got up and went about her normal life. She was suffering from what she called "anger," a word that appears to mean "braking" and that Nurse Power says is a normal postpartum trait, and as she squatted down, she said she felt on top of the Box like she had a piece of wire in her flesh that would pierce it. Nurse Power cared for her every day for nine days after delivery and saw her for walks or socializing about twice a week thereafter. No complaints
Nurse Power was asked how the thread felt, but the patient complained of "anger." Nurse Power saw and informed the defendant about three or four times in the six weeks after the birth and told him that she could not find the needle. When the six weeks were up, Nurse Power, without further instructions from the defendant but in accordance with what she believed had been arranged on the day of the suture, took her patient to Waterford to see a Dr. O'Keeffe that he is a surgeon and gynecologist and ordered an x-ray. The X-ray showed that the broken needle was stuck deep in the perineum. After a delay of about fifteen days until a bed was cleared, the patient underwent surgery on August 13, and the broken needle was not removed without difficulty. On August 26, she was discharged from the hospital after the surgical scar healed and her health developed normally. In court, she said she would have another child on June 24, just over 12 months after giving birth to her first child.
Sister Power informed the defendant of the steps she was taking and believed she was following her instructions. She says when she sees Dr. Heskin taking the patient to Dr. O'Keeffe, he looked happy.
For complainant Dr. O'Keeffe and Dr. Davidson, a former Rotunda Hospital Master, provided expert testimony. On behalf of the accused Dr. Arthur Chance, a very respected surgeon, was consulted and his testimony was included for convenience after the plaintiffs' doctors submitted their testimony. The defendant himself was too ill to attend the trial. The trial judge ruled in favor of the plaintiffs, withdrew the jury's case on the grounds that there was no evidence of negligence, ruled in favor of the defendant against that decision, and ordered the plaintiffs to appeal.
There was very little dispute as to the facts, and the case turns as to whether there was any evidence from the admissible facts that the defendant was negligent in treating his patient in any of the three suggested ways, and the answer depends chiefly on that off to The expert testimony of doctors.
The first alleged negligence was allowing the needle to penetrate the patient's tissue. All doctors agreed that needles can and do break due to steel imperfections, with not the slightest error being attributable to the user. As I understand it, all doctors also agreed that during an operation a doctor can break a healthy needle if the doctor pushes it too hard, either through
Take a very large fold of fabric, lightly strain the needle or subject it to some other tension. The doctor. Chance called this a "technical imperfection," but clarified that it is an imperfection that is within the bounds of human nature and does not amount to negligence: "There is not a living surgeon who has not broken a needle many times ", "All the most skilled people in the world have done that", "The most competent surgeons in the world have broken needles. The masters broke them. Davidson said, "Often times I've broken needles myself by trying to push too deep into the needle or putting too much pressure on it," and on cross-examination he reiterated that needles often broke on him, but he denied any negligence on his part in this area. dr For his part, O'Keeffe seemed luckier than his colleagues in doing this, only breaking needles twice.
If a needle can break due to a defect in the steel or due to handling that is not negligent, there can be no doubt as to the application of the principle "res ipsa loquitur" and must not be evidence of clear negligence on the part of the doctor. It was suspected that the doctor used the wrong type of needle. The needle usually used for this type of suture is the fully curved semicircular or perineal needle, and the x-ray showed that the doctor had used a less curved needle. But about that, Dr. Davidson said, "I have to say that not everyone uses a fully curved needle. Some use the half-curved needle. Some may use the less complete curve.' O'Keeffe agreed that different types of needles were used, based on individual choice.
It was also suggested that the needle was too fine, but it was recognized that a fine needle has the benefit of minimizing pain and no doctor said the needle used was not too fine.
I can find no evidence to support the jury's conclusion that the needle's breakage was due to the defendant's negligence rather than an unforeseen weakness in the steel or an accident such as can happen with the needle. most qualified operators, especially when working in difficult conditions. Not achieving perfection is not the same as being careless.
If the doctor did not negligently break the needle, did he negligently leave the broken piece in the tissue for later removal? There was disagreement among doctors as to which course was most appropriate. The doctor. Davidson said that if he were a country doctor, he would sew up and find the patient in his own home
it was difficult to break off the needle immediately, he considered suturing the patient up and letting her see if the needle came out later; but if the needle did not heal by itself in three or four months he would operate on it, and he would operate sooner if the pain or temperature indicated damage had been done. The doctor. O'Keeffe said: "I think I would take the patient to the hospital immediately. . . Give an anesthetic and try to remove the needle.” He made it clear that he would prefer to leave the needle in situ for a few weeks or months before the surgery unless he could within 24 hours of the Surgery to break off the needle. The doctor. Chance felt that if the needle breaks during an operation in a hospital operating room, it would be best to locate and remove the broken part immediately, but if the damage occurred in a private home and the broken part would not be located could and removed immediately, so it is best to stitch the patient and remove the needle after about six weeks.
None of these eminent physicians claimed to be dogmatic; none of them suggested that a course different from the one he favored would necessarily be wrong; certainly none of them claimed that taking the alternative course was negligence. I would like to emphasize that an honest difference of opinion between eminent physicians as to which of the two ways of treating a patient is better provides no reason for leaving the jury to decide whether a person who has taken one way, who other was guilty of negligence. It would be different if a doctor had expressed the opinion that the path taken was definitely wrong. In this case, the defendant assumed that Dr. Davidson, Master of the Rotunda, who for many years was responsible for teaching best practice in midwifery, believes it was right and what should have been adopted in the circumstances. Neither the honesty nor the competence of this opinion has been questioned; actually dr. Davidson was brought in as a witness for the plaintiffs. I don't understand why dr. O'Keeffe suggested that there was some negligence in leaving the needle in place for later removal, although he himself would probably have attempted to remove it sooner had he been certain that the operation would be within the next twenty days would be carried out. four o'clock. There are no indications that the accused can be sure in an emergency that he will take appropriate precautions to carry out an operation in a timely manner, and Dr. O'Keeffe, when this could not be ascertained, the most appropriate route was taken by the defendant.
It seems to me that there is insufficient evidence for a jury to suggest that the defendant negligently left the needle in the tissue with a view to removing it at a later date when the tissue should have healed and there was a risk of infection would have diminished.
The third negligence charge against the defendant was his failure to promptly inform the patient or her husband that part of the needle was buried in the tissue.
Plaintiffs' attorneys pointed out that there is a rule of law that requires such information to be provided. It was initially based on the words of Mr. Justice du Parcq in Gerber v. Pines, very briefly reported in 79 Sol. yeah 13. There the wise judge is said to have said, “It seemed to him that a patient whose body a physician discovered had left behind something alien had a right to be informed at once. That was the general rule, but there were exceptions. Next, the attorney referred to an American case cited in Taylor's Medical Jurisprudence, 9th Ed., Vol. 1, at p. 83, Eislein v. Palmer (1), which appears to have ruled that a doctor has no duty to tell a patient or her husband that a broken needle was left in the patient's body while she remained a patient, but that there is a duty to tell they say as he releases them from his care.
I very much doubt whether the judges in any of these cases intended to establish the rule of law. If so, I must respectfully disagree. A physician owes his patient certain well-recognized duties. You must have knowledge and skills consistent with the recognized contemporary standards of your profession and, if you are a specialist, additional and specific skills and knowledge that you claim to possess. You must use these skills and knowledge to make an honest and informed judgment about which route, course of action, and treatment is best for your patient. You must show due care and attention when treating your patient or arranging for appropriate treatment for them. Any attempt to replace the individual judgment of a qualified physician with a legal norm, or even a practice, doing what he believes is best for the individual patient would be disastrous. There may be instances where subsequent events show the doctor's judgment to be wrong, but if he is honest and considerate, and can justify himself under the circumstances he knows at the time, he is not guilty. Negligence Indeed, there may be instances where the nature of the judgment formed or the advice given provides clear evidence that the physician did not have the requisite knowledge and skill or that his judgment could not have been honest. attentive. however, it is for the plaintiff to provide evidence from which such breach of duty can reasonably be inferred.
I cannot accept an abstract obligation to tell patients what is wrong with them, or in particular to say that a needle has been left in their tissue. It all depends on the circumstances: the patient's character, health, social status, intelligence, the type of tissue into which the needle is inserted, the possibility of subsequent infection, the arrangements for observation and further care. , and numerous other considerations. In the present case, the patient was at a time after childbirth when the possibility of a nervous or mental disorder is known; the needle was not located where immediate damage could be expected; Husband and wife were of a class and level of education which would cause them to exaggerate the seriousness of the act and suffer needless alarm; and arrangements were made to keep the patient under observation during the period when sepsis might occur and to X-ray the patient at a time when bruising and birth injuries should have resolved. If I had the opportunity to speak on a jury, I would say that the defendant's actions were correct. This question is not directly before this court. What we need to consider is whether it was so wrong to provide evidence from which a jury could reasonably conclude that the defendant breached any of the duties to his patient that I have already enumerated. In my opinion, there is no such evidence.
All physicians surveyed felt that it would be reasonable for a physician to inform a patient or family member of such a mishap, but from a selfish perspective, to shield the physician from the possibility of future events. annoying actions. so dr. Davidson said he would let the patient know otherwise he "could find himself in a terrible mess." "From my own point of view, I would inform you while protecting my own interest." On cross-examination, he admitted that a choice had to be made between "being right by informing the patient or taking the risk and sparing her the fear". DR. O'Keeffe said he told someone in the family; but he agreed that there are patients who should not be informed immediately after delivery, that in any case a doctor should make his own decision and that, as Dr. Heskin and Mrs. are in the best position to make up their own minds. Mister. Chance thought the patient shouldn't have been told; that there was no reason to inform him, except for the doctor's own protection; that a doctor should tell someone in his own interest.
Here the defendant said Mrs. Achievement. No doubt in her generation it would be wise to tell her husband and thus avoid future problems. But this policy, while justified out of self-interest, may seem less commendable to some than the alternative of "taking a risk" to avoid patient anxiety.
Nor can I see how the patient's interests would have been protected in this case by informing her husband, which would have frightened him and, if he had disclosed what he knew, would have frightened her. It has been suggested that if her husband had been informed he might contact Dr. O'Keeffe, who in turn could have provided a bed and removed the needle within 12 to 24 hours, which he saw fit. Although the husband has been examined, he has never claimed to have taken this route and if we consider Dr. Business. Even if there was an obligation to provide information, which in my opinion was not given in this case, I cannot conclude that damage was caused by the violation of this obligation.
To avoid any misinterpretation, I would like to add that I do not wish to claim that a doctor is ever entitled to keep such knowledge to himself. In all cases, there is a clear obligation to take precautions against patient injury from the presence of the needle. The nature of these precautions varies from case to case. In the present case, the arrangements with Ms. The authority to closely monitor the patient and take an X-ray at the appropriate time would be such as to make it impossible to establish that the physician did not exercise honest judgment. responsible and with due regard for the interests of its patients.

Walsch v. Family Planning Services Ltd

[1992] IR 505 Supreme Court Finlay C.J.

Plaintiff sued defendants for damages for negligence and personal injury in connection with a vasectomy operation performed by second and third defendants on April 3, 2008.
By order dated July 17, 1989, filed by MacKenzie J. in Superior Court, the court (a) found that the defendants were not negligent, (b) found that there was a technical assault and an assault on the plaintiff in meaning, as he did, consented to the participation of Dr. Kelly in the operation and estimated the total damage suffered by the plaintiff at £42,500 and ordered him to recover that sum from the defendants.
The defendants appealed the decision awarding the plaintiff £42,500 in damages and instead sought an injunction to dismiss the plaintiff's claim or, alternatively, an injunction to reopen the proceedings. The plaintiff lodged an appeal in cassation against this decision, appealing as follows:
(1) against the granting of damages due to inadequacy,
(2) against the dismissal of the action for negligence and
(3) to a finding that the defendants had given the plaintiff notice of the probable or possible consequences of the transaction and that such notice was sufficient.
I have read the judgment which O'Flaherty J. is about to deliver, in which the facts of this case and considerable detail of the evidence presented are fully and, I believe are accurately set out and need not be repeated in this one Verdict.
The problems
The issues that arose in the appeal and sub-appeal hearings are as follows.
1. Whether the trial judge's conclusion that the plaintiff did not demonstrate negligence in performing the vasectomy operation was supported by the evidence presented to him.
2. Whether the plaintiff was entitled to an affidavit of negligence against the defendants resulting from the fault of the defendants to inform him of the possible consequences of the vasectomy surgery performed on him.
3. Whether the trial judge's finding that the defendants were guilty of a "technical assault" against the plaintiff for failing to inform him that the third defendant would participate in the conduct of the operation was supported by the evidence and accurate
4. Whether, according to the evidence, the plaintiff was entitled to a confession to the assault because the defendants had not sufficiently advised him of the possible consequences of the vasectomy operation.
5. If the perpetrator had the right to declare aggression on the accused, he was entitled to compensation for all the consequences of performing the operation on him, arising from the fact of the aggression or not.
6. If the plaintiff was entitled to damages for aggression for all the consequences of the operation being performed on him or for negligence in not informing him of the possible consequences of the operation, the sum of £42,500 was sufficed by the learned judge of first instance.
With regard to these questions, I have come to the following decisions.
1. Negligence in carrying out the operation
The evidence before the learned coroner, who apparently accepted according to his verdict, was that the complication suffered by the perpetrator as a result of this operation was orchialgia, a rare condition the cause of which is not yet known. . known to medicine, but found in a tiny proportion of cases as a result of a vasectomy operation, although the causal connection between the operation and the disease has not yet been established. No evidence was presented to the trial judge that a lack of care in performing the operation was or could be associated with the occurrence of this condition of orchialgia. Cross-examined by the medical witnesses summoned on the applicant's behalf, they failed to find any negligence during the operation, evidence of which was presented in court. In the circumstances, I am satisfied that the learned coroner was clearly justified in concluding that there was no negligence in the completion of the transaction, and indeed it seems to me that to reach the contrary conclusion would lead to that being the case would be difficult to substantiate the evidence that appears in the transcript.
2. Negligence because the possible consequences of the process were not sufficiently recognized
I am convinced that there is of course a clear obligation on the part of the doctor who performs or has an operation performed, whenever possible, to inform the patient about the potentially harmful consequences of the operation. , to allow the patient to give their informed consent for the operation in question to be performed. I also believe that the scope of this obligation should, as a matter of common sense, vary according to what might be termed the elective nature of the operation in question. Of course, and also in cases of emergency surgery that must be performed on unconscious children or infants who are capable of consenting or refusing, there may be cases where, according to medical knowledge, a specific operation can be performed despite significant risks of harmful consequences. This intervention is so necessary to to preserve the patient's life or health, and the consequences of failure to do so are so clearly adverse that limited discussion or warning of possible side effects may be harmful. fitting and appropriate. On the other hand, the obligation to warn of the possible harmful consequences of a surgical procedure, which on the other side of the scale could be called an elective, as vasectomy would undoubtedly be, can be more stringent and costly. However, I am convinced that the care that a physician must exercise when warning of the consequences of proposed surgical procedures is not fundamentally different from the care that physicians must, and do have, exercise when treating or advising There is no good reason to believe that the question of negligence arising under this heading falls outside the general principles which have been pronounced by this Court in previous cases regarding standards of treatment and methods of determining whether they arise in cases of medical malpractice summarized in Dunne (Infantile) v. National Maternity Hospital [1989] I.R. 91, the summary of which is set out in the judgment that McCarthy J. will deliver. However, I am convinced that it is true that a doctor who is accused of negligence, consisting in not giving sufficient warning of the possible consequences of an operation, defends his conduct by arguing that he has followed a common practice which can certainly be fashionable in relation to operations is clearly elective that the court might more easily conclude that the extent of the notice given or not given had inherent flaws which should have been apparent to anyone having due regard to the matter , than in complicated medical or surgical procedures, and a claim that while they were commonly believed, they were inherently unsafe.
The learned trial judge, in his decision in this case, accepted Dr. Sheehy-Skeffington, who acted as principal for the first defendant, informed him that "very rarely, without any known reason, some patients have pain for a few years after the operation" and that this pain lasted indefinitely, but this was very rarely. I am satisfied that this was a reasonable and sufficient warning of the existence of the possible consequence of orchialgia, to which I have already referred in this judgment. This consequence has occurred in very rare cases with no known cause, to the knowledge of the medical profession at the time of the conversation between Dr. Sheehy-Skeffington and plaintiff. According to the evidence in the case, Dr. Sheehy-Skeffington was then aware of one case among thousands of vasectomy surgeries performed by the first defendant in which such a complication occurred. Despite medical evidence to the contrary provided by some of the witnesses who were summoned, I believe that this doctor had a duty to inform the author of this possible consequence. The fact that he was given such a warning was entirely denied by the author and also by his wife, who was present at the time Dr. Sheehy-Skeffington testified that the warning had been issued. I strongly believe that the learned trial judge had the right to accept the doctor's testimony and to reject the plaintiff's and his wife's testimony on this issue, and that this court cannot change that conclusion on appeal. .

However, in this part of the case, the additional question arises as to whether, given the evidence of what happened to the plaintiff, in addition to the persistent pain identified as orchialgia by several of the witnesses following this operation, there were multiple failed operations involving removal of a testicle and apparent loss of potency, apart from or in addition to loss of sexual ability due to pain, were matters which, with an appropriate standard of care, were a possible outcome to be attended to. I am satisfied that the evidence has not proved that these various sequelae were a known complication of a carefully performed vasectomy operation, and that the evidence went further than I have already indicated, namely the presence of persistent and indefinite pain, that of orchialgia , in a very limited number of cases even expressed in single numbers under several thousand. For this reason I conclude, regardless of whether the author has denied having given such a warning and is therefore unable to offer any other than a hypothetical opinion of what he would have done if he had given it . Warning that the learned judge of the first degree accepted that Dr. Sheehy-Skeffington had provided sufficient facts on that occasion to fulfill his responsibility to exercise due diligence.
3. Validity of determination of technical aggression
I agree with the conclusions that O'Flaherty J. comes to in the sentence he is about to comment on this subject. In my view the evidence has proved conclusively that the plaintiff's consent was for a person employed by Family Planning Services Ltd., the first accused, to perform this operation on him for that purpose. According to the evidence presented, the operation was always under the full control of the second defendant who did so. No evidence was presented that the intervention of the third party defendant, who was a supporting actor in the operation, would have altered in any way the nature of the operation or the consequences that resulted from it. It was obvious that the plaintiff, who was never under general anesthesia, was aware at all times of the intervention of the third defendant in the operation. He came to this organization, the first suspect, to do this particular operation and that is exactly what was done. In my view, it is incorrect from a legal point of view to claim that the intervention of the third-party defendant, even if the originator was not informed of it beforehand, could or would affect the consent that it was necessary for the operation to take place. it is made legal. In these circumstances, it would allow the defendants to appeal the finding, including technical aggression, in the case.
4. Personal Injury Claim for Insufficient Warning
In view of my decision that the warning issued was sufficient and that the decision of the lower court in this regard cannot be reversed, this question does not arise for the decision in this case. However, after reading the judgment O'Flaherty J. was about to deliver, and in particular his acceptance of the principles contained in the Supreme Court of Canada's Reibl v. Hughes (1980) 114 DLR(3d) 1, I believe that it is legally correct to say that a doctor, in connection with surgery or other treatment, has not adequately or adequately advised of the possible future risks associated with the patients are suffering, a reasonable cause of action against that person for any resulting damage is a claim for negligent damages, and, as O'Flaherty J. says, a claim for personal injury should be limited to cases in which no consent there are proceedings relating to the individual or where the apparent consent has been falsified through fraud or deception.
Notwithstanding the very serious and painful consequences of this operation, as evidenced by the evidence suffered by this unfortunate plaintiff, I conclude that the defendants are entitled to succeed in any appeals they have filed and the plaintiff fail in her marriage. Therefore, I do not want to comment on the two questions of damages, which from my point of view do not arise now.

hedermann j.
I agree that O'Flaherty J.

McCarthy J.
The first statement of alleged negligence and breach of duty in the Complaint reads:

"Failure to alert the stakeholder to the risks associated with the procedure, and in particular the possibility that undesirable symptoms with such radical implications may later develop."
It is not disputed that the plaintiff's sex life ceased in 1987. Parsons, Consultant Urological Surgeon at the Royal Liverpool Hospital, noted the possibility of a successful vasovasostomy or vasectomy reversal, and this is supported by the literature produced in the study ("Open vasectomy, sperm granuloma and post-vasectomy orchialgia", 32 Fertility and Sterility No 5) seemed to accept that the applicant's condition, including impotence, is permanent and incurable. My judgment does not depend on the resolution of this question.
Whose choice is it?
The principles of law applicable in cases of alleged medical malpractice have been clarified by decisions of this court: O'Donovan v. Cork County Council [1967] I.R. 173 and Dunne (infantile) v. National Maternity Hospital [1989] I.R. 91. In the Dunne case, Finlay C.J. details them on p. 109 of the report:
"1. The true evidence of a physician's negligence in diagnosis or treatment is whether he has been found guilty of an offense which no physician of like specialty or general condition and experience would have been guilty of had he exercised normal care.
2. If the allegation of medical malpractice against a doctor is based on proof that he deviated from general and recognized practice, this does not justify medical malpractice unless it is also proven that he has completed training that no specialist doctor has comparable ability if he had received the normal care required of a person of his qualification.
3. If the doctor accused of negligence defends his behavior by saying that he followed a common practice and that this was recognized by his colleagues of the same specialty and competence, he cannot escape his responsibility if the author of the defense proves this practice has inherent flaws that should be apparent to anyone delving deeply into the matter.
4. An honest difference of opinion between physicians as to which of the two ways of treating a patient is the better is no reason for the jury to question whether it was negligent to choose one way over the other.
5. It is not for a jury (or judge) to decide which of the two alternative treatments they (or they) think is preferable, their role is merely to decide whether the course of treatment has been followed according to the evidence , the diligent conduct of a physician of similar expertise and skill to that alleged by the defendant.
6. If there is a question of fact the determination of which is necessary to determine whether a particular medical practice is generally accepted and accepted for purposes of these principles, that question shall be subject to a jury trial. It is up to the jury to decide.”
Applying the first and second principles, which I believe work together, to the trial judge's findings of fact, I agree with his conclusion that the negligence case was not proven. “All the evidence is that the operation was performed correctly. Nothing was left out, nothing was done that should have been done, but it was cumbersome, had to be done under general anesthesia, and took an inordinate amount of time. . .” The author argued that these latest findings establish a negligence within the principles I quote; I reject this submission. What is described as clumsy or time-consuming is not a lack of care; in fact, it may well state the opposite. As regards the question of negligence, the application of the third principle remains to be examined, possibly adapted to the specific circumstances of the so-called elective operation.
All surgical procedures are in some sense elective, although choice may be implied by circumstances and not dictated as stated. The seriously injured, the seriously ill may be unconscious, but urgently need an operation. A patient's condition may be such that surgical intervention is required as the only hope of survival. This can be referred to as non-elective surgery. Given the choice between persistent pain and a limb replacement or fusion surgery, the patient can technically choose between pain and surgery, but the choice may be apparent rather than real. An extreme of elective surgery would be one that is purely cosmetic only to enhance the natural appearance rather than to correct the physical effects of an injury or illness. Due to the psychological reaction of the patient to the personal appearance, it can even lead to quasi-medical care. A similar argument can be put forward
regarding contraceptive surgery, male or female. This surgery has no direct impact on the patient's health or well-being or on prolonging life; it can alleviate marital stress or other domestic pressures and be therapeutic in that sense. Essentially, however, it is about improving the sex life of the couple in question. The risk of chronic orchialgia has been known and documented since 1979 at the latest; In 1983 there was a case in the clinic of the first defendant. It was still a minor elective surgical procedure.
The only case cited regarding patient choice is Daniels and Another v. Heskin [1954] I.R. 73 There, in the context of the present complaint, the alleged duty of the doctor to inform the patient that a foreign body remained in her body so that she or her husband could take the necessary measures was questioned. which they deem appropriate. Maguire C.J. maintained this argument and endorsed a decision of du Parcq J. in Gerber v. Pines 79 Sun. Jo. 13 and saying on p. 76-77:
“In this case no reason is given why the accused [the doctor] should be relieved of his apparent duty. There was no evidence that telling the patient what happened when it happened would result in serious consequences. Even if it turned out to be Mrs. Daniels, there's no reason your husband shouldn't have been informed. The fact that there was a choice between the two alternative routes above meant, in my view, that it was up to the defendant to at least inform the husband and leave it up to him to decide whether his wife should be informed and in any case let the patient and her husband to make the decision. The defendant would have clearly indicated that he would complete the suture and delay the operation to remove the broken needle by a few weeks. However, it was the prerogative of the patient and her husband to decide whether to accept or reject such advice if given.
This was a different verdict. Lavery J., at whose trial Murnaghan and O'Byrne JJ. all right, he said on p. 80:
“The doctor's duty to inform his patient about the treatment he is using and about incidents like the one he is investigating has been discussed at length in the argument. Of course, there are some things that a doctor should disclose so that his patient has the opportunity to decide whether to accept his point of view or to see another doctor and has the opportunity to choose between alternative paths. An example would be when a dangerous operation is contemplated.

On the other hand, there are questions that the doctor must decide for himself after accepting the responsibility for the treatment of his patient and considering his competence and expertise on which he relies. A clear example would be when an unexpected complication occurs during an operation.
. . . However, it goes without saying that the decision [not to inform the patient and her husband] was correct. For the purpose of investigating negligence or breach of duty, it would be for the plaintiff to establish that the decision concerned was inconsistent with the proper performance of the defendant's medical duties."
The force of these observations is somewhat weakened by the following paragraph, where Lavery J. said:
"Moreover, for the plaintiff to succeed in the action, even if it were to testify, the plaintiff would have to show that the damage that constitutes the content of the alleged action was caused by the omission. In fact, the needle was successfully used by Dr. O'Keeffe at the appointed time and the event justified the defendant's course of action. I can find no evidence that the non-disclosure harmed the plaintiffs."
Kingsmill Moore J. on p. 87 said:
“I cannot accept an abstract obligation to tell patients what is wrong with them, or in particular to say that they have left a needle in their tissue. It all depends on the circumstances: the patient's character, health, social status, intelligence, the type of tissue into which the needle is inserted, the possibility of subsequent infection, the arrangements for observation and further care. and numerous other considerations. In the present case the patient went through a postnatal period when the possibility of nervous or psychological changes is notorious; the needle was not located where immediate damage could be expected; Husband and wife were of a class and level of education which would cause them to exaggerate the seriousness of the act and suffer needless alarm; and arrangements were made to keep the patient under observation during the period when sepsis might occur and to X-ray the patient at a time when bruising and birth injuries should have resolved. If I had the opportunity to speak on a jury, I would say that the defendant's actions were correct. This question is not directly before this court. What we need to examine is whether it was so wrong to provide evidence of this in court
could reasonably conclude that the defendant has breached one of the duties I have already listed to his patient. In my opinion, there is no such evidence."
Statements made by Kingsmill Moore J. on issues such as the patient's social status or class and the level of education of the patient and her husband are difficult to understand as relevant criteria, however well intentioned these statements may be. The learned judge may have violated the very principle he was trying to defend.
In McMahon & Binchy, Irish Law of Torts (2nd ed.), p. 268 the authors deal with the disclosure obligation:
“What is the right test to decide whether the doctor has given the patient adequate instructions? Three main solutions have been proposed. The first solves the problem by referring to generally accepted practice in the medical profession. This approach, which is an application of the Bolam test ([1957] 1 W.L.R. 582), underscores the fact that deciding what to tell the patient has traditionally been viewed as a matter of medical judgment and discretion. The second solution, at the other end of the spectrum, focuses on the patient's right to choose what to do with their body. It requires full disclosure of all significant risks associated with the proposed treatment so that the patient, and not the doctor, makes the actual decision to continue treatment. . . The third approach lies between these two extremes. While leaning somewhat towards the former, he uses Bolam's test except when disclosure of a particular risk "was so obviously necessary for an informed decision by the patient that no reasonably prudent physician would dispense with it". . . 'Sidaway v. Governors of the Hospital Real de Belém [1985] v. 871 to 900".
Despite the division identified by the gentlemen. McMahon & Binchy, in a case like this, I believe the second and third solutions they propose are essentially the same. In deciding whether or not to have surgery related to sexual performance, it seems to me that providing the patient with the essential facts is so obviously necessary to an informed patient decision that no reasonably prudent physician would do so . can't reach. What is matter? Besides the success rate of the surgery, what could be more important than the sexual performance after the surgery and immediately afterwards? Whatever the temporary or persistent pain is or is

Discomfort, the only information the applicant and his wife gave about the value of sexual performance, which they valued so much, was in the short paragraph entitled 'Is this affecting your sex life? No risk, however small, had a duty to inform those who are so critically affected about this risk. The removed risk percentages lose meaning for those who are unfortunate enough to be 100% involved. In my opinion it is inevitable that the defendant knowingly breached his duty to the author and his wife by failing to identify the risk of impotence, whether functional due to pain and discomfort or mechanical due to some other cause.
It does not automatically follow from this that the patient would not have been operated on despite being informed about the risk. The author stated that he would not have undergone the procedure had he known; It was the case of the defendant who at least knew about the risk of chronic orchialgia. The trial judge accepted that Dr. Sheehy-Skeffington issued a warning of a possible complication, including a statement that some patients very rarely experience pain for several years after surgery for no known reason, even to say it can last indefinitely. The fact that the plaintiff's evidence in relation to the above was not accepted does not resolve the actual issue of the need to warn the plaintiff and his wife of the risk of sexual impotence. It follows, in my view, that the plaintiff asserted his right to damages. I would generally be content to make whatever assessment seems appropriate to the evidence; here the learned trial judge, who dismissed the claim for negligence but upheld it for personal injury, awarded damages for personal injury; it may be that the basis of calculation is the same, but i find it completely unsatisfactory that this basis of assessment remains and I am therefore determining a new judgment for non-pecuniary damage.
The defendants appealed the Supreme Court's decision that there was technical aggression and a violation of constitutional rights because plaintiff's participation by Dr. Kelly at the surgery. His judgment on this point was severely criticized by the defendants' lawyers; I think with some justification. The behavior of the plaintiff after the transaction is certainly open to criticism; indeed, many valid criticisms can be leveled at all of his conduct, including the early nature of the proceedings and the scope of the complaint. This does not mean, however, that there was no evidence from which the trial judge could correctly conclude that there was no consent. The plaintiff came to the clinic, he believed, to be operated on by people he thought competent, when in fact he wrongly thought that Dr. Sheehy-Skeffington would play no part in the operation itself. At a time when he was in a somewhat anxious state but ready for the operation, he presented himself to a third party; In my view, the trial judge was free to conclude that the author's consent was not validly obtained. Therefore, I would dismiss the complaint against the explanation of the technical attack. Violation of a constitutional right is a very serious matter, but acts of aggression must not be disguised as constitutionality. Defamation and usurpation of property can theoretically violate some of the guarantees of personality rights contained in Article 40 of the Constitution. However, it is the state which is bound by its laws to protect to the best of its ability from unjust attack and, in the event of an injustice committed, to defend the life, person, reputation and property rights of every citizen. Allegations of unfair attacks on such rights can be countered with the help of the constitutional guarantee; However, the guarantee should not be used to elevate the status of a minor cause of action. In my view, nominal damage is the true measure of a technical attack and I would put it down to a cent.
Consequently, it would dismiss defendants' appeal of the battery finding, allow defendants' appeal of the damage finding to the extent that the damage finding exceeds one cent, and allow plaintiff's subordinate appeal of negligence and remit the action to a finding of damage.

O’Flaherty J.

Dr Orr said she is a fellow of the Royal College of Surgeons and is specifically qualified in family planning and has completed a family planning course. She has been involved in family planning since 1979. dr Orr explained that Family Planning Services Ltd. is a registered non-profit association. She noted that she was not a "director" of the company's clinic, but was hired from time to time to perform surgeries at the company's clinic. She went on to describe the surgery that was performed on the plaintiff. The nurse had Mr Walsh in the bedroom and she introduced herself. The doctor. Orr asked if he was familiar with anything to do with Dr. Sheehy-Skeffington and if he wanted to ask her anything. Doctor Orr said he was happy with his decision to have a vasectomy. At that moment Dr. Kelly entered the room and said that she was Mr. Walsh and said, "This is Dr. Kelly who is helping me today." Mister. Walsh, according to Dr. Orr said nothing to that. He just said "Good morning". I have just started describing the operation performed, in which I made the opening on the right side of the scrotum and Dr. Kelly made the opening on the left side and from her point of view the operation went without incident and without problems. special difficulties. Physician Kelly gave testimony of his experience and stated that he had performed about twenty supervised vasectomies immediately prior to this. About three years earlier he had been involved in about forty vasectomies, twenty of which he had performed alone. Now he looked forward to boosting his confidence from the lapse of time since his vasectomy. He did not remember being at the clinic on May 3, 1984, and he did not remember the surgery. In fact, he couldn't recall anything unusual that happened in any of the vasectomy surgeries he attended.
Mister. Parsons stated that he was a consultant urological surgeon at the Royal Liverpool Hospital. He said the plaintiff's condition was orchialgia. He said it is an extremely rare condition that a practicing urologist may have experienced in some cases. He said he personally saw two and was aware of others post-vasectomy, and said the plaintiff described symptoms identical to these. He said the condition was notoriously difficult to treat and thought reversing the vasectomy seemed the only treatment likely to cure it.
The matter sat in court for seven days before MacKenzie J. Kelly in the operation, for which he was awarded £30,000 in general damages and £12,500 in special damages. It concluded that the defendants were not at fault. The defendants appealed the judge's decision that there was assault and the plaintiff appealed the decision that the defendants were not negligent.
The learned judge of first instance concluded that there was technical aggression and aggression because the author of the participation of Dr. Kelly at the surgery. Plaintiff's attorney attempted to confirm this finding of assault and assault on two grounds, viz. (i) as determined by the judge: that plaintiff Dr. Kelly at the surgery; and (ii) that the consent you gave to the surgery was not "informed consent" because the long-term consequences were not explained to you.
The judge found in fact that the operation was properly performed and that no serious effort was or could be made to change this appeal decision. The evidence was one-sided, that the fact of the vasectomy and not the way it was performed caused the plaintiff's problems.
The author argued that he agreed that Dr. Or just to perform the operation. But apparently he mistakenly thought that Dr. Sheehy-Skeffington could have performed the surgery as well, although she appears never to have had any such surgery. So the reality of the situation was that by the time the plaintiff consented to the surgery, the extent of Dr. Orr and the evidence showed no lack of competence on the part of Dr. Kelly: More like he needs more experience to improve his confidence. In my opinion, the actor accepted that the operation would be performed by one or more people with the necessary skills and knowledgeable. This is what happened in the circumstances of this case. While I accept the plaintiff's version of events, I believe that Dr. Kelly during the operation was under the supervision of Dr. Orr at all times and that his attendance did not cloud the approval he no doubt gave of the specific procedure he desired. . made.
Alternatively, under this heading it is claimed that since the author was not made aware of the potential risks of late effects and complications, his consent was not "informed consent" and therefore the operation performed constituted bodily harm against him. Assuming that this was the actual point of view for the purposes of this argument, although I will come back to this later, I think that such a failure to warn of possible future risks would not imply the artificial concept of robbery, but rather one possible breach of a duty of care giving rise to a claim for negligence. A claim for personal injury should be limited to cases where there is no consent for the specific process and where it is possible to obtain consent. This is the conclusion reached by the Supreme Court of Canada in the Reibl v. Hughes (1980) 114 D.L.R. (3d) 1. The facts of this case were briefly stated that the Claimant suffered a major stroke during or immediately after major but competently performed surgery, causing paralysis of the right side of the body and impotence. Stroke, paralysis or even death were among the risks of this operation or its consequences and the patient's refusal to undergo the operation. When answering the patient's question about the possibility of a stroke, the surgeon did not inform about the possibility of paralysis during or shortly after the operation, but emphasized that paralysis was more likely if the patient did not undergo surgery. The patient testified that he would have abstained from this elective surgery until he earned a life pension in a year and a half, choosing to live a shorter normal life rather than a longer life as a cripple. In other words, it was assumed that although without the surgery he was likely to have a stroke in the future (perhaps four or five years from now), the possibility of an immediate stroke after the surgery was not emphasized. The judge in this case ruled in favor of the plaintiff for both personal injury and negligence. The Supreme Court reversed the personal injury decision, but the negligence decision was upheld. In delivering the court verdict, Laskin C.J. said (on p. 10):
“The well-known statement by Cardozo J. in Schloendorff v. Society of New York Hospital (1914) 211 N.Y. 125 pages. 129-30: “Every adult and healthy person has the right to determine what is to be done with his own body; and a surgeon who performs an operation without his patient's consent commits an aggressive act for which he is liable for damages' cannot go beyond the scope of his words to maintain an aggressive act when there is consent to the same surgical operation performed at a patient, but there was a violation of the obligation to inform about accompanying risks. In my opinion, aggressive actions regarding surgery or other medical treatment should be limited to cases where surgery or treatment has been or is being performed without consent or where, except in emergency situations, surgery or treatment is or is being performed that is in excess of consent went out."
Laskin CL then cited cases where the surgery or treatment for which consent was given was misrepresented but a different surgical procedure or treatment was performed, going on to say:
"In situations where the allegation is that the concomitant risks revealed were not disclosed to the patient and the operation or other medical treatment was nevertheless performed with the perpetrator's consent (no fault as a basis for liability for the operation). or a recommended treatment to address the patient's condition), I do not understand how consent can be considered defective without disclosing that the surgery or other treatment is an unprivileged, non-consensual, and intentional intrusion into bodily integrity of the patient was. I can understand the temptation to say that the authenticity of consent to medical treatment depends on adequate disclosure of the risks involved, but in my opinion, provided there is no misrepresentation or fraud in obtaining consent for treatment, the consequent Failure to disclose the risks involved should amount to negligence, not aggression. Although such non-compliance relates to a conscious decision to undergo or refuse the recommended and appropriate treatment, it constitutes a breach of a prior duty of care comparable in its legal obligation to the duty of care in carrying out the particular treatment, to which the patient has consented to. It is not a test for the validity of consent.”

In my opinion, the trial judge was wrong in finding that there was aggression, technical or not, in this case. If, as he claimed, a technical attack took place, it should only result in nominal damage. This would limit the notion that a perpetrator can claim all damages resulting from an attack without having to show that they are foreseeable from intentional attacks.
The plaintiff appealed the trial judge's decision that negligence on the part of the defendants had not been proven. The judge said during his verdict:
“The negligence case has not been proven. All evidence is that the operation was performed correctly. Nothing was left out, nothing was done that should have been done, but it was clumsy, it should have been done under general anesthesia, and it took a disproportionate amount of time, and I think this created a strong resentment in the author's mind towards his treatment by the medical profession in general, and so most of your problems must be related to what happened in this room that day.
As for the missing notification, I think it was caused by Dr. Sheehy Skeffington. The question is whether it was enough. I think it was. The complainant should have known that this was a consequence of the operation, otherwise he would have followed the instructions in the circular to report immediately if anything unusual had happened to him. Why he didn't is a mystery."
Plaintiff's attorney alleges that the finding that the transaction was "clunky" is inconsistent with the finding that there was no negligence. The defendants replied that there was no evidence to support the conclusion that the operation was clumsily performed. It is noted that the plaintiff's expert did not agree that the operation was unduly delayed because, as he said, good vasectomists often took forty minutes to perform such an operation and there was certainly no evidence supporting this support assertion. check whether the operation should have been performed under general anesthesia; on the contrary, it has been proven that this operation was often performed under local anesthesia. There was no evidence of the coroner's criticism of the way the operation was performed. Even if they had any substance and if they proved negligence, which they are not, the plaintiff would only be entitled to compensation for the inconvenience suffered during the operation, nothing more.

Regarding the statement that the coroner said that Dr. Sheehy-Skeffington, plaintiff's attorney alleges that the coroner erred in law in finding that she had informed the plaintiff of the probable or possible consequences of the surgery. Applicant and considered that said warning was sufficient, especially given that it was an elective operation. The author presented the case as proof that he had not received a warning. your wife too. Dr. Sheehy-Skeffington has sworn he always gave that warning. The attorney argued that plaintiff's direct evidence, which should have been used to better recall the cases, was similar to that provided by Dr. Sheehy-Skeffington, who does not follow her actual interview with Mr. and Mrs. .walsch. However, she swore that she had always given that warning and that the learned trial judge had the right to act on that evidence. This is a primary finding of fact in which we as a court of appeal are generally not allowed to intervene. It is also correct to say that dents were made regarding the applicant's reversal, which the coroner would have to take into account. I leave aside the evidence that the author provided for small details about the condition of the room where the operation was performed and other issues related to the operation that are difficult to prove, but there were at least three things that were objectively proven were not correct:
(1)Dr. Sheehy-Skeffington cannot have said that she or Dr. Orr would perform the surgery as she had never done any surgery like this before. His role was that of an advisor.
(2) The author has sworn that Mr. Butler said he was tired of the clinic's troublesome cases, but Mr. Butler swore that not only did he not say that in front of a patient about a clinic, he had no intention of doing so to say to a patient. because he didn't have many problems with the defendants' clinic.
(3) The plaintiff spoke of writhing in pain during the operation. This was ruled out by medical evidence as impossible, and the coroner agreed with this conclusion.
Therefore, in my opinion, the judge of the lower court was able to rightly claim that a warning in the sense of Dr. Sheehy-Skeffington was handed over during her testimony. Having argued that notification was not given and proceeded with his case on that basis, the plaintiff cannot, I believe, alternatively argue that notification was insufficient. If the plaintiff's argument in court was that a warning, however given, was insufficient in the sense that the plaintiff was not made to fully realize what might be in store for him, I would think that in that case it would have been difficult to refute them. No permanent complications have been described in the literature; in contrast, the description of the operation in the literature he received was rather vague, to say the least; The doctor. Orr, who was in charge of conducting the operation, made no such notification, and the notification he received was at the bottom of a catalog of other matters handled by Dr. Sheehy Skeffington. I would have thought it prudent to put the possibility of long-lasting complications high on the agenda and should certainly be in the literature. It would certainly have left open the question of whether or not a warning was issued.
Mister. Keith Parsons, the defense expert, said that when counseling a patient before a vasectomy, he would not mention the risk of post-vasectomy orchialgia. That's because he thought it was so rare that it didn't need routine notification, although cross-examination indicated that Dr. Sheehy-Skeffington had said she had warned him, he seemed to agree. , was also awarded. with common and recognized practice.
I do not accept that the question of whether a warning should be issued in connection with a procedure like this, after the in Dunne (Infant) v. National Maternity Hospital [1989] I.R. 91 against common and best practice. Rather, I see it as the task of the trial judge to determine in the first instance whether the accused breached their duty of care towards a person like the plaintiff. Let it be settled according to the established principles of negligence. This was the approach of the Supreme Court of Canada in Reibl v. Hughes (1980) 114 D.L.R. (3D) 1.
I leave aside the requirements that may come into play in the event of an emergency or necessary surgery when dealing with issues of life and death and issues of possible emotional distress as set out by the court in Daniels and Another v. Heskin [1954] I.R. 73 and deals exclusively with the present case. I have no hesitation in saying that if it is an elective procedure, not essential to physical health or well-being, if there is a risk, however extraordinary or small, of serious consequences, including severe pain, over a significant period of time in the future and the possibility of subsequent operative proceedings, exercising due diligence on the part of the defendant requires that such possible consequences be explained to the plaintiff in the simplest language.

It must be said that this actor's catalog of unhappiness went beyond anything previously known; Your situation seems unique. The doctor could not have been expected to foresee the many catastrophes that befell the plaintiff. An operation he underwent went against his surgeon's recommendation. I believe the warning that Dr. Sheehy-Skeffington says giving was sufficient given the prevailing medical knowledge and experience. It must be said that Mr. Tanner said he gave it to his vasectomy patients. He said after dealing with the short-term after-effects of the surgery, he warned her about "the difficult complications of long-term pain, long-term pain that can occur and usually resolves after eighteen months."
I regret that I cannot help plaintiff's allegation if Dr. Sheehy-Skeffington claimed that if it had been given, he would have listened to her in the sense that he would not have had the surgery. For he must now be made to speak with the wisdom of forbearance, and of course no sane person, having gone through what plaintiff undoubtedly went through, would say he would go through it again. achieve with the operation. The author is bound by the primary factual finding of the lower courts, i.e. this notification was served on the appellant, and under these circumstances I am, in my opinion, excluded from participating in an examination as to whether the appellant would have acted accordingly in view of its complete contradiction if it had been given stronger notification It was not warned.
It would allow the defendants' appeal and dismiss the plaintiff's subsidiary appeal.

Geoghegan vs. Harris

[2000] IEHC 129; [2000] 3 IR 536 KearnsJ.

1. The author in this case is a married businessman living in County Kildare. He was born on November 27th, 1944.

2. He is suing the defendant for allegedly performing a negligent dental implant procedure on July 1, 1992. Plaintiff suffered damage as a result of a bone graft removed from his chin during the proceedings. of the incisor nerve at the front of the chin, causing him severe pain in the midline of the chin from the moment of the procedure, known as chronic neuropathic pain. This aspect of the procedure, ie the bone grafting, and not the placement of the dental implants themselves, is responsible for the plaintiff's symptoms.

3. The plaintiff also sued the defendant for failing to educate her about the risk of chronic neuropathic pain that could result from the surgery prior to the surgery. Incidentally, this was his first complaint against the accused.

4. The hearing before this court lasted about twenty days, mainly because of the high technical level of the evidence. Two days were dedicated to legal lectures on the declaration of consent/obligation to disclose. With a view to shortening the proceedings and in order to comply with the requirement newly issued by the Federal Court of Justice that allegations regarding facts must also be made at the end of the main hearing, the parties were asked to make such allegations in writing and they are to be submitted to the court before the pronouncement of this part received the verdict.

5. Due to the complex and technical nature of the evidence, the parties agreed that the court should be free to render its judgment in successive parts. Any question of value that may arise has been contractually postponed to a later date. The first part of the judgment relates to the allegation that the Respondent failed to disclose a significant risk.

6. The second part of the judgment, which does not overlap with the first, deals with the central question of fact on which the allegation of negligence is raised: Dr. Harris, during the removal of a bone graft from plaintiff's chin on July 1, 1992, the bone graft taken from a location on the chin very near the crests of plaintiff's mandibular front teeth? The evidence in this case clearly demonstrates that it is common and accepted practice in the medical profession that a zone of 5mm must be maintained between the tips of the teeth and the top of a bone graft. Therefore, the crucial question of fact to be resolved is whether Dr. Harris may or may not have crossed that barrier. The doctor. Harris denies this. The court must not only Dr. Harris, but rather the entire later history of the lower incisors, a detailed anatomical study of the chin and its nervous system, and the meaning and interpretation of a series of radiographs taken after a particular procedure. Just the evidence in relation to the X-rays took many days of listening and is highly complex. Part of the difficulty comes from the defendant and his experts questioning the reliability of X-rays, including Dr. Harris when it comes to accurately measuring the distance between two objects or landmarks, since x-rays are two-dimensional representations of three-dimensional reality.

7. I therefore intend to deal separately with the facts on which the negligence claim is based and, if necessary, also separately with the legal consequences of ascertaining the facts (if any). ) that Dr. Harris violated the 5mm barrier while receiving the bone graft on July 1, 1992.

Duty of Disclosure/Declaration of Consent
52. The duty of a physician performing or ordering an operation to inform the patient of the possible harmful consequences of the operation has been addressed by the Supreme Court in Walsh-v-Family Planning Services Limited & Ors., (1992) 1 IR 496.

53. The immediate question for the Court to decide on the warning was, first, whether a warning had been issued and, second, whether the warning was sufficient. The majority of the court held that on appeal it would not change the trial judge's finding that a warning had been issued and was sufficient.

54. The members of the Court who formed the majority and delivered judgments (Finlay CJ and O'Flaherty J) based their conclusions on different legal principles. I think it's fair to say that the contrasting approaches have caused some significant difficulties for commentators, judges, and scholars alike for this reason. On the one hand, Finlay CJ applied the principles and evidence set out in Dunne (an Infant) -v- National Maternity Hospital, (1989) IR 91 as a guide to the appropriate standard of care.

55. Put simply, this test is intended to determine whether the medical profession in general, or any respected school of opinion, would find a caveat in it necessary, except that common and accepted practice may contain inherent flaws which should be apparent to anyone giving due attention to the matter. If the latter position were maintained, the fact that a doctor pursues the practice of general medicine would not be sufficient to absolve him from liability.

56. O'Flaherty J., with whom Hederman J. agreed, took a different approach from the Chief Justice and did not accept that the issue of issuing a warning in connection with a particular proceeding should be decided under the criteria set out in Dunne in relation to common and accepted practice. He explained:-

“Rather, I believe it is for the judge to determine whether there has been a breach of the defendant's duty of care to a person like the plaintiff. Let it be settled according to the established principles of negligence. This was the approach of the Supreme Court of Canada in Reibl-v-Hughes, (1980) 114 DLR (3D) 1.”

57. At the other end of the spectrum, this approach focuses on the patient's right to choose what should be done with his or her body. It requires full disclosure of all the significant risks associated with the proposed treatment, so that the informed patient, and not the doctor, can make the effective decision on whether to go ahead with the treatment or not.

In John White's "Medical Malpractice Actions" the author states on p. 190:-

"It is not unfair to note that the Walsh case is intriguing both in terms of the alternative decision standards adopted by its judges and in the application of those decision standards to the facts of this case."

58. Referring to Finlay, C.J. Mister. White States (on page 189):-

“The fact is that if the principles of negligence liability relating to negligence in diagnosis and treatment were applied mutatis mutandis to the disclosure of risks of undesirable consequences associated with the proposed treatment, the result would be that the standard of disclosure would be restricted to the requirements conform to "accepted common practice" within the medical profession or a respected school of opinion within that profession, except that the defense of accepted common practice may be dismissed if the applicant can demonstrate that "such practice has inherent deficiencies which should be obvious to any person giving the matter due attention". But what could this warning mean in the non-technical context of what a person has a right to know about the risks of undesirable consequences associated with the proposed treatment? Moreover, how can this right be satisfied with a standard based on the normal practice of the medical profession, with the exceptional opportunity for the applicant to demonstrate that the standard of the profession is not acceptable? And while the Chief Justice has also been willing to tear down the standards of the profession related to non-disclosure of the risks of adverse consequences, the result of such a course is to work Canterbury Doctrine policy within the confines of a primary-standard profession judgement, applicable to diagnosis and treatment which is manifestly unacceptable”.

Canterbury-v-Spence (150 US App D.C. 263), followed up in Reibl-v-Hughes, argued that, as a general principle, the patient has the right to know all the material risks involved in any form of treatment are suggested treatments. Treatment in the exercise of the person's right to self-determination.
59. The concept of materiality can be viewed as encompassing (a) the severity of the consequences and (b) the statistical frequency of the specific risk. As said in Canterbury (p. 788):-

“A very small risk of death or severe disability may very well be significant; a possible disability that drastically outweighs the potential benefit of the therapy or the disadvantage of an existing illness can provoke a confrontation with the patient. There is no clear line separating the significant from the insignificant; the answer must always obey a rule of reason”.

60. Regarding the question to be asked by the Court in the present case, the analysis of the judgments gives the same answers as the application of the different principles leads to two critical questions, namely: to say: -

(a) A physician's requirement is to indicate material hazards that are a "known complication" of a properly performed surgical procedure.
(b) The test of relevance for elective surgery is to ask only whether there is a risk, however extraordinary or remote, of serious sequelae involving severe pain extending for an appreciable period in the future.

61. The five Supreme Court Justices unequivocally agreed in the Walsh judgment that in elective surgery any risk implying the possibility of serious consequences for the patient must be disclosed. The requirement is placed on the various sentences with no restriction in terms of statistical frequency. In fact, this consideration is strictly ruled out.

62. At no point during his trial did Finlay C.J. those of O'Flaherty J on p. 535:-

"I do not hesitate to point out that in the event of an elective surgery, which is not essential for health or physical well-being, there is a risk, however extraordinary or remote, that serious consequences with severe pain and a considerable duration in the future and with the possibility of future operational proceedings, exercise of due diligence by the defendants requires that such possible consequences be explained to the plaintiff in the simplest language".

63. McCarthy, J. and Egan J. expressed similar views.

64.Finlay C.J. In his judgment on p. 510:-

"I am convinced that there is of course a clear obligation on the part of the doctor who performs or organizes an operation to inform the patient, wherever possible, about the possible harmful consequences of the operation. to enable the patient to give informed consent to the operation in question. I also believe that the scope of this obligation should, as a matter of common sense, vary according to what might be termed the elective nature of the operation in question. Of course, with the exception of emergency operations on unconscious persons who are capable of consent or refusal, or on small children, there can also be cases in which, according to medical knowledge, a specific surgical intervention is so necessary to save the life or health of the patient, despite considerable risks of harmful consequences received, and the consequences of failure to do so are so clearly detrimental that limited discussion or warning of possible side effects may be pernicious and appropriate The detrimental consequences of a surgical procedure, which might be said to be at the other end of the scale, in that it elective, as a vasectomy would undoubtedly be, can be more severe and costly.”

65. He continued on p. 511:-

"On the evidence of the case, Dr. Sheehy Skeffington was, at that moment, one of thousands of vasectomy surgeries performed by the original defendant, the one who produced such a complication (pain, it is said, lasting a few years after the surgery). Despite medical evidence to the contrary from some of the witnesses who were summoned, I believe there was an obligation on that doctor to inform the author of this possible consequence. (Added words in brackets and emphasis.)

66. In fact, Finlay C.J. He came to the same conclusion as his colleague, albeit on a different principle. While some of the witnesses named Walsh felt that a warning was not necessary, Finlay told C.J. clearly believed that Dunne's inherent deficiency exemption could be invoked in the circumstances of the case, so there is a requirement to issue a risk warning remotely. with serious consequences.

67. It is important to emphasize how Finlay C.J. did that the obligation extends to "known complications" of a "carefully performed operation", the obligation must be clearly limited to such consequences or to such consequences which are to be classified as foreseeable or foreseeable consequences of such complications. For example, purely incidental and extraneous risks might not fall within the scope of an obligation, except for the consequences that might result from the professional accountant's negligence.

Bolton -v- The Blackrock Clinic & Ors., (unnotified Supreme Court decision, January 23, 1997) did not intend to change or amend the requirement for the type of warning required in elective surgeries.
68. Hamilton CJ on p. 13 said: -

“The operation of 4 March 1988 envisaged in this case, i.e. the sleeve resection operation, was in fact an elective operation in the sense that it was up to the applicant to undergo such an operation and to choose or refuse consent to it.

Prior to obtaining such consent, Mr. Wood had a clear obligation to (i) verify the necessity of the transaction, (ii) explain to the complainant the necessity of the transaction and the consequences of not going through with the transaction, (iii) comply with Art of the transaction and (iv) inform the complainant of any possible harmful consequences of the operation.” (emphasis added)

69. Therefore, the questions which the Court must deal with in the present case are the following:

(1) Is chronic neuropathic pain a known or predictable consequence of placing a mandibular premolar implant or harvesting a bone graft from a patient's chin?
(2) If so, is there a need for a warning regardless of the risk distance and medical expert opinion if a warning is not required?
(3) If the plaintiff had received a proper warning, would it still be highly likely that he would have submitted to the procedure?
(4) As far as the plaintiff against Dr. Harris that he said there would be "no pain, no pain" involved in the proceedings, he is barred from bringing a negligence case for breach of disclosure requirements if the court finds that the defendant failed to make such a statement has?
(5) Was the applicant in the category of an "inquisitive patient" who owed a special duty?

(1) Was neuropathic pain a known complication?
70. On behalf of the Respondent, it is stated that the Appellant's chronic pain is a one-off event, not just a rare occurrence. None of the medical experts who testified on either side had ever seen any of their patients develop such a symptom at that location, nor were they aware of a single case of such a phenomenon recorded in the medical records. Literature.

71. It has further been argued that the jaw and teeth are commonly and frequently the sites of the most radical and invasive surgical procedures performed by oral and maxillofacial surgeons, which inevitably result in severe damage to the incisive plexus of nerves and other nerves, and yet, even in these cases, not a single case of chronic neuropathic pain has been reported or experienced.

72. Mr. Cooney quoted Jones Medical Negligence (2nd ed. 1996) at p. 121 the following passage regarding "unforeseen damages" as follows:-

"It is a given within the concept of negligence that the defendant has not acted negligently where a particular hazard could not reasonably have been foreseen because a reasonable man fails to take precautions against unforeseen consequences. This is based on what was known at the time of the alleged negligence, not retrospectively.

73. Be that as it may, the medical evidence in this case, including the defendants' experts, is completely one-sided with regard to the phenomenon of nerve damage.

74.Dr. Sambach, Dr. Hutchison, the neurologists, Mr. Beirne, the oral surgeon, and Professor Van Steenberghe, professor at the Faculty of Dentistry at Louvain, all agree that any traumatized nerve may exhibit one or the other of the following characteristics:

(a) Numbness or reduced feeling
(b) Altered sensation
(c) Very occasionally intractable neuropathic pain.
75. The mechanism of severe pain is a distorted message sent to the brain due to damage or incomplete scarring or repair of the nerve in question.

76. However, none of the experts consulted by either party in this case considered then or now that a warning about intractable neuropathic pain was or is necessary given the low risk. It's one of several thousand. However, several experts have mentioned cases where nerve damage with permanent consequences has occurred in the facial area, which has a sensitive nervous system. The infraorbital zygomatic nerve is one such site where chronic neuropathic pain can occasionally occur when this nerve is damaged. It is also known that, on rare occasions, removing a wisdom tooth can produce a similar result if the alveolar nerve is damaged.

77. dr. Beirne, one of the defendant's specialists, also mentioned a case he was aware of in which four lower wisdom teeth remained non-vital as a result of a bone transplant in which the surgeon was upset. 5 mm zone between the tips of the teeth and the bone graft site, which requires general and recognized practice.

78. The extremely rare occurrence of chronic neuropathic pain as a result of nerve damage is contrasted with the other two possible consequences in (a) and (b), which are more frequently encountered, albeit usually only as temporary symptoms.

79. Is there evidence that Mr. Hutchison in this case that the trigeminal nerve, which supplies innervation to various parts of the skull and face, is particularly sensitive. The alveolar nerve is an exit that descends the lower jaw and bifurcates in the premolar region of the mouth to form the mental nerve, which emerges from the bone and provides sensation to the lip and soft tissues in the vestibule between the lower teeth and lower lip. , and the incisal nerve, which supplies the bone and teeth in front of the mandible. (See attachments).

80. It is quite clear that the procedure that Dr. Harris, which was originally suggested to perform, could compromise one or both nerves due to their location in the chin region. The doctor. Harris stated (B.9.p.151) that it was not possible to insert implants "without damaging the incisor nerves". The same opinion was expressed in relation to bone grafting (B.9.p.154/5). The letter from Dr. Harris to Mr. Geoghegan shows an awareness of the possibility of nerve damage in his references to the risk of chin and lip numbness. That was and could only be nerve damage. dr even Harris mentioned instances where damage to the mental nerve caused "persistent pain." (B.9.p.122)

81. Since the procedure by which Dr. Harris underwent a relatively new procedure, I am not at all surprised that there are no other reported cases of chronic neuropathic pain associated with implants or bone grafts. in the specific area of ​​the chin. The case dates back to 1982. Grafts (required in a few cases) were taken from the iliac crest for several years and only from the chin starting in 1989. Apparently there was a short-lived recoverable file in 1992 and obviously that file, to the extent that it exists, must relate to cases where the procedure, including bone grafting, was performed in accordance with the standards and approved guidelines and procedures.

82. It seems to me that nerve damage should be considered a 'known complication' of this procedure, whether actual implants or bone grafts in the chin area. The particular symptom of neuropathic pain is a subdivision, not a different type of risk or an unrelated risk. It is predictable as a result of nerve damage and certainly the nerves to which this case relates. However, from a legal point of view, it seems irrelevant to me that the particular manifestation of nerve damage is very rare and unusual. It is within the realm of what the physician knows or can know or should know. For example, if it is well known that on rare occasions a lump of coal can explode during grate combustion, it can hardly be said that such a "known complication" does not exist with coal recovered from a new mine when such an event occurs in has not occurred for a relatively short time since the mine opened. It will always remain a known possibility of a generic type.

(2) Warning obligation.
83. Although the quantum issue has been deferred to a later stage of this hearing, both the medical evidence I have heard in connection with liability and Plaintiff's own evidence convince me that Plaintiff has presented an extremely painful and hitherto stubborn version of this Nerve has damage. . He has a burning sensation in the midline of his chin that spreads down both sides of his jaw towards his ears throughout the day. The condition is aggravated by speaking. He is often forced to drink ice water and crushed ice to relieve his symptoms. Sometimes he drinks a lot of gin at night to ease the pain. He's scoured the world in search of a cure, so far to no avail.

84. To date, none of the physicians has challenged the authenticity of the Claimant's condition, which the Claimant said was devastating to his life.

85. The plaintiff himself, on the witness stand, was excited and emotional as he described his difficulties and understandably somewhat obsessed with his condition. This is not a criticism of Mr. Geoghegan, whom I consider a decent and honorable person, but rather a person who has lost objectivity due to his persistent symptoms. Her condition merits description as severe, although it falls well under the category, which may include conditions such as paralysis, loss of a limb, or reproductive function. Therefore, the requirements of Walsh -v- Family Planning Services Limited are met in the present case.

86. Although the opinions of the medical experts were all that no warning of the remote risk of neuropathic pain was necessary, the decision at Walsh should nevertheless be binding on me. Consequently, I maintain that there was an obligation to notify.

Is the Reasonable Patient test the preferred option?
87. The principles of law applicable in cases of alleged medical malpractice were established by the Supreme Court decision in Dunne (Infant) -v- National Maternity Hospital [1989] IR 91. In the Dunne case, Finlay C.J. on page 109 of the report:-

"1. The true evidence of negligence in diagnosis or treatment by a physician is whether he has been found guilty of an omission which a physician of equal specialty or general status and ability would not be guilty of if he had acted with ordinary care .
2. If the allegation of medical malpractice against a doctor is based on proof that he deviated from general and recognized practice, this does not justify medical malpractice unless it is also proven that he has completed training that no specialist doctor has comparable ability if he had received the normal care required of a person of his qualification.
3. If the doctor accused of negligence defends his behavior by saying that he followed a common practice and that this was recognized by his colleagues of the same specialty and competence, he cannot escape his responsibility if the author shows in return that a Such practice has inherent flaws that should be apparent to anyone who studies the matter closely.
4. An honest difference of opinion between physicians as to which of the two ways of treating a patient is the better is no reason for the jury to question whether it was negligent to choose one way over the other.
5. It is not for a jury (or judge) to decide which of the two alternative courses of treatment they (or they) think is preferable, but their (or their) role is simply to decide whether the course of treatment is followed , consistent with the evidence, he performed the diligent conduct of a physician of similar expertise and skill to that alleged by the defendant.
6. If there is a question of fact the determination of which is necessary to determine whether a particular medical practice is generally accepted and accepted for purposes of these principles, that question shall be subject to a jury trial. It is up to the jury to decide.”

88. Applying Dunne's third principle to the disclosure requirements discussed in Walsh, Finlay C.J. called the exception as follows (p. 511):-

"It may be, certainly in relation to a clearly elective operation, that the court might more easily conclude that the scope of the warning given or omitted contained inherent flaws that would have been apparent to anyone who had given due consideration to the matter must . what you can do in complicated medical or surgical procedures.”
89. It is with considerable distrust I dare say that this statement really only underscores the unreality of linking or contrasting reporting requirements with complicated medical treatment, which is a separate and entirely different function.

90. Apart from the fact that a lower threshold might suffice for the Court to act, the criteria for this are not further developed. The ease or inadequacy of the court's task is not a suitable indicator for intervention.

91. If the occupational medical standard is accepted with reservations or reservations, then, to me at least, there is little point in excluding physicians' own views as to the materiality of a risk or the need for it to matter. a hint. Your views are welcome and trusted in common medical malpractice cases. Who else can provide evidence of inherent defects? In order to use its own report effectively against the experts on whose reports it intends to rely, at least in the first instance, the court overturns the professional standards test, and the result in the present case is that the defendant must be considered in breach of duty if not an expert deems a warning necessary on both sides.

92. The Court has this authority because, as Mr. John Healy points out in his scholar Medical Negligence: Common Law Perspectives (1999), p. 71:

"... The courts have recognized the institutional reality that they retain at least a residual power to overrule expert testimony, even when that opinion unanimously supports the defendant's allegations. Irish courts, which are far more pragmatic in this regard, have recognized this time and time again.

93. However, the author continues:

“A principle of this kind is nothing more than an affirmation of a power which the courts already have, indeed a power which the courts are constitutionally bound to exercise. In this context, the principle serves to remind the medical community that the rule of law ultimately applies to doctors as well as to lawyers or engineers, and that in both cases courts have the right to arrest an accused who conforms to common practice was blind, negligent or negligent by nature". (my emphasis)

94. This passage suggests that there must be very good reasons for the Court to do so. That these are the criteria for the application of the rescuer is evident from the Supreme Court decision in Roche-v-Peilow (1986) ILRM 189, in which the court found that a professional practice contract (for which solicitors did not conduct preliminary research) constitutes a sale ) when advising buyers in relation to the purchase of dwellings covered by a build-and-lease contract system) contained such inherent flaws which should have been apparent to anyone looking closely at the matter.

95. On p. 197, Henchy, J. confirmed.

"Following the generally accepted practice of their peers will usually refute an allegation of negligence against a practitioner because the level of care which is legally required of them is no greater than that which is required of a reasonably reasonable member of the profession or specialty concerned becomes. But there is one important exception to this rule of conduct. Walsh J. has it in O'Donovan-v-Cork County Council [1967] IR 173, at p. 193:

“If there is a common practice which has inherent flaws which must be noticed by anyone who properly analyzes the matter, the fact that it has become widespread and generally accepted over time does not make the practice any less negligent. A breach of duty does not expire through repetition.

The reason for this exception is that the duty imposed by law is based on the standard expected of a reasonably caring professional and a person cannot be said to be acting reasonably by automatically and thoughtlessly following the practice of others , if she thinks about it, he would have realized that the practice in question was fraught with dangers for his client and easily avoidable or remediable.” (my emphasis)

96. On pg. 204, McCarthy, J. explained

“The possibility of a charge being brought against the property on which the developer wished to build a house, using the money of the 'benefactors' for that purpose, was a clear and present danger; (emphasis mine) it was the lawyers' duty to guard against it."

97. Elsewhere, Walsh, J. said on p. 193

"The evidence presented by the attorneys, including the defendants in this case, shows that they were well aware of this particular risk."

e (S. 195)

"It cannot be said that the consequences of the occurrence of the risk are unpredictable when the evidence in this case indicates that the risk was known and the consequences, should it occur, were obvious."

Roche -v- Peilow strongly suggests that the exception should only apply where a high level of responsibility is being met and the deficiency, ignored or tolerated by the authorized practice of a profession, involves an obvious risk or danger, what stands in stark contrast to the present. Case. The exception is there to fill an apparent gap in professional practice that often arises from a residual clinging to outdated ideas. It seems inappropriate to criticize doctors for not warning of very distant risks which, even after due consideration, cannot be considered with the same quality as obvious or "clear and present dangers". All the more reason to believe that Dunne's third principle, while appropriate for medical treatment, might be inappropriate in the vastly different context of disclosure. It must certainly be concluded that the lower the risk, the more difficult it is to judge any confidentiality practice as "blind, negligent or inherently negligent". Surgery, but this consideration, discussed below, is more appropriate to the issue of causality than any disclosure requirement, where severity of consequences and frequency of risk are at issue.
98. The use of the appropriate patient test seems more logical in terms of disclosure. This would justify the statement that, in principle, the patient has a right to information and the physician has an obligation to report any significant risks associated with a proposed form of treatment. What is material is ultimately for the court to decide. "Relevance" includes consideration of (a) the severity of the consequences and (b) the statistical frequency of the risk. Both are critical because a risk can have serious consequences and yet be historically or predictably so rare that many people do not consider it significant. For example, a tourist might be discouraged from visiting a country where there was an earthquake that claimed lives, but when told that the event happened fifty years ago and hasn't happened since, he might wonder, why his travel agent travels worried him. .needless to mention at all.

99. The reasonable person, entitled to full information about material risks, does not have impossible expectations and does not seek to impose impossible standards. He doesn't just invoke the wisdom of hindsight when things go wrong. It must be taken into account that you need physicians who must fulfill your medical expertise without undue limitations or serious limitations on their ability.

100. In fact, the Walsh decision limits the relevance test only to the seriousness of the consequences. This approach is best summed up in the memorable passage from McCarthy, J., when he said (on page 521):

“…stakeholders…when they become aware of such a risk, however small, they have a duty to inform those who are so critically concerned about that risk. Long-distance risk percentages lost their meaning for those unfortunate enough to be 100% involved.

101. However, the attractiveness of the observation should not preclude the possibility that a risk is sometimes so remote, at least in terms of the most serious consequences, that a reasonable person would not consider it to be substantial or significant. Although cases are few, they suggest that in all cases absolute disclosure is overly onerous and potentially counterproductive if it unnecessarily discourages patients from undergoing surgeries that are convenient for them.

102. As Mr. Healy remarked (p. 99), "Materiality is not a static concept." If the materiality assessment is to “obey a rule of reason”, any absolute requirement that disregards frequency seems very contrary to that rule.

103. It seems to me that each case must be considered in the light of its own particular facts, evidence and circumstances in order to determine whether a reasonable patient in the plaintiff's position would require a particular risk warning.

104. Evidence that a warning should have been given but was not given is not sufficient to entitle the plaintiff to claim damages. You must also prove that you would have withdrawn from the proceedings had you been given a proper warning.

105. Probably out of a finding that a warning, a reasonable warning, had been issued in Walsh-v-Family Planning Services, the Court did not consider in detail the question of causality as an element of disclosure.

106.Finlay C.J. he concluded his discussion of negligent termination by stating on p. 512:-

"For this reason, I conclude that notwithstanding any issues, the Applicant has denied having issued such a warning and is therefore unable to offer any other than a hypothetical opinion as to what he would have done." if it had been granted, the resignation accepted by the Learned Judge of the First Degree, given by Dr. On that occasion, Sheehy-Skeffington was, in fact, sufficient to discharge her responsibility to exercise due diligence.”

107. Judge McCarthy stated on p. 521:-

“It does not automatically follow from this that the patient would not have been operated on despite being informed about the risk. The Claimant stated that if he had known, he would not have submitted to the follows, I believe, that the Claimant has established his right to compensation."

108. Egan J. explained on p. 537:-

“The plaintiff denied receiving a warning from Dr. Sheehy-Skeffington, but his evidence in this regard has been dismissed. However, I cannot accept the contention that their wrongful denial prevents the court from considering whether the plaintiff received an adequate warning. Nor do I feel it necessary for the author to prove that had he been warned he would not have undergone the original surgery. If, in fact, you never received adequate notice, your answer to a question as to how it would have affected your hiring would necessarily be hypothetical and the court would be entitled to its conclusion unless, by some improbable coincidence, it was negative. Conclusion that failure to provide advice was negligent and punishable by law”.

109. Egan J.'s views on this point appear to conflict with established legal principles of causality, and the applicant accepts in the present case that causality is a matter for the court. It may not be as simple a problem as McCarthy J. suggested. It is all too easy for a disappointed patient to say after an operation, as Mr. Geoghegan did, who would not have had the operation if he had been warned of the risk of what is happening. There can be many instances where the only evidence available to a court is that of the patient and/or their spouse, either or both of whom may be harmed by the bitterness and wisdom of hindsight. It is a highly unsatisfactory scenario for the task facing the Court in these cases.

110. When Mr. White states on p. 193 of "Actions for Medical Negligence":-

"In short, the complaining patient would hardly have pleaded for secrecy if he had not been willing to swear without contradiction that he would have discontinued therapy had he been properly informed of its consequences."

111. These concerns led to the United States Court of Appeals for the District of Columbia in Canterbury-v-Spence, (1972) 464 F 2D 772 and the Supreme Court of Canada in Reibl-v-Hughes, (1980) 114 DLR ( 3D )1 to require that the question of causality be determined objectively, i. H. in order to establish causality, the applicant must demonstrate that adequate disclosure would have caused a reasonable person in the applicant's position to reject the claim treatment in question based on disclosure of the risks involved. This is in contrast to a subjective test, where the court seeks to determine what the specific plaintiff would have decided in the specific case if he had been properly informed.

112. Robinson J., in delivering the judgment of the Court of Canterbury - v - Spence, explained the preference for objective evidence at p. fifteen:

“A violation of the doctor’s duty to provide information justifies the patient’s liability, just like the violation of any other legal obligation. An unreported risk that should have been disclosed must materialize or the failure, unforgivable as it may be, has no legal consequences. The occurrence of the risk must be harmful to the patient, since non-injury-related negligence is not punishable. And, as with malpractice lawsuits generally, there must be a causal relationship between the physician's failure to make adequate disclosure and harm to the patient.

A causal link exists if, but only if, disclosure of significant treatment-related risks would lead to a decision to the contrary. The patient obviously doesn't complain when he's already through therapy, even though he knows that the risk was one of his dangers. On the other hand, the actual purpose of the obligation to provide information is to protect the patient from consequences which, if he had known, he would have avoided by forgoing treatment. More difficult is the question of whether the factual question of causality requires an objective or subjective determination.

The issue is considered resolved when the investigator believes the patient's statement that had he known of the danger, which later turned into injury, he would not have consented to the treatment. A technique that simply combines a factual conclusion of causality with an assessment of the patient's credibility is unsatisfactory. Undoubtedly, the purpose of risk education is to maintain the patient's interest in making an intelligent self-choice of the proposed treatment, a question which the patient is free to decide on whatever grounds he or she wants. If the patient is sufficiently informed about the risks and the exercises of his choice before starting therapy, it can be said with certainty that he has done exactly what he wanted to do. But when causality is examined in a post-traumatic study with a supposedly uninformed patient, the question of whether he really would have refused treatment if he had known the risks is purely hypothetical: "seen from the point where you had to decide what would the patient have decided differently if he knew something he didn't know? And the answer the patient gives is little more than a guess, perhaps colored by the circumstances in which the unreported hazard actually occurred.
From our point of view, this question of dealing with questions of causality comes second. In hindsight, this endangers the doctor and the patient's bitterness. It enables the investigator to decide whether to believe a speculative answer to a hypothetical question. This requires a subjective determination based solely on the testimony of a patient witness who was obscured by the occurrence of the risk that was not reported.

We believe that the issue of causality is best resolved objectively: in terms of what a prudent person in the patient's position would have decided if they had been properly informed of any significant hazards. If reasonable disclosure could reasonably be expected to have resulted in that person refusing treatment as a result of disclosure of the nature of the risk or hazard that resulted in harm, then causality is established; otherwise, it is not. Patient statements are of course relevant in this regard, but they would not overwhelm the findings. And since such statements would likely be evaluated consistently with the investigator's belief in their plausibility, the case for a fully objective standard for communicating causality is strengthened. In any case, such a standard would facilitate the investigative process and better guarantee the truth as its product.”

In Reibl -v-Hughes, Laskin CJC, in pronouncing judgment of the Supreme Court of Canada, defined the objective criterion of causality:

"An alternative to subjective testing is objective, that is, what a reasonable person in the patient's position would have done if the inherent risks had been adequately disclosed."

113. Regarding the subjective test, he commented on p. fifteen:-

“The patient he was suing could hardly be expected to admit that he would have consented to surgery, knowing all the risks involved. Your complaint would state that, having suffered a serious disability as a result of the procedure, you are satisfied that you would not have allowed it had there been adequate risk education versus the risks of refusing the procedure. However, applying a subjective causality test would reward hindsight appropriately, even more than medical evidence would, if causality were assessed against an objective standard.”

on P. 16 said: -

“Adopting an objective standard does not mean that the issue of causality is entirely in the hands of the surgeon. The mere fact that medical evidence supports the reasonableness of a recommended operation does not mean that a reasonable person in the patient's position would necessarily consent to it if adequate information about the risks involved, weighted against the opponents, had been given. The patient's particular situation and the extent to which the risks of surgery or non-surgery are weighed would reduce the strength of the surgeon's recommendation in an objective assessment. It is certain that if the risk of not having the operation for a patient were significantly more serious than the risks involved, the objective norm would favor the dismissal of the surgeon who did not make the proper declaration. Since liability rests solely on negligence, failure to disclose material risks, the question of causation would be in the hands of the patient on subjective examination and, if his evidence were accepted, would necessarily give rise to liability, unless, of course, it was found, of course, that there is no breach of the duty to provide information. In my opinion, therefore, the objective standard is preferable when it comes to causality.

When I say that the test is based on the decision that a reasonable person in the patient's position would have made, I must make it clear that the patient's particular concerns must also be justified, otherwise there would be more subjectivity than is necessary. objective test. For example, concerns that do not relate to material risks that should be disclosed but have not been disclosed would not be causal factors. However, economic considerations may reasonably lead to causality, for example if the loss of an eye as a result of non-disclosure of a material risk leads to the loss of a job that requires good eyesight. In summary, it can be said that although the special situation of a patient must be taken into account, a patient-specific situation must be objectively assessed with regard to its reasonableness.
114. However, the subjective approach was used in Australia in Ellis -v- Wallsend District Hospital [1989] 17 NSWLR 553 and in two other Australian cases, Bustos -v- Hair Transplant Pty Limited & Anor (decision not reported, New South Wales Court of appeal of April 15, 1997) and O'Brien-v-Wheeler (New South Wales, unreported judgment of May 23, 1997).

At Ellis-v-Wallsend District Hospital, Samuels J.A. his decision for the subjective test as follows:

"The subjective test was regarded in Reibl (to which Canterbury was applied) as 'hypothetical and therefore unreliable' and, as Laskin C.J.C. remarked (on page 16), calculated to "put a premium on hindsight, even more so than anyone medical would provide clues to assess the cause on the basis of an objective standard".

Personally, I find these objections to subjective evidence unconvincing. I respectfully agree with Cox J. in Gover-v-South Australia, (1985) 39 S.A.S.R. 543 when he said:-

"... In any event, I believe that the fundamental principle of causality governing negligence clearly supports the subjective test. ”

115. Later he continued: –

“Of course, the patient's statement of what he or she would have done if he or she had been informed of certain risks may be influenced by the fact that the risks actually materialized; but it is open to a court not to believe evidence which is subsequently found to be erroneous: Manderson, 'After Doctors Orders: Informed Consent in Australia' (1988) 62 ALJ 430 at 434. Apparently he is trying to find out what the complainant is reacting to If adequate information has been provided in a timely manner, a court will be greatly assisted by evidence as to the complainant's temperament, history of previous treatment for the same or a similar condition, and the nature of the relationship between the patient and the doctor, particularly, to the extent demonstrable, the trust that the patient has in the doctor. The extent to which the procedure was voluntary or imposed by circumstances, and the nature and extent of the risk involved, will be questions of significant concern: see Robertson, 'Informed Consent to Medical Treatment' (1981) 97 L.Q.R. 102 of 122.

Despite these practical difficulties, I agree with the wise judge that the subjective test is the correct one. It is supported by persuasion and is consistent with the principle governing proof of causality in other areas of negligence law. To the extent that there is an open option to be determined on the basis of policy (there is no ruling by an Australian Court of Appeal on the matter) although there are difficulties with both tests, I would rather accept than accept the threat of after-the-fact medical practice as a determinant. As Manderson (ibid. p. 434) points out on the question of causality from an objective point of view:

'Is determined to examine whether reasonable people would have refused treatment had they known the information withheld from them. The answer must be that reasonable people would have continued with the proposed treatment, despite the risks, if it had benefited their health. However, how will the court determine whether the overall medical risks are worth taking, other than seeking the opinion of the medical profession?'”

In O'Brien -v- Wheeler, Mason, P. addresses the subjective test on page 6:-

"The test requires that a claimant who has established that their physician negligently failed to alert the patient to a particular risk of treatment, convinces the court that the claimant would not have consented to treatment had he been informed.
This approach reflects the autonomy of the adult patient who (provided he is properly informed) has the right to decide for himself whether or not to go through with the procedure. A decision-making adult patient has the right to choose a surgical procedure that the hypothetically “reasonable” person would avoid and to refuse a procedure that the hypothetically “reasonable” person would avoid. the shoes would hug.

116. Soon afterwards he declared:

“Typically, an applicant takes on that burden by proving what he or she would have done. Of course, such evidence is hypothetical, but it comes from the person best placed to answer the essentially subjective question. Of course, there may be cases where the court can infer this element of causality from other evidence...".

117. To sum up, then, that subjective testing is geared towards the idiosyncratic patient who, for reasons peculiar to or inherent in that individual patient, does not fit comfortably into the image of the “reasonable patient”.

118. In Britain, the subjective approach was also used in Chatterton - v. Gerson, (1981) 1 QB 432 and Hills - v. Potter, (1984) 1 WLR(4) preferred. Causality issues have been well described by Justice Hutchison in Smith -v- Barking HA [1995] 5 Med LR 285 as follows (p. 288):

“There has been some debate as to whether the question of causality should be approached on a so-called objective or a subjective basis, i. H. whether the issue would be resolved by deciding what a reasonable person in the plaintiff's position would have done or by deciding what the plaintiff would have done. I would have chosen to do it myself. In support of the former approach I was referred to the Canadian Authority Reibl -v- Robert Hughes [1980] 2 SCR 880 and in support of the latter to the decision of Hirst J. in Hills -v- Potter [1984] 1 WLR 641. Both Lawyers asked me to accept that ultimately it had to be a subjectively justified decision. That must be correct in principle, because the question must be: If this applicant had been advised as she should have been advised, would she have opted for the operation or not?

However, in such a case there is a particular difficulty, especially for the plaintiff herself, in giving reliable answers after knowing the unfavorable result of the operation as to what she would have decided before the operation if she had been questioned. I would have given appropriate advice as to the inherent risks. Therefore, in my opinion, it would normally be correct to give special weight to the objective evaluation. If everything indicates that a properly informed reasonable author would have consented to the operation, the testimony of the court, after the adverse result was known, in a completely artificial situation and in the knowledge that the outcome of the matter depends on the maintenance of this testimony, does not carry much weight unless there are external or additional factors to support it. By extraneous or additional factors I mean, and only give examples, religious or other firm beliefs: special social or family considerations justifying a decision that is not consistent with what appears objectively correct: utterances in direct consequence of those made outside Operation a context other than a possible claim for damages: in other words, a specific circumstance which would indicate that the plaintiff had reasons not to do what a reasonable person in his situation might have done. Of course, the less certain the judge comes to the conclusion that the reasonable patient could have objectively decided, the easier it is for him to be persuaded by his subjective evidence.

119. I would strongly agree with these views, except that as regards the last sentence of the passage quoted, the converse is preferable because of the risk of bias and hindsight. According to the Court, both approaches are valuable in different ways and should be considered. First of all, it seems to me that the Court must look at the problem from an objective point of view. What would a reasonable and properly informed person in the applicant's position have done? This is the standard against which each claim of the plaintiff must be examined.

"In the position of the plaintiff" can be understood as the age of the plaintiff, the pre-existing health, family and financial situation, the type of operation; in short, anything that can be assessed objectively, even if it is personal to the complainant.
120. Purely subjective factors include not only the issues mentioned by Hutchison J. in Smith-v-Barking (which may partially overlap), but also the dialogue between the patient and the doctor, information to be extracted from studies. Notes or correspondence, referrals from third parties (particularly concurrent referrals), and, perhaps most importantly, evidence of the patient's actual behavior prior to surgery, as actions often speak louder than words.

121. There can be many instances where there is a lack of material or subjective information. In this case, the court must decide a question of causality to the best of its knowledge and belief, based on evidence of what a reasonable person would have done in the circumstances of the individuals. That's another good reason to start with objective testing.

122. However, it seems to me that objective evidence sometimes has to give way to subjective evidence if, but only if, credible evidence, and not necessarily that of the plaintiff, so requires in the specific case. While the court must of course give due consideration to the testimonies of patients and doctors, the cases cited above demonstrate the difficulties that anyone can have in providing a version on which the court can rely reliably or absolutely. Whenever possible, the court should look elsewhere for credible corroboration. If a credible picture emerges, the court can respond to it in order to reach a conclusion one way or another. If this dual approach smacks of pragmatism, so be it. In my opinion it is quite justified if it gives a better result in terms of deciding what would probably have happened. Basically, the different approaches seem to me to have more to do with methodology than with any legal principles. It is a "fact-building" exercise. In any hypothetical but necessary exercise there is a risk of dogmatically adopting one approach to the exclusion of the other, and in doing so would give up certain analytical tools.

123. In deciding what a reasonable person would do, it seems to me that medical opinions on the statistical probability of the risk occurring are extremely important. There has to come a point when a risk is so small, according to medical evidence, that a reasonable person is unlikely to be intimidated by it. This is a testament to normal everyday life where people travel by plane, sea and road, aware of a small but acceptable risk. In fact, I believe that each of the above forms of travel could involve a risk that is statistically closer or more serious than the one identified in the present case.

124. Regarding elective surgery, I agree with the following passage contained in Mr. John White's Medical Malpractice Actions, p. 190:-

“'Optional' is a descriptive term of little value in this context. Furthermore, given that the complainant's right to information (to make his or her own informed decisions) is at stake, the “elective” nature of the therapy in question may be of little importance in determining due diligence in relation to the need to disclose adverse risks. Under these circumstances. Where the "elective" nature of therapy becomes most important is in connection with establishing a causal relationship between proven negligent confidentiality and the author's decision to undergo therapy. In the latter context, the choice given by the "choice" nature of the therapy will be significant in showing that a reasonable patient in the complainant's position could very well have chosen to forgo therapy if he did in the matter had real choice.”

125. Certainly the "choice" meaning, i.e. causality, lies more than in the information obligation. Furthermore, it is obviously common sense to state that a person can forego surgery if they have a real choice in the matter.

126. But even in deciding whether or not to undergo elective surgery, I believe the reasonable man would be heavily influenced by the statistical likelihood of the specific adverse consequence occurring. If the risk is practically off the spectrum, I think a reasonable person could accept or exclude such a risk if it does not fall in the most serious category and if the perceived benefits of the proposed procedure are taken into account.

127. In connection with every warning he had to give about neuropathic pain, Dr. Harris told the patient that the risk in question was extremely small, perhaps one in several thousand, and while some nerve damage may have been involved in the procedure, chronic neuropathic pain at the implants or at the bone graft site was never experienced as a complication of this specific procedure .

128. A reasonable patient would therefore weigh up the advantages of the intervention in any decision. In Mr. Geoghegan's case, the surgery was certainly elective, but it had a cosmetic and functional component. Cosmetically, the proposed implants would have improved the appearance of his teeth and preserved his jaw profile. There is evidence that missing teeth are associated with bone resorption or bone thinning over the years, leading to the hollow-cheeked appearance that was historically associated with the elderly. From a functional point of view, Mr. Geoghegan could look forward to dentures that fit more securely in his mouth than dentures, provide a better ability to chew and chew food, and provide additional support for his existing teeth. These are very real and tangible benefits, so elective surgery should not be viewed as an option to be withheld at the slightest hint of risk or remote danger. I am convinced that in this case Dr. Harris communicated all of these benefits to Mr. Geoghegan through the video and brochure and during his two consultations.

129. Starting with the objective evidence, it seems to me that if the defendant were a reasonable patient in Mr. Geoghegan, that reasonable patient would most likely have performed this operation for the reasons stated. . However, since in this case a credible and reliable picture usually emerges from the analysis of the concrete evidence, the question regarding the subjective evidence of what Mr. Geoghegan, again probably, would have done it.

130. Mr. Geoghegan strikes me as a man stricken with grief and somewhat overwhelmed by his condition. As previously mentioned, he traveled the world in search of a cure and with the aim of gathering experts on his case. He was in California where, as part of a psychiatric evaluation, he told doctors he harbored hatred for the defendant for what had happened. According to Mr. Geoghegan, Dr. Harris should have done the honorable and admitted that he got too close to the tips of the teeth in the bone graft. The doctor. Harris, it must be said, vehemently denies doing so.

131. In addition, Mr. Geoghegan admits that in the immediate postoperative period he wanted to prevent Dr. Harris performed this type of surgery again. He also said dr. O'Grady, the Dr. Harris pay for what he did. He refused to pay the Blackrock Clinic's bill. He began following cases of medical malpractice in the newspapers, and in fact he once wrote to a certain plaintiff who was suing a dentist to offer him his help. These are very good reasons for the court to be skeptical of the plaintiff's claims that he made today, what he would have done then.

132. I imagine that Mr. Geoghegan, the Dr. Harris was a very different person from the court witness prior to his surgery in 1992, as at the time of the grieving he was free to direct his private life as a result of that proceeding. . . Nothing in the material before this court suggests that in 1992 he was overly sensitive or extraordinarily cautious or was the type of man who would cringe at the mention of remote risk.

(Video) A Guide to Medical & Professional Negligence from Lynch Solicitors

133. Mr. Geoghegan in 1992 speaks more eloquently than any oral testimony. He was keen to get cosmetic treatment because he had neglected his teeth for years. He was aware of all the benefits. The doctor. Harris gave him a video and a handout after they first met, but he didn't watch them until the night before the surgery and only then with Dr. harris. He was not following the protocol that Dr. Harris followed in preparation for the surgery. The doctor. Harris had to urge him to come to the office for a second appointment and threatened to cancel the surgery if he didn't. Mister. Geoghegan turned down an application request on June 21, 1992 because he felt he was compatible with Dr. Harris and was "well aware of what was going on". On the occasion of the second meeting, Dr. Harris gave Mr. Geoghegan a letter to be read before the surgery, which addressed certain potential complications, including complications from nerve damage. As hard as it is to believe, the plaintiff never read the letter. Nothing about his thinking could be more revealing. I concluded that he was so busy pre-op and so determined to proceed that he didn't bother with the details at all.

134. Mr. Cooney characterized Mr. Geoghegan as "casual" and "arrogant" about operations. I think this is a gross exaggeration of the position, but I am satisfied that Mr. Geoghegan is clearly indicating that he did not choose his operation because of a very low risk compared to what he saw or perceived as the benefits of the procedure, would move. . bring.

135. I therefore oppose the applicant on the question of causality.

(4) Misrepresentation
136. The applicant stated that Dr. Harris assured her that there was "no pain, no pain" involved with this procedure.

137. This is vehemently advocated by Dr. Harris, who explained that some pain is inevitable after a procedure of this type. He says he has Mr. Geoghegan that there would be "no pain" and it was not his practice to make such a statement to a patient. I think the evidence from Dr. Harris more credible on this particular issue, given that the Claimant assigned his own specialist, Dr. Vaughan and told him that Dr. Harris had stated that he "would not be accompanied by much pain". . Furthermore, in the video, the phrase "no pain" is uttered by a patient to describe her experience of the procedure, and I can't help but believe that the complainant inadvertently borrowed the phrase from this source.

138. Having said that, however, I do not believe that my conclusion has any connotations such as that suggested by Mr. Cooney in his last assertion that the plaintiff can hardly make a claim for negligence because he has not disclosed whether his case actually was is a misrepresentation.
I must say that any such representation, even if made, is to be seen and understood as limited to the context of the proceedings themselves. It had nothing to do with the highly unusual long-term condition suffered by the Claimant as a result of damage to his incisor.

139. In conclusion, I do not believe that the resolution of this specific allegation of fact against Mr Geoghegan could in any way affect the Court's obligation to consider the issue of reasonable notice and further consider whether Mr Geoghegan would have had surgery

(5) The curious patient
140. Mr Trainor, on behalf of the Claimant, submits that, in addition to the doctor's obligation to provide information about the proposed treatment, the patient has the right to full and complete information when making a specific request for advice. He referred to the following passage in Mr. White, par. 9.3.01 where the following is written:

"There is no doubt that when a physician is asked directly by his patient about the risks associated with the proposed therapy, he should answer the patient's questions directly and fully, unless he can rely on therapeutic privilege. convincing; and the scope of such a privilege is necessarily strictly limited in the face of a direct request for information by the actor".

In Sidaway -v- Bethlem Royal Hospital Governors and Ors. , (1985) 1 All ER 643, several members of the Court expressed their views regarding the "inquisitive patient" as follows:-

"Certainly, if the patient actually manifests this attitude through questions, the doctor would tell him what the patient wanted to know." (Diplock LJ on page 659)


"Perhaps I should add at this point, although the subject is not specifically addressed in this article, that when an apparently healthy patient is specifically asked about the risks of a particular proposed treatment, I think the physician's duty should appear so truthful and answer fully as the interrogator requires” (according to Bridge L.J. at page 661).

“Ms. Sidaway could have asked questions. If so, she could and should have been told that there was an additional 1% to 2% risk of damage to the spinal cord or neural pathway, which could result in an injury ranging from irritation to paralysis... If a patient knowing that major surgery can have dire consequences, he cannot complain of a lack of information unless he unsuccessfully asks for more information” (Templeman L.J. at p. 664).

141. These views are supported by Jackson & Powell "Professional Negligence" (3rd Edition) (1992) at par. 6.128 as follows:-

"However, if the patient asks specific questions, they are generally entitled to precise answers to the extent that the doctor can provide them."

142. Mr Trainor claims that Mr Geoghegan expressed particular concern about the pain associated with bone grafting and, by implication, the possible consequences.

143. On closer inspection, however, the allegation appears to be based on evidence presented at the trial, according to which Mr Geoghegan, during one of two preoperative visits, inquired into the possibility that the pain was caused by the procedure, along the lines of “. ..Dr. Harris, that looks very painful," whereupon Dr. Harris explained that the procedure would involve a bone graft from the chin. But like Dr. Harris told this court that it never occurred to him that there could be long-term neuropathic pain as a result of any part of the proceedings, that evidence alone really precludes the possibility of answering any particular question. the one meaningful answer from Dr. Harris regarding chronic neuropathic pain associated with the specific procedure.

144. I think Mr. Geoghegan asked Dr. Harris on whether the pain will last or last longer. In addition, I am pleased that pain related to the procedure itself and its immediate consequences was mentioned.

145. Mr Geoghegan admits that he expected some discomfort, 'a bit of pain, a bit of a burning sensation in my face for maybe a few days, I'd take some painkillers for that and then it would be fine'. gone." He wouldn't have had a problem with consequences like that, but "the idea of ​​aggressive pain or something just put him off."

146. Regarding dr. Harris recalls telling the Claimant that the procedure might cause some pain and discomfort, particularly during the first 48 hours, but that in his experience this was well controlled with analgesics and that after two weeks everything should be resolved have.

147. It is further submitted on behalf of Mr. Geoghegan that the Claimant was aware of any unusual complications that the proceedings might entail for him. Because her brother had died some time earlier as a result of a complication of a heart bypass operation at the Blackrock Clinic. Her brother had been reported a 2% risk with the procedure. If it was a 3% risk, he didn't think his brother would have undergone the procedure. Again, I see no connection between this concern and the possibility of chronic neuropathic pain.

148. Finally, it is suggested that the testimony of Ms. Geoghegan. She testified that she was Dr. Harris had told her husband during a phone call after the operation that it was a painless procedure as he was in excruciating pain. She says that dr. Harris replied, "It's very unusual, I've never known this to happen before," or words of similar effect. She was not questioned in this conversation, but I don't see that this conversation is more than Dr. Harris with the turn of events after the operation.

149. In particular, I do not see that I am Dr. Harris of the misrepresentation, and I do not see that it has any special meaning in the context of the supposed "patient questioning".

150. Given the heavy obligations imposed on physicians by Walsh-v-Family Planning Services, it seems to me that any real consideration of the “questioning patient” is subsumed under the Supreme Court's onerous disclosure requirements. Current Irish law requires the patient to be informed of any material risk, whether required or not, no matter how infrequent.

151. From a close reading of the authorities, it appears to this Court that the 'inquisitive patient' doctrine, if it can be called that, arose in England because of the limited disclosure requirements imposed on physicians by Bolam Hospital - v. Friern Management Were Committee, (1957) 2 All E.R. 872

152. As Lord Scarman observed in Sidaway (on page 881), Bolam's principle can be described thus:

“The Bolam principle can be formulated as a rule that a physician is not negligent if he acts in accordance with the practice recognized as appropriate at the time by a body responsible for medical evaluation, even if other physicians follow a different practice. In short, the law imposes a duty of care; but the standard of care is a matter of medical judgment.”

Sidaway added the clarification that under certain circumstances a judge might conclude that disclosure of a particular risk is so obviously necessary for an informed patient decision that no reasonably prudent physician would fail to do so.
153. Finally, I am not sure whether the Claimant has presented any incidental or alternative instances in which he asked a question that could reasonably be interpreted as relating to ongoing pain, or a question that required it to be to show him the risk of chronic neuropathic pain. .

SUMMARY of the judgment of Mr. Judge Kearns spoke on June 21, 2000.
156. This part of the judgment deals exclusively with the question of the doctor's obligation to provide information about the risks associated with surgical interventions.

157. The Court received submissions of fact from the parties in relation to a separate factual issue relating to the location of a bone graft taken from the plaintiff's chin during the proceedings which caused harm to the plaintiff . in the cutting nerves at the front of the chin, resulting in severe pain in the midline of the chin known as chronic neuropathic pain. Judgment in this matter will be rendered at a later date and no order will be issued prior to that date.

158. According to that court, current Irish law imposes the following duties on a physician in relation to risk disclosure, as follows:

(a) A physician's requirement is to indicate any material hazard that is a known or foreseeable complication of a properly performed surgical procedure.
(b) The test of relevance for elective surgery is to ask only whether there is a risk, however extraordinary or remote, of serious sequelae involving severe pain extending for an appreciable period in the future.

159. Thus, the questions which the Court must deal with in this case are the following:

(i) Was chronic neuropathic pain a known or foreseeable consequence of the placement of a mandibular premolar implant or the harvesting of a bone graft from the Claimant's chin?
(ii) If so, would a warning be required, regardless of risk elimination and medical expert opinions, if no warning were required?
(iii) Had the plaintiff been duly warned, would he still be likely to have elected to submit to the proceedings?
(iv) To the extent that the plaintiff alleges misrepresentation against Dr. Therefore, Harris, in the sense that he said there would be "no pain, no pain" in the proceedings, barred him from bringing an action for negligence for breach of disclosure if the court finds that the defendant failed to do so. such a statement?
(v) Did the applicant fall into the category of an "inquisitive patient" who had a special duty?

160. In summary, I have found that the answers to these questions are as follows:

(1) Nerve injury is a known and predictable complication of both implant and bone graft. Chronic neuropathic pain, although uncommon and rare, is a type of nerve damage because it falls under a subdivision of this risk rather than a separate risk type. It is therefore a "known complication".
(2) Having regard to the Supreme Court decision in Walsh -v- Family Planning Services Limited & Ors [1992] 1 IR 496, this Court is bound to rule that a warning of this risk was necessary despite the extremely remote nature of the risk and Evidence from medical experts that a warning was not necessary.

161. In the various decisions of the Supreme Court in Walsh-v-Family Planning Services, different legal principles were used to reach its conclusions.

162. This Court considers that the "reasonable patient" test, which requires full disclosure of all the significant risks associated with the proposed treatment, is the preferable test for the patient to be so informed and not about the doctor to make the actual decision whether to have the treatment or not. Assessing the duty to provide information on this basis is, in the court's view, more logical than the professional standard test, in which the court adopts the standard of the medical profession but reserves the right to overrule expert opinions. if you find it convenient.

(3) The Court considers that, even if the applicant had been duly warned, it is still likely that he would have chosen to submit to the proceedings.

163. Different jurisdictions have different approaches to causality. In some jurisdictions, the test is to find out whether the reasonable patient in the complainant's position would have elected to undergo the procedure or not (the objective test). In other jurisdictions, the question is decided based on the court's best estimate of what each plaintiff would have done in the case at hand (the subjective test).

164. This court considers that this problem of "fact formation" after the event requires a pragmatic approach, in which the court first considers what a reasonable person in the applicant's position would have done. This will usually determine the problem. However, this approach sometimes has to give way to a subjective approach where there is clear and compelling evidence from which the court can safely and reliably conclude what the individual patient would have decided. The strength and credibility of the evidence determines whether or not a subjective test can be used in a particular case.

165. In the present case, such evidence is available and, in the Court's view, strongly supports the conclusion initially suggested above, namely that even if Mr. Geoghegan had been properly warned, it would have been more likely that he would have proceeded with his operation. In this case, therefore, the plaintiff does not meet the causal link requirement. I would add that if you had applied an objective test you would have come to the same conclusion.

(4) The court considers it a fact that Dr. Harris didn't say there would be "no pain, no pain" associated with the procedure.

166. Although a patient in a video taken by Mr. Geoghegan prior to his surgery cannot, in my view, be construed as representative of or relevant to the Claimant's condition, as the expression is clearly limited to the Claimant himself. immediate procedure. The risk that occurred here had a completely different character in the sense that it was a permanent and long-term consequence. Likewise, I do not believe that plaintiff is barred from filing his claim for breach of negligence in disclosure, although it has been found that Dr. Harris did not make the specific statement or representation.

(5) The Court does not consider that there is a category of "inquiring patient" in Irish law as Walsh v. Family Planning Services Limited imposes onerous obligations on physicians which oblige physicians to inform of any risks with serious consequences , regardless of its rarity.

167. While a physician must of course answer any question a patient asks to the best of his or her knowledge, the question is essentially contained within the broader obligation imposed on physicians by the Supreme Court decision. In any case, I don't think Mr. Geoghegan asked specific questions that warranted warning of the possibility of chronic neuropathic pain.

Philp-v-Ryan und Anor

[2004] IESC 105 Tribunal Supremo Fennelly J.

The court has already ruled on this complaint. Increase in damages awarded to Peart J.'s plaintiff/defendant in the High Court from €45,000 to €100,000.
The lawsuit charged both defendants with professional negligence because the former defendant failed to diagnose the plaintiff with prostate cancer and not, as he found out, prostatitis.
Liability was disputed in the Superior Court, but the defendants' appeal was limited to the question of damages. The plaintiff appealed, contending that the damages awarded were insufficient. Two points were raised in the complaint:

· That no compensation was paid for a possible loss of life expectancy;
· What aggravated damages should have been awarded as a result of the performance of the defense of the claim.
On 26 June 2001 the applicant was admitted to Bon Secours Hospital in Cork and referred there by his family doctor. He complained that he had not been able to urinate since the day before and that he had stomach pains. Pathological reports regarding the urine specimens showed "no bacterial growth" and a severely elevated PSA of 168. The former defendant diagnosed acute prostatitis. The opinion of the plaintiff at the main hearing was that due to his clinical condition, pathological findings and other factors, it could not be an acute prostatitis. In fact, the test results indicated that the Claimant almost certainly had cancer that had spread (metastasized) to other parts of the body outside of the prostate.

This view has not been seriously contested by the defendant's experts. At this stage, of course, the only problem is that the plaintiff's condition was catastrophically misdiagnosed due to the negligence of the defendants. Tragically, it was also clear that plaintiff's cancer was already at an advanced stage when the former defendant was first brought forward. The real question on this aspect of the complaint was therefore to what extent the plaintiff was entitled to compensation for a misdiagnosis if he never fully recovered. Was the plaintiff entitled to compensation for being denied the opportunity to consider possible treatment for his cancer because he was not informed?
First of all, it is important to present the main conclusions of the learned investigating judge on the subject of negligence. The learned trial judge claimed that the first-named defendant had acted carelessly in diagnosing prostatitis and dismissed all other possibilities. Consequently, it neither informed the applicant that he had cancer nor arranged for any other necessary tests. The negligence of the former defendant resulted in the plaintiff not knowing that he had prostate cancer until eight months later than he should have. Specifically, between July 2001 and March 2002, he was denied the opportunity to speak to the accused or any other doctor about his illness and the treatment alternatives.
The arrival of news in March 2002 that he had advanced prostate cancer came as a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but the defendant had done so in the first place. .
The learned trial judge found that the applicant had reasonable grounds to believe that his life expectancy was less than it would have been had the correct diagnosis been made in July 2001, and this caused him great uneasiness.
Regarding the question of damages, the learned judge said:
“I have no doubt that the author endured great anguish and torment knowing he might have been diagnosed earlier. The whole scientific medical debate about the advantages and disadvantages of immediate versus deferred treatment is of little comfort to the plaintiff, who I believe has reasonable grounds to fear that his life has been shortened."

When he was able to quantify the damage, he said:
"As for damages, I propose that a lump sum be awarded to account for the suffering the plaintiff suffered as a result of the negligence of the first defendant. The plaintiff's evidence was that after receiving the letter on March 10, 2002, he panicked and became very angry and feeling let down at the wrong diagnosis and he thought that what he now faces in relation to the survival quite different has been podría. Of course, whether his life was cut short we will never know” (emphasis added).
The author therefore did not claim compensation for the loss of life expectancy. It was claimed on his behalf that had his cancer been correctly diagnosed in the summer of 2001 he would have been informed of the various treatment options available. The main option would have been hormone treatment. Although the success of this treatment was not guaranteed and could be associated with undesirable side effects such as impotence, there was an established scientific consensus that life could be significantly prolonged.
The experienced trial judge undertook a meticulously detailed review of the expert testimony and literature available to him on the subject. Their conclusions were:
• There are two highly respected doctrines within the medical profession regarding the general advantages and disadvantages of immediate versus delayed hormone treatment for prostate cancer and that it is not negligent to treat a patient in accordance with any treatment you are given;
• However, it is more likely that, in relation to the condition of this particular applicant, in July 2001, had the correct diagnosis been made, the applicant would have had a thorough discussion with their treatment advisor about the pros and cons of each treatment option. was explained to him in a manner the author could understand and the author was able to participate in the decision-making process about his treatment and future and that in the circumstances of the present case he was deprived of that opportunity;
• Had the applicant, after consultation with their treatment advisor, decided to delay hormone treatment until the disease had progressed, the applicant would still have been closely monitored. In other words, he would be under constant observation to see how the disease progressed;
• It was unreasonable to assume, based on the evidence, that the eight-month delay in correctly diagnosing had no adverse impact on the life expectancy and quality of life of the plaintiff, and it is unreasonable for said defendant to say so in the first case if you did not know Having cancer made you better off in the sense that you could get on with life for those eight months without worrying about having a serious illness. This would deprive the applicant of his fundamental right to be informed of a serious matter relating to his health and his right to plan his future in the light of that knowledge.
After weighing the probabilities, the learned trial judge held that, having been deprived of the opportunity to consider immediate or very immediate hormone treatment in the summer of 2001, a reasonable consequence of this was that the applicant would be reasonably believed by a a that his life had been shortened by between 8 months and two years and that there was reasonable basis for this belief in the evidence. Based on these considerations, it was decided to award a flat rate to reflect the actor's anger and suffering.
However, it did not award any compensation for the fact that the applicant, who had not been informed of his status in June 2001, was deprived of the opportunity to receive favorable treatment. In particular, he had not promised any compensation for the loss of the opportunity to be able to find out about even short-term life-prolonging treatment.
This does not mean that the learned judge first degree did not take this aspect of the act into account. On the contrary, he discussed with great care and presented the conflicting views in great detail.
First, he referred to the statements of the author's expert, Dr. Shah that there is "a clear benefit of early therapy in patients with prostate cancer". He considered the "critical issue related to the diagnosis at the earliest possible date". He felt that "the benefit of early therapy ranges from eight months to three years." The postulated treatment was hormone therapy. The doctor. Shah relied on a 1997 study by the UK Medical Research Council. Unfortunately, the claimant's complete cure was not at stake. The question was whether his life could have been prolonged. This opinion was supported by another medical expert named by the author, Dr. Strong man.
The evidence provided by Mr. Denis Murphy, a consulting urologist, called on behalf of the complainants that it was better to delay hormone treatment. He said there is a wide spectrum of opinion on whether hormone treatment should be started immediately after diagnosis. He doesn't think the author would have had a better prognosis had he been diagnosed earlier.
Referring to this evidence and conflicting evidence in what he called "academic debate" about the merits of previous hormone treatments, the learned judge said:
“What is undeniable is that there are two reputable medical opinions on a general question of whether it is best to treat a patient with hormones as soon as a diagnosis of localized prostate cancer has been made, or whether it is beneficial in the afternoon. that the patient must wait until the disease has spread to other parts of the body, or whether it is better to wait longer until the patient actually develops symptoms.”
He asked the following question:
"But it is important to address whether it is likely, based on the studies, materials and evidence presented in relation to this matter, that this particular applicant, Mr Philp, shortened his life as a result of his disease characteristics in July 2001 because his treatment was postponed until March 2002 due to a misdiagnosis in July 2001, or Mr Ryan is correct in weighing the probabilities when he states that according to his doctrine it was correct or justifiable in any case for postponing hormone treatment to March 2002 with no adverse consequences for the applicant's hope of life" (emphasis added).

At one point the learned trial judge seemed to lean in favor of the plaintiff's evidence when he said:
“I believe there is ample support for the Claimant's belief that, in all likelihood, given his specific condition, he had a greater than 50% chance that prompt hormone treatment in July 2001 would be beneficial. Such treatment should have been discussed with the complainant and I believe that if Mr Ryan had not discussed these options with the complainant in July 2001 he would have failed in his duty of care. I will not go so far as to say that if Mr. Ryan recommended that the Claimant defer treatment, and the Claimant followed that advice, Mr. Ryan would be remiss in recommending it. I am simply pointing out the need, Mr Ryan, for the complainant to make an informed choice about the options. A patient is always ready not to accept his doctor's advice after he has been fully informed of all relevant considerations, especially in a situation like the plaintiff's where there is no unanimous medical opinion about the right course of treatment. ”
Ultimately, however, it did not award any damages for this aspect of the claim. His approach is based on the following:
"I cannot come to a definitive conclusion as to whether his life was shortened, or how long, simply because the whole question is a matter of such debate, as I have shown, but I can conclude, considering the probabilities, that I fear his life." was shortened, it is a reasonable fear and the suffering inflicted on the complainant in this respect is reasonable and for which he is entitled to compensation.”

It should of course be noted that this question is only brought to court by way of cross-appeal. The appeal to this court was not made by the plaintiff but by the defendants. However, the court was satisfied that the defendants' appeal that the damages were excessive was unfounded. The compensation of €45,000 was sufficiently justified by the conclusions of the learned judge of first instance as to the actual pain and the pain suffered by the plaintiff. In addition, I fully agree with McCracken J.'s finding that aggravated damages should have been awarded. The failure of defendants' attorneys to inform plaintiffs' attorneys that defendants had falsified the medical certificate on which they had relied in the first place at the pretrial was highly reprehensible. This behavior was designed to mislead the plaintiff, his advisers and the court on an important issue. Unfortunately, the defendants made a conscious decision not to correct the false impression they had previously given to the plaintiff that there would be evidence supported by a truly contemporaneous note that the plaintiff had been advised to seek further testing to undergo.
All that remains to be dealt with is the subordinate appeal against the learned judge of the lower court's failure to compensate for the possible or probable loss of life expectancy. The cross-appeal alleges that it was wrong not to award damages under this heading, finding that it would be unreasonable to assume that the approximately eight-month delay in the correct diagnosis had no adverse effect on the plaintiff's life. hope of life.
The learned trial judge appears to have asserted a probability of success in considering the applicant's claim for damages for loss of opportunity to receive hormone treatment. Damage depended on proving that life would probably, impossible, have been prolonged.
The author claims the right to compensation for losing the opportunity to choose a treatment for his cancer based on a correct diagnosis and proper medical advice. Assuming such a correct diagnosis, he claims that there was a possibility that his life might have been prolonged to some extent. It is a common case that the prospects for successful treatment were problematic at best. The trial judge's view that the medical-scientific opinion on the benefits of hormone therapy was divided is undisputed.
Defendants argued that this type of missed opportunity was not valuable in the sense that it should not generate compensation unless it could be shown that the postulated treatment was likely to have been successful. Mister. Patrick Keane, lead counsel for the defendants, went so far as to argue that a forty-nine percent chance of successful treatment would not qualify them for compensation, while a fifty-one percent chance would. When asked how this fits with the general practice of allowing risks for the future development of conditions like arthritis or epilepsy below fifty percent, he tried to distinguish these examples as only on the debt side. These were negative opportunities for an injured party, while in the present case the plaintiff is seeking compensation for a lost opportunity.
Before one of Dr. I have to say to John White, the author's lead counsel, that I believe it goes against instinct and logic that a plaintiff should not be entitled to compensation for the fact that he has been deprived of adequate medical care because of neglect of his health Counseling and the consequent ability to access treatments that could improve their condition. I can find no conflicting principles of law or justice. It is common for indemnities and settlements to take into account the risk of an injured plaintiff developing arthritis in an injured joint in the future. The risk can be high or low (the 15 percent risk is often cited), but the damage is worth it. I cannot agree that this is different from what is being requested in the present case. It does not matter that the harm suffered by the applicant is that he is denied the opportunity to access treatment. It could be described with the same logic as a greater risk of shorter life expectancy. It seems to me just as illogical to compensate for a probable future loss as if it were certain than to withhold a low-risk indemnity on the grounds that it will not occur.
This exact matter was dealt with by this court in Dunlop v. Kenny (unreported, July 29, 1969). O'Dalaigh C.J. passed a unanimous verdict. It was found that the jury erroneously claimed that the plaintiff suffered from epilepsy despite evidence that there was an "increased risk" of epilepsy. O'Dalaigh C.J. claimed the trial judge exaggerated the risk. However, it did not mean that there should be no awards under this title. The following passage shows very clearly the correct approach:
"In such cases involving the possibility or probability that a disability or disease will arise or develop in the future, the damages to be awarded must be proportionate to that possibility or probability, as the case may be. . If the level of probability is high enough to convince the jury that the condition is unlikely to occur, the jury is entitled to assume that it will occur and should rate the damage accordingly. On the other hand, if the probability that such an event will not occur is such that it is improbable, compensation must be granted, but it must be proportionate to the level of risk, however small.
Of course, this statement only applies to the assessment of damage for uncertain future events. With regard to past events, whether they relate to liability or causation, the standard of evidence of normal probability equilibrium applies. These questions were raised by the House of Lords in Davies v. Taylor [1974] v. checked. 207. This was an action for damages resulting from the fatal accidents of 1846. The plaintiff brought an action for the death of her husband. At the time of her death she was estranged from him and he directed the lawyers to start divorce proceedings. To justify his call for future dependencies to be lifted, he said that a reconciliation had taken place. The House of Lords agreed that the trial judge was wrong in finding that no amount could be recovered.
Certain passages from the Law Lords' speeches strongly support the approach I have described to this case. Lord Reid spoke on page 213 as follows:
"When it comes to the question of whether a certain thing is true or not, whether a certain event occurred or not, the court has to decide one way or the other. There is no question of chance or probability. Either it happened or it didn't. But the civilian standard of proof is a balance of probabilities. When the evidence is weighed in favor of what happened, then it is proven that it happened.

But here we are not and could not look for a decision whether the wife would return to her husband or not. You can prove that a past event has occurred, but you cannot prove that a future event will occur, and I don't think the law is stupid enough to assume that you can. All you can do is evaluate the opportunity. Sometimes it's practically 100%; sometimes practically zero. But it's often somewhere in the middle. And if it's somewhere in the middle, I don't see much of a difference between a 51% probability and a 49% probability.

“Violation” in fatal accident laws does not and cannot mean loss of certainty. It must and can only mean the loss of an opportunity. The probability may be over 99%, but it's still only a chance. So I see no value in adopting here the test used to prove whether an event has occurred or not. It has to be all or nothing.

If probability equilibrium were the appropriate test, what would happen in the two cases I assumed were 60% and 40% probability? The 40% case won't get anything, but what about the 60% case? Is it about getting full compensation because the wife has demonstrably returned to her husband? That would be the logical consequence. I see no reason to say that the 40 percent case fails completely, but the 60 percent case achieves 100 percent. But it would be almost absurd to say that the 40 percent case gets nothing while the 60 percent case is reduced proportionately to what the premium would be if the spouses lived together. That would mean applying two different rules to the two cases. Therefore, I reject the probability equilibrium test in this case."
Lord Simon spoke of Glaisdale on page 220 to similar effect:
“…But this is one of those cases where weighing the probabilities isn't the right test. If the applicant presented a significant (ie not merely imaginative) opportunity to resume cohabitation, she was entitled to compensation for having been deprived of that opportunity. The indemnities would, of course, be reduced from those owed to the dependent spouse in a stable partnership as the possibility grew ever further away. But it would still be entitled to some, to the point where the possibility is so far-fetched and remote as to be de minimis.
Estimating future losses is sometimes a matter of mathematical calculations. In certain cases, the courts usually resort to the test of actuaries, specialists in calculating the present value, which is made up of a combination of future events with a greater or lesser probability. They can include an allowance for the occurrence of a variety of contingencies, including probable age of death or retirement age. No one is suggesting that your calculations should be based on the probability rather than the possible occurrence of each event. Their reports would be deeply flawed if they were.
In my view, the complainant should be compensated for the loss of the opportunity to receive appropriate advice and treatment. Given this element, along with the aggravating element of McCracken J's trial, I believe the sum of €100,000 is the correct amount of the fine. It would therefore dismiss the appeal and allow the appeal, replacing the €100,000 amount with the €45,000 sentenced by the National Court, an amount increased to compensate both for the loss of life expectancy and for the deterioration the damage dealt with in the trial McCracken J.

McCracken J.

In this judgment I propose to deal only with the question of whether the plaintiff is entitled to compensation for aggravated damage as a result of the conduct of the defendants in the preparation and presentation of their lawsuit.

In Conway v. Irish National Teachers Organization [1991] 2 IR 305 this court considered the circumstances in which aggravated or exemplary damages might be awarded. In the present case, the plaintiff is not claiming exemplary damages, as was finally awarded there, but increased damages. On page 317, Finlay CJ discussed various types of damages that might be awarded, saying:
"2. Increased damages with increased damages due to:-
(a) the manner in which the error was committed, including elements such as oppression, arrogance or outrage, or
(b) the behavior of the offender after the error was committed, such as B. refusing to apologize or make amends, or threatening to repeat the mistake, or
(c) conduct of the infringer and/or its representatives in defending the injured party's claim up to and including the judgment of the claim.
This list of circumstances that may aggravate compensation until they can properly be qualified as aggravated damage is by no means exhaustive or exhaustive. Furthermore, circumstances which may constitute an aggravating factor in the assessment of damages must in many cases be partly an acknowledgment of further harm or insult to a claimant who has been harmed, and partly also an acknowledgment of hubris or scandalous conduct on the part of the defendant." .

In the present case, the plaintiff relies on the last of these factors as a claim for increased damages. In Swame v. Commissioners of Public Works [2003] 1 IR 521, considering the issue of aggravated damages in a negligence claim against defendants for exposing the plaintiff to risk of contracting mesothelioma, Keane CJ said at page 525 after he himself Conway had referred to the case:-
"Although the then President of the Supreme Court emphasizes in the passage I quoted that the list of circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he identified do not typically arise in negligence cases and , if they are to be done, are no reason to increase the damages."

He then commented that in a negligence claim, the circumstances leading to the greater damage could not be expected because:
"Most parties leave the handling of the case entirely to their lawyers or insurers."

After referring to the English decision Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v. O'Connell (not reported June 5, 1997), the Chief Justice continued on page 528:
"Neither have these authorities been summoned in the present case, and in the circumstances I do not think it would be appropriate for the court to find that there are no circumstances in which claims of negligence or harassment can be awarded aggravated damages . This question can be left to a case where it is fully argued. In the present case, however, I am satisfied that while the defendants are undoubtedly guilty of "gross negligence," that alone is not sufficient to give the plaintiff a right to compensation for greater damages in circumstances such as those in Finlay CJ's judgment in the Case Conway v. Irish National Teachers Organization [1991] 2 IR 305 or factors of a similar nature.”

It should be noted that the authorities cited by Keane CJ in that passage were not cited in this case either, and the applicability of aggravated damages to claims for negligence was not discussed in depth in that court. However, it should be noted that the claim for increased damages in the present case is by no means based on the degree of negligence on the part of the defendants, but on their behavior after the negligent acts.

The basis for the increased damages in the present case can be found in the medical files of the first-named defendant in connection with the consultation with the plaintiff on July 12, 2001. The corresponding minutes of December 7th, 2001 read:
“ROC today at OPD
see DECO1
PSA 6/52"

Looking at the notes, it is quite clear that they are intended to be a contemporary account of what transpired on the various dates given in these notes. The applicant submitted evidence that the first line was his short form of "Catheter removal in the ambulance today", that the word "To" was an abbreviation of what he was planning to do and that he would visit the applicant in December 2001. As part of his testimony, he acknowledged that the addition "PSA 6/52", intended to indicate that the plaintiff would undergo a PSA test within six weeks, was subsequently added to the notes in December 2002, when he received a letter from the plaintiff's attorney threatening a lawsuit.

Plaintiff's counsel clearly questioned the authenticity of these clinical records and refused to admit them as unsubstantiated evidence, although Plaintiff admitted the hospital records without formal evidence. The matter finally came to light on the sixth day of the trial in the main trial against the first accused. He referred to the case notes for a very different matter, and the wise coroner, apparently assuming the case notes had been accepted, asked to see them. The plaintiff's attorney said the notes were not admitted into evidence and asked that the originals be produced. This was done, and the first defendant disclosed at the time that "PSA 6/52" was an addition I made to the notes at a later date." He explained this by explaining this in December 2002 when he was a Received letter from plaintiff's attorney With a threat of suing him, he checked his notes and also checked his correspondence with the applicant's GP that a letter to a GP would normally make a more complete record and suspected that he had it in his Omitting clinical notes, he did not say in his main evidence that he remembered telling the author to take an additional test within six weeks.

During cross-examination, the first defendant admitted that:
"I'm not saying with any certainty that I did this or Mr. Philipp. I don't remember the query. So if I take your question with me, I'm pretty sure I'm sending this address to Mr. Philipp? May I say that I asked you to do this? The answer is no, I can't say that.
Later, during cross-examination, the plaintiff's attorney attempted to ask him when he had first told anyone that he had changed the document. Through his attorney, the first defendant claimed the privilege of being required to disclose a communication between a client and his attorney, and this objection was upheld. On cross-examination, however, he said he had "recently" realized that there was a way of not advising the applicant to take an exam, as noted in the notes, adding:
"And so I made the decision to contact my legal department and update them on the situation regarding the note."

He later said that the decision to disclose the fact that the document had been altered was made about a week before the hearing, and he later said:
"Until recently, I mean like about two weeks ago, I thought I asked to take this PSA test."

He reiterated on several other occasions during cross-examination that before the lawsuit began, he contacted his legal department and discussed the matter with them and asked for advice.

The Learned Judge First Degree, after hearing all the evidence, stated on page 26 of his judgment:
"Given Mr. Ryan's evidence in court that he does not remember the July 12, 2001 inquest, I cannot accept his evidence that he was absolutely certain that by amending the file he was merely completing the file, to reflect the true situation. I believe, considering all the probabilities, that after receiving the attorney's letter in December 2002, he reviewed the clinical notes and, in a sort of panic that must have affected his judgment of how to react or act, inserted a note which he felt would be helpful in his defense of what would obviously be a complaint against him.

This is an extremely serious finding against the first defendant. It is concluded that the first defendant intentionally and knowingly altered a document which he should have known would be used in a judicial proceeding with the intention, as the trial judge said, of aiding his case, which actually means, with intent to deceive the court and attempt to deprive the plaintiff of damages to which he later became legally entitled.

This matter is extremely troubling in itself as the first defendant appears to have instructed its counsel to seek a PSA retest within six weeks from the plaintiff. At the time, Plaintiff and her counsel were rightly represented by Counsel and Counsel that this was a fact that would be proved by the First Defendant. I will come back to these things later in the process.

In addition to deceiving her legal advisors, the Claimant also attempted and succeeded in deceiving her own expert. He prepared a summary of the case, which Mr. Michael Murphy, a consulting urologist, testified on his behalf, entitled "Case Summary." In the course of this summary of the case he made the following statements:
"I asked him to do a serum PSA measurement after six weeks in the Middle East and to contact me with the result."
"Being of the opinion that prostate cancer is just a long journey, I would consider it good medical practice to try to avoid a patient's seemingly unnecessary worry and anxiety for a period of six weeks while their next research evaluation (i.e. repeat of the serum PSA value) is performed ) was expected. If the PSA post-test had been performed as instructed and the PSA post-test had shown no signs of a decrease and an increase had actually been observed, I would have raised the appropriate concerns. ..."
"What happened was that Mr. Phil didn't contact me with the PSA result as requested."

In my opinion this was a clear attempt to deceive a witness who the first defendant knew was going to testify as an expert and who the court would therefore consider as such. By deceiving Mr. Murphy, the first defendant, tried again to deceive the court. Fortunately, the tampering was discovered before Mr. Murphy testified and was in fact fully convicted.

The allegation that the plaintiff was required to undergo an additional test within six weeks was not unique to the clinical records and report to Mr. Murphy. It was also done to plaintiff's counsel in various ways, although, as has been said, defendants' counsel at the time no doubt believed it to be true. On July 1, 2003, the plaintiff was served with a notice admitting the facts and was asked to admit that the former defendant had told him to schedule a test six weeks later. On 7 July 2003, the Claimant was interviewed, during which the Claimant was asked to admit under oath that the former Defendant had told him on 12 July 2001 to arrange for a PSA test six weeks later and that it was important be that the test is carried out . Outside. On May 22, 2003, the first named defendant submitted a discovery statement disclosing his clinical records and when asked to produce them, the amended records were presented. In fact, despite its date, this discovery statement was not served on the plaintiff until June 24, 2003. On July 1, 2003, plaintiff's attorneys were asked to admit the medical records kept by the defendants without formal evidence. On July 19, 2003, defendants' counsel responded to a memorandum detailing: "On July 12, 2001, plaintiff was consulted by Dr. Ryan to have a serum PSA measured after six weeks in the Middle East and to contact him with the result." .

In the light of these documents, there is no doubt that the defense against the plaintiff's case must have appeared much stronger to the plaintiff's attorney than it actually was. The crux of the plaintiff's case was that after his illness in July 2001, he was not told he had prostate cancer for about eight months. If he himself had not complied with the first defendant's request for a test within six weeks, it would be clear that much if not all of the blame for the delay lay with the plaintiff himself. He may have felt discouraged from holding the stock because of the obvious risk, or sold it well below its value. Moreover, if the change in the document had not come to light through the intervention of the trial judge, the defendant's expert, Mr. Murphy, would have presented evidence based on the fact that the alleged instruction had been given to the plaintiff and the first defendant himself would not have been subjected to rigorous cross-examination in connection with this instruction. It is quite possible that the trial judge would have ruled against the plaintiff in these circumstances.

The really scary thing about this case is that the defendants' attorney appears to have been notified of the change by the first defendant between one and two weeks before the filing of the lawsuit. I find it almost incomprehensible that, under the circumstances, they failed to inform the applicant's lawyers of the true facts. While much of the blame falls primarily on the first defendant for altering the document, he at least disclosed the facts to his own counsel, and in my opinion at least as much blame should be attributed to them. , if not older. . It is revealing that they did not attempt to use the clinical notes in questioning the Claimant or his advisers, although in this cross-examination they indicated that he had been instructed to undergo further testing within six weeks. They did not seek proof of their own client's notes until told to do so by the trial judge, even though they knew they were being tested on the notes. There must be at least a suspicion that a deliberate attempt was made to hide the true facts from the court, although the amended document was presented to the plaintiff's lawyers as genuine and the facts stated in the amendment were part of the instructions given to Mr. Murphy.

In examining the law early in this process, I found that some doubts had been raised about whether aggravated damages should be awarded in malpractice claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded. The Claimant has not demonstrated the effect on him of the misinformation he received. The defendants have no complaints about that, as their failure to uncover the true facts before closing the case was solely due to what I can only describe as misconduct by the defendants' attorney in not disclosing the change.

In the absence of direct evidence, in these circumstances I believe the court is entitled to infer the likely impact of this misinformation on the plaintiff. It must be remembered that this is a man who knew for two years that he had prostate cancer and did not have much time left to live. She filed a lawsuit based on concern, fear and missed opportunities arising from the defendants' negligence. One can only imagine the added stress and anxiety he must have endured because he believed there was a strong reason for his actions, at least in the documents presented to him. In my opinion, the grossly inappropriate conduct of the first defendant and his attorney greatly increased the harm you were already being compensated for as a result of the defendants' negligence. This is clearly a case where existing damages were aggravated by such conduct and you would be awarded a sum of €50,000.00 in addition to any damages awarded in relation to your basic claim under the Fennelly J judgment, by which judgment I fully agree agree.

Walsh v Jones Lang Lasalle Ltd.

[2017] CES38

While this evidence is useful information, it does not solve the problem in this case. Ultimately, it is a matter of reviewing the applicable law, the applicable test and considering the terms of the disclaimer in the light of the applicable law. Citing in part the then relatively recent Supreme Court decision in Wildgust & Anor v. Bank of Ireland & Anor [2006] 1 IR 570 the High Court held that the defendant was liable and that the liability waiver did not work to protect the defendant. The reasoning of the learned judge of first instance is contained in a series of passages beginning in the following paragraph, where he addresses the question as follows:

“In my view, the question to be addressed in connection with the 'waiver' is whether its presence in the prospectus and its precise terms are sufficient to exempt the defendant from liability to the plaintiff in respect of the defendant's negligence in miscalculating the prospectus Ground area of ​​the property and the negligent statement by the defendant by posting the wrong dimensions of the usable area. Based on the evidence, I don't think it's sufficient."
16 The coroner discussed this and concluded:

` "Should the defendant reserve the right (a) to publish in its sales prospectus precise, in reality grossly inaccurate, measurements and (b) to indemnify the group of persons to whom the prospectus and its sale were directed, the defendant was undertakes to advise the plaintiff and other potential buyers that the published measurements, which appear to be accurate, are unlikely to be entirely reliable and should not be relied upon under any circumstances.
Defendant breached that obligation by including a cryptic small print in its prospectus, which purported to have taken particular care in preparing all the details of the prospectus but advised potential buyers to “verify the accuracy of the information provided”.

Based on evidence of the practice of buyers and sellers of commercial property in Dublin at the material time, the Defendants' "Notice" was a grossly inadequate means of informing potential buyers that what appeared to be accurate measurements of floor areas were being advertised in this way so prominent in the prospectus were not entirely reliable.

It follows that the "disclaimer" placed at the bottom of the first page of Defendant's brochure did not effectively exempt Defendant from liability for negligence and negligent misrepresentation of the kind asserted on Plaintiff's behalf". (emphasis added)

17 I understand that the manner in which the Supreme Court case was conducted meant that this judgment was not likely to make sharp distinctions between statutes or provide extensive reasons for its conclusion. I think it's fair to summarize the decision as follows. It appears that the court did indeed conclude that there was sufficient proximity between the parties to establish a duty of care (and perhaps that it was not necessary to distinguish between negligent acts and negligent declarations) and that the notice the defendant's release from liability was not effective if such a declaration was made negligently.
18 The approach of treating this case as a single instance, which has no further impact on the law and with reference to the well-known principles of Hay v. O'Grady [1992] 210, which sets out the limitations of appeal testing. In fact, so many negligence claims are resolved. Although the vast majority of civil lawsuits ultimately rest on the law of negligence, almost all are resolved without dispute or even reference to legal basis. These cases are decided almost by rule of thumb, which means that most cases are decided on whether something that could be described as negligence was actually proven. This is not to say that resolving such cases is not of significant importance to the people involved and does not require great skill; simply that a detailed analysis of the law is rare. Since some negligence can be proven, the author must be successful. In fact, there is a lot to be said for the pragmatic approach. Resolving difficult cases can be a form of soft law, but it can be a useful way to achieve broad justice. In fact, there was much to suggest that these questions had not been resolved. It was certainly contrived on the part of the plaintiff to say, when the case arose, that the plaintiff had suffered losses on a highly successful investment. Irrespective of the legal effect of the waiver, the defendant points out an error that must certainly have been embarrassing for a company that is aware of its expertise. In fact, many calculation and measurement errors can be made, even with time and care. But once a mistake has been identified, it's hard to argue that it wouldn't have been made had more care been taken.

19 However, this case came to a hearing and was decided in favor of the plaintiff. Again, if it were permissible to take a broad approach in this case, then the result would certainly not be demonstrably unfair. Jones Lang Lasalle did not deny that he was lax in providing inaccurate measurements, which was well within his experience. In addition, the now underlying disclaimer states that "every precaution" has been taken. Therefore, if this case could be approached as just another instance in the “single instance wilderness” of negligence law, and without raising a broader issue, it would not require much judicial attention. That appeal, however, raises important legal issues, whether narrow or broad, which the Court, at least in my view, cannot adequately avoid.

20 This statement needs to be placed in a larger context. To the extent that it is contended that there was sufficient proximity, indeed proximity, between the parties here to justify the imposition of a duty of care on Jones Lang Lasalle to the plaintiff, that proximity arises in the present case through a transaction, the purchase of land, which in turn is contractually regulated, in terms familiar to lawyers and private individuals, namely those dealing with real estate investments. The author has concluded a purchase contract for the property from the seller here. Jones Lang Lasalle acted as the seller's representative in marketing the property. The relationship between the seller and Jones Lang Lasalle was itself essentially contractual. Neither of these two contracts was at issue in the evidence or in the Superior Court's judgment, but they form two sides of a triangular relationship which Plaintiff claims warrants Jones Lang Lasalle's imposition of a duty of care on Plaintiff. The lack of a contractual claim against the seller, either for termination under false allegations (certainly an unlikely and undesirable solution from the plaintiff's point of view given the middle class movement) or more realistically a claim for damages for breach of warranty suggests here was allegation or misrepresentation by Jones Lang Lasalle over the area of ​​the property at least between buyer and seller without any contractual significance. It does not appear that the land area was a contractual condition between seller and buyer. An important starting point, therefore, is that the inaccuracy in the size of the premises does not appear to have had any legal consequences between the main parties to the sale and therefore and consequently between Jones Lang Lasalle and his client. who eventually paid for Jones Lang Lasalle's services. In this context, the seller's representatives are accused of having a duty of care towards the buyer. This, I believe, reinforces the importance of remembering that the starting point of the analysis is Hedley Byrne v. Heller [1964] AC 465 stated that one party normally has no civil liability to another in respect of statements made by it. This is an important distinction. In the area of ​​complaints, it can be said that the starting point is mostly “duty of care unless”, while for statements it is “duty of care only if”.
The broad or narrow approach to responsibility
21 The limited version of plaintiff's claim depends solely on the interpretation of the waiver within the meaning of traditional negligence law. The question here is whether the relationship between the parties is sufficient to establish a duty of care, and a waiver can be important evidence in this regard. The author's case in this limited version is simply that the terms of the disclaimer here are not sufficient to mean that a duty of care has not arisen. However, a broader interpretation of procedure, which seems to be discernible in some places in the Superior Court's judgment and in the petitions filed with that Court, would involve a significant development of the law and a blurring of the distinction between negligence, inaccuracy and the law of acts negligent , if not their elimination. In the context of this case, these two approaches present significant differences for the analysis of the waiver clause. Under traditional principles of negligent misrepresentation, a waiver is relevant when considering whether a duty of care has arisen. A waiver is interpreted quite broadly considering whether the defendant may have assumed the risk of error between itself and the plaintiff. However, if the case is brought on the grounds that there is a duty of care due to the proximity of the parties, then the waiver becomes a liability disclaimer or limitation clause to which courts have traditionally applied a very strict rule. It is therefore clear that the way the case is approached can have a significant, even decisive, impact on the outcome.

The decision in Hedley Byrne v. hell
22 The landmark decision in Hedley Byrne v. Heller [1964] AC 465 established the principle that the drafter of a statement may, under certain circumstances, be held responsible for pecuniary damage suffered by a person who relies on it. This principle was adopted almost immediately in Ireland by Securities Trust Ltd. accepted. v. Hugh Moore & Alexander Ltd. [1964] I.R. 417 and Bank of Ireland c. Smith & Ors. [1966] IR 646 and it has since been recognized that the development of Irish law was based on the analysis originally made in that case. Hedley Byrne made an important statement that liability for negligence could in principle extend to negligent acts causing personal injury and consequential damages falling under the principle in Donoghue v. Stevenson [1932] AC 562. However, the House of Lords clarified that where claims for damages are based on declarations rather than acts or omissions, different principles apply. Importantly, the House of Lords also ruled (in fact in this case it was the Ratio Decisionendi) that any duty of care for negligent testimony may be negated by a disclaimer to that effect. For these reasons, Hedley Byrne is particularly relevant in this case.

23 In this well-known case, advertising agents who intended to act on behalf of a company and place ads in advance, for which the agents would be personally responsible, sought information on the financial health of potential clients. They asked the bank to put questions to Heller & Partners, who were the client company's bankers. Heller replied "in confidence and without liability on our part" that the company was found to be "respectfully incorporated and fit for its normal business obligations." It was also mentioned that the bank believes "the company will not make a commitment it cannot fulfill". This information was passed on to the complainant's advertising agencies on the basis that it was "for your own private use and without liability on the part of [the complainant's bankers]". A few months later the order was repeated. At the time, Heller & Partner sent a letter to the complaining bankers entitled "CONFIDENTIAL For your private use and without liability of this bank or its directors" stating that it was "an organized company with a good reputation established for their common business commitments is considered good. Their numbers are larger than we are used to seeing.

24 As is well known, the House of Lords decided that statements such as these can in principle lead to liability, but that this duty of care is negated in this case by the waiver. However, it is worth examining the speeches, particularly those of Lords Reid, Devlin and Pearce.

25 On pages 482-484 Lord Reid explained:

"The applicants' first argument was based on Donoghue v. Stevenson. This is a very important decision, but I don't think it has any direct bearing on this case. This decision may encourage us to build on existing lines of authority, but it does not give us the right to ignore them. Beyond authority, I believe the law should treat careless words differently than careless actions. The law must reflect as far as possible the standards of the reasonable man, and that is what Donoghue v. Stevenson. The most obvious difference between careless words and careless deeds is this. Very cautious people often express certain opinions in social or informal settings, even when they realize that others are likely to be influenced by them; and they often do so without the diligence they would ask for their opinion professionally or in a business relationship. The complainant agrees that there can be no duty of care on such occasions and we have been referred to the US and South African authorities where this is recognised, although their right appears to far exceed ours. But it's at least uncommon to casually circulate dangerous, carelessly crafted items. A man can give a friend a carelessly prepared bottle of home-made wine, and his friend's guests can drink it with dire consequences. But it's not clear these guests wouldn't do anything about the negligent manufacturer.
Another obvious difference is that a negligently manufactured item only causes one accident, so finding the required level of closeness or closeness between the negligent manufacturer and the injured person is not too difficult. But words can be transmitted with or without the consent or foresight of the speaker or writer. It would be one thing to say that the speaker has a duty to a limited class, but it would be going too far to say that he has a duty to every last "consumer" who acts to the detriment of those words. It would not be good to say that a speaker or writer has a duty, but they can decline responsibility if they wish. He could be a party to the contract, like the manufacturer, who is not responsible for his negligence: but that contract would not protect him in a matter with a third party, at least if the third party were unaware of it.

So it seems to me that there is common sense behind our current law that in general an innocent but negligent misrepresentation gives no cause for action. There has to be more than one wrong statement. So I'm reaching out to the authorities to see what else is needed. The most natural premise would be that the speaker or the writer has assumed some responsibility, either expressly or by circumstance, and that does not seem to me to be contrary to any authority in this House. Where there is a contract, there are no difficulties with the contracting parties: the question is whether there is a guarantee. English law's refusal to recognize a jus quaesitum tertii raises some difficulties which are not relevant here. Then there are cases when a person not only makes a statement, but provides a free service. I don't want to go into the cases in this regard, but they at least show that in some cases that person has a duty of care outside of a contract, and to that extent open up the possibility of arguing that there may be a duty of care in making a non-contractual fact - or expression of opinion". (emphasis added)

26 I have explained this passage at length because it makes it clear from the outset that there is a clear distinction between liability for negligence and liability for fraud. Lord Reid's reference to contracts and cases where English law has refused to recognize the rights of a third party to perform contracts is also instructive as it provides an important point of comparison against which any duty claim must be analyzed. Care. Again, the emphasis on taking responsibility for a statement is important. This leads to the part of the speech that sets out the policy resolution on p. 486:
"A reasonable man who knows that he is trustworthy or that his ability and judgment are trustworthy would have three paths open to me, I think. You can remain silent or refuse to provide the requested information or advice: or you can provide an answer with the clear qualification that you accept no responsibility for it or that it was given without the thought or question that would require a careful answer : either you could simply answer without such a qualification. If you decide to go the latter route, I think you should consider that you have taken some responsibility for giving your answer carefully, or that you have entered into a relationship with the asker that requires you to answer the question to exercise due care under the circumstances.
27 This analysis led to the important conclusion that the Court of Appeals decision in Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164 was wrongly decided and that Denning L.J. it was right. In this case, a company's accountants were asked to complete the creation of the accounts to show to a potential buyer. The accountants went further and showed the bills to the buyer, discussed them with him and allowed him to take a copy. Under the circumstances, Lord Reid thought, there arose a duty of care. This, too, is perhaps an important example of the circumstances in which liability can arise: the accused accountants did more than produce general accounts that could be considered by the whole world; They had entered into a face-to-face interaction with the author about the terms of the accounts, and they did so in the specific context of the author's likely purchase of the company.

28 However, after Lord Reid had determined that a duty of care could in principle result from the statements made, he found that such a duty did not exist in the specific case due to the terms of the waiver. In doing so, he made an important distinction between waivers in such cases and a cessation clause intended to relieve a party of liability incurred in contract or already in tort (on page 492):

“The complainants invoked a number of contractual cases where very clear language was required to preclude the duty of care that would otherwise have flowed from the contract. I think there are two answers to this argument. A contract must exclude liability for negligence, but the issue here is whether an obligation to exercise due diligence can be inferred, and that is a very different issue. And second, even in contractual cases, general words may suffice when no liability other than liability for negligence can be excluded: the general rule is that a party is not exempt from liability for negligence 'unless appropriate words are used According to Scrutton L.J. in Rutter v. palmers Assuming an obligation to answer honestly here, I do not see what other liability could be excluded, apart from liability for negligence: since there was no contract, there was no guarantee.
So I understand that it is evident that respondents never exercised any due diligence when providing their answers. The complainants can only succeed where there is such a duty and therefore, in my view, this complaint must be dismissed.”

29 Lord Devlin's speech went in much the same direction. On pages 524-525 he noted:
"Now, in my view, it is not a sensible application of what Lord Atkin has said, that a judge should be asked on the facts of a particular case to say whether or not there was a 'closeness' between the plaintiff and the accused. That would be a misuse of a general term, and that is not how English law develops. What Lord Atkin did was use his common sense to open a category of cases giving rise to a special duty...
The True Value of Donoghue v. Stevenson's argument for this case is that it shows how the law can be developed to solve specific problems. In this case, is the relationship between the parties such that it can be placed in a category that creates a special obligation?

30 On pages 528-529 of the Report, Lord Devlin made the important point that the lack of a contract is not crucial as there may be circumstances in which a person or entity derives indirect benefit from the provision of information outside of a contractual relationship , and therefore it was perfectly reasonable to state that the duty of care had arisen:

"I therefore believe that it is sufficient to justify Your Excellencies if you now say that the categories of special relationships which may give rise to a duty of care, both in letter and in fact, are not limited to contractual or fiduciary relationships. duty, but also include relationships which, according to Lord Shaw in Nocton v. Lord Ashburton, are 'equivalent to a contract', that is where there is an assumption of responsibility in circumstances where a contract would exist if there were no consideration. Where there is an express promise, an express guarantee as opposed to a mere representation, there can be little difficulty. The difficulty arises from distinguishing the cases in which the obligation must be implied. The lack of consideration is not insignificant. Paying for information or advice is very good evidence that it is reliable and that the informant or adviser knows this. Where there is no consideration in return, a greater distinction must be made between social and professional relationships as well as between contractual and non-contractual relationships. It can often be important to consider whether the advisor is acting out of goodwill or is being rewarded in some indirect way. The service that a bank offers through a referral is not provided simply out of a desire to facilitate commerce. It would discourage the bank's customers if their business failed because the bank refused to testify about their creditworthiness."
31 Lord Devlin, while acknowledging that the categories could be broadened, approached the case on the basis that 'wherever there is a relationship which amounts to a contract, there is a duty of care'. As he said on page 532:
"The question is whether complainants can assert a contractually equivalent claim and invoke an implied obligation to assume responsibility."
With regard to the facts of the present case, however, it stated that there was no assumption of responsibility and therefore no duty of care. On page 533 he said:
“I fully agree with the reasoning and conclusion of my noble and learned friend Lord Reid on this point. A man cannot be said to voluntarily accept a responsibility if, in the moment he is told he accepts it, he declares that he does not really accept it. The problem of reconciling the word of exemption with the existence of an obligation only arises when a party claims exemption from a responsibility which it has already assumed or undertakes to assume.
32 Lord Pearce also addressed the argument that the waiver in this case was not precise enough to exclude liability for negligence. On page 540 he said:

"However, nothing but negligence could give rise to liability in this case (apart from intent, which they might not mean to refer to and against which words would offer no protection as they would be part of the fraud ) Therefore I do not accept that words, even if the parties were already in a contractual or other special relationship, would not confer immunity from negligent reaction, but in any case they clearly prevent the formation of a special relationship. They are part of the material showing that a duty of care and liability for negligence has been assumed when both parties expressly state (in a case where neither willfully exploit the other) that liability is excluded, it doesn't seem to me possible to speak of assuming responsibility."
33 The decision in Hedley Byrne v. Heller was registered as Irish representative in Securities Trust Ltd v. Hugh Moore & Alexander Ltd. [1964] I.R. 417. In Bank of Ireland v. Smith & Ors [1966] I.R. 646, a land sale notice in a foreclosure court erroneously stated that part of the land was planted with barley and used as permanent pasture. The statement was made by auctioneers who were agents of the sellers. Kenny J. contended that it would be against the conscience of the seller in a legal sale not to be bound by a representation made by the agent in connection with the sale. Consequently, the buyer was entitled to claim damages for breach of warranty by the seller. Kenny J., however, dismissed the further allegation that auctioneers were liable for tortious liability for negligent misrepresentation, saying on page 659:

“It has been said that an auctioneer acting on behalf of a seller must ensure that the buyer will rely on any statement he makes about the property and that he therefore has a duty of care to the buyer and is liable for any damages. if the information was provided incorrectly and negligently. In my opinion the decision in Hedley Byrne & Co. v. Heller does not support this surprising claim. He believes that where a person seeks information from another person in circumstances where a reasonable person would know their judgment would be relied on, the person providing the information must use reasonable care to ensure that her answer is correct, and if not what she is liable for damages: But the relationship between the person seeking the information and the person providing it must if not on a fiduciary basis or in breach of contract Consideration gives, to use Lord Devlin's words, 'equivalent to a contract previously any liability may arise'.
It is clear from these extracts that the approach to any negligent misrepresentation disclaimer, at least initially, was to consider it as evidence relevant to the question of whether a sufficient relationship existed to establish a duty of care. , and that it is inappropriate to approach a disclaimer with the rigor with which courts examine disclaimers intended to exclude existing liability.
34 The law has evolved since then and there are some telling examples of successful buyers taking legal action against real estate agents allegedly acting on behalf of sellers. In McAnarney v. Hanrahan [1993] 3 I.R. 492, Costello J. admitted a plaintiff's complaint against an auctioneer regarding statements made during a sale. In this case, the defendant had significant interactions with the plaintiff, falsely telling him that the furnishings had been removed at auction for a price and that the owners had also indicated their willingness to sell them for around £3,000. In those statements, the plaintiff agreed to pay £55,000 in interest on the rent, although he had previously intended not to pay more than £45,000. The purchase was disastrous for the plaintiff, who filed a fraudulent misrepresentation lawsuit. Costello J. contended that the treatment between the parties created a special relationship between them that imposes a duty of care on the defendant auctioneer in communicating information. This is an example of a situation where an auctioneer or real estate agent may have a duty of care to someone other than their client. Here, however, liability arose as a result of fairly extensive dealings with the plaintiff in circumstances where, to borrow Lord Devlin's analysis, the plaintiff, while not formally a client of the agent/auctioneer, had a relationship which indirectly benefited the agent/ Auctioneer. Consequently, the originator was entitled to reclaim, but only the difference between the price paid and the actual value of the property. Likewise in McCullough v. Gunne, (Unreported, Superior Court, Carroll J., Jan. 17, 1997), the Superior Court found that plaintiffs who had never dealt in real estate before went to the defendant auctioneer/agent and "asked him to do things to keep in order". , the auctioneer owed them, and the owners of the property for which he was acting, a duty of care when the plaintiffs acquired it. In none of these cases was it based on a disclaimer and the negotiations between the parties went well beyond the provision of standard sales details. Both cases therefore agree that the duty of care does not in principle result from the fact that an auctioneer could have acted for a seller, but the special treatment between the parties has established a special relationship in the facts of a special case. Doran v. Delaney [1998] 2 I.R. 61 is a variation on this theme. In this case, the seller's lawyers had an exceptional duty of care towards the buyer when, as the reasoning of the judgment states, they provided information "that had reason to believe that it was not entirely true". .

McCullagh against Lane Fox and Partners Ltd.

35 The case which comes closest to the facts of the present case is perhaps an English case mentioned incidentally in Doran v. Delaney [1998] 2 I.R. 61. In McCullagh v. Lane Fox and Partners Ltd. [1996] PNLR 205, a real estate agent, provided details of an important private residence in London on the Thames. The home was described as being situated on .92 acres. In fact, the gardens were only 0.48 hectares. The plaintiff acquired the property but later sued the brokers for negligent statements. The data contained, as the footnote of the notified decision stated, "typical disclaimers for real estate agents". It is right to recognize that in the present case these were longer than the disclaimer. The disclaimer has thus been substantiated in five paragraphs:

"1. This information is not part of an offer or contract.
2. All information contained in this information about this property is provided without liability on the part of Lane Fox or the seller or lessor.

3. None of the statements contained in these details regarding this property should be construed as statements or representations of fact.

4. Any prospective purchaser must verify, by inspection or otherwise, the accuracy of any statement contained in these details.

5. Sellers make no representations or warranties in connection with this property and neither Lane Fox nor anyone at Lane Fox is authorized to do so.

36 The High Court of England and Wales held the defendant liable, applying the principle of Donoghue v. Stevenson and claimed that the notice was not precise enough to exclude liability in this case. The defendant was a reputable company of competent surveyors who could be expected to properly survey the site; the purpose of providing the information was to encourage offers from potential buyers; that the plaintiff would rely on the information was obvious and reasonable to the defendant. Under the circumstances, there was nothing that made it unreasonable to hold the defendant liable. However, the court also found that the plaintiff had not suffered any damage since the actual value of the premises corresponded to the price paid by the plaintiff.
37 The Court of Appeal for England and Wales reversed both findings. Of particular importance for the purposes in question is that the Court of Appeal found that the exclusion of liability precludes any assumption of liability and thus any duty of care. Citing Hedley Byrne v. Heller [1964] AC 465, Hobhouse L.J., continued at pp. 222-223:

Thus, the relevance of the period of responsibility is negatively one of the essential elements for the existence of due diligence. Negative acceptance of responsibility for the statement. It implicitly tells the recipient of the representation to be aware that if the author chooses to trust it, he accepts no responsibility for the accuracy of the representation. The waiver is part of the facts that the court must consider in determining whether or not the defendant had a duty of care to the plaintiff. In other words, the question is whether the plaintiff had the right to treat the representation as if the defendant had accepted responsibility. That is primarily a factual question.”
Subject to the caveat that the question of whether these facts give rise to a duty of care becomes a question of law once the facts are established, I concur with that analysis. It is an orthodox application of the decision in Hedley Byrne v. Hell.
38 It is of some interest that the Court of Appeals upheld, however, that part of the Superior Court's decision (adopted in Doran v. Delaney) which found that a potential buyer could in principle co-exist with a contractual liability of the seller-buyer. At pages 230-231 Hobhouse describes L.J. understood:

“In this situation, the apparently fair outcome is that the ultimate responsibility for making good the buyer's harm must fall on the unjustly enriched person, ie the seller. However, it does not follow that if for any reason the seller is unable to compensate the buyer for the damage, the buyer should not be compensated by the person who is really at fault, the lawyer or other representative who is responsible for the made a false statement...
There may be problems where the agent's carelessness results in his principal's property being sold at an inflated price, but they are not avoided by refusing to acknowledge the agent's wrongdoing through his own fault; and there may be instances where negligent representation by attorneys has caused other types of harm to the buyer that do not bring equivalent benefits to the seller.”

39 Hobhouse L.J. conceded on page 224 that in cases such as Smith v. Bush [1990] 1 AC 831 and Caparo Industries v. Dickman [1992] 2 v. 605 there was some criticism of the importance of the concept of taking responsibility, but this was addressed by Lord Goff of Chieveley in Henderson BC. Merrett Syndicates Ltd. [1995] 2 of 14, in an important passage on page 181 explaining the meaning of the term in analyzing the law of negligent wrongness:

“Furthermore, the concept provides its own explanation as to why liability for purely financial losses is not a problem in such cases; for if one person is responsible for another in relation to certain services, there is no reason why he should not be held liable for the damages of those others in relation to economic losses resulting from the negligent provision of those services. It follows that once the case is determined to fall under the Hedley-Byrne principle, no further investigation should be required as to whether it is "fair, just and reasonable" to impose liability for economic loss, a point that is, I consider to be of some importance in the present case. The concept also points out that under certain circumstances, for example if the promise to provide the service in question is informal, no assumption of liability can take place and the assumption of liability can also be overridden by a corresponding exclusion of liability.
This passage reaffirms the continuing relevance of the notion of assumption of liability and the importance of disclaimers in determining whether liability has been assumed.
40 Applying this principle to real estate agents making a property declaration, Hobhouse L.J. the structure of the transaction is taken into account. He continues on page 235, pointing out that brokerage fees can in many cases be paid indirectly from the purchase price and therefore nothing in principle stands in the way of the duty of care:

“In a land sale transaction it is normally considered that there are pre-contractual consultations which are used by the prospective purchaser to obtain specific representations verifying relevant facts. Likewise, parties often hire a surveyor to conduct structural studies before deciding to bid or exchange contracts. It does not follow, then, that a representation, even if aimed at influencing the represented, is asserted in the relevant way without any intermediary control. Therefore, the importance of representation in the transaction needs to be further investigated. This is not a special feature of real estate agents and also does not constitute a special principle of qualified liability for real estate agents.”
41 In this particular case, Hobhouse L.J. He believed the notice linked case four to the decision on Hedley Byrne. He then addresses the counter-argument on page 237:
“The judge avoided that conclusion by treating the disclaimer as if it were a contractual disclaimer. This approach would have to be interpreted narrowly and it has been argued that it is not an oral statement as such. But I don't think that's the right approach. It is not an exclusion that should be interpreted. The correct approach, as Hedley Byrne has pointed out, is to treat the existence of the disclaimer as one of the facts relevant to determining whether the Defendants assumed responsibility for the statement in question. This question must be answered factually in terms of what a reasonable person would have understood in Mr McCullagh the moment he finally relied on the testimony. In this regard, it is clear that the statement that the area of ​​the property is 0.92 was a statement extracted from the statements and that the defendants did not accept responsibility for that statement.
42 Hobhouse L.J. also noted on page 239 that:
"The normal structure of property purchase agreements is that, prior to the exchange of contracts, the prospective purchaser may question the proposed seller through his own counsel and is entitled to rely on the responses to such inquiries as representations of what gave rise to the contract with all legal ramifications that arise from this situation. The use of disclaimers to isolate the agent and agents' directors from liability for representations made by agents is common and the normal basis on which real estate sales transactions are conducted. every day across the country."
43 Hobhouse L.J. that the waiver was not an unfair contract term. While this specific question does not arise in this case because the author was not acting as a consumer here, I believe it is relevant to the general question of whether there is or is a waiver of due diligence under this statute. . As I said before, the closeness of the parties here is established by the contract between buyer and seller and possibly the contract between the seller and his agents. It is relevant to know how these contracts allocate the risk of error. Finally, it is noteworthy that Nourse L.J. was ready, Slade L.J. agree. even if no duty of care has arisen without a reminder.

44 This is obviously an important case and if it reflects Irish law correctly it is a strong authority against the plaintiffs in this case. . It is important to recognize that it is not possible to distinguish McCullagh simply on the basis of the fact that the waiver was made broader than the waiver in this case. Perhaps McCullagh's plaintiff recognized the difficulty presented by the notice and focused solely on an oral statement of the acreage given to the plaintiff when he inspected the property and before receiving the printed details. This case is therefore decisive for the further application of the in Hedley Byrne v. Heller [1964] AC 465, where termination is not to be seen as a termination clause but as part of demonstrating that a risk has been taken and a duty of care has been incurred.

45 The limited point made by Plaintiff/Defendant is not intended to argue that Irish law differs in any way from that in Hedley Byrne and McCullagh v. Lane Fox and Partners Ltd. Rather, the admittedly less clear and less detailed formulations in the notification here are simply not sufficient to exclude or avoid liability. However, for the reasons already mentioned, this does not seem to be the right way to go. The disclaimer is not intended as an attempt to exclude any pre-existing liability, whether in contract or in tort, and shall be construed strictly accordingly. Rather, it is to be seen as proof of whether the broker commissioned by the seller has assumed responsibility for the correctness of the contractual statements vis-à-vis the plaintiff buyer (without regard). Detailed report. This is to be assessed in the light of all the facts and in particular the structure of the transaction, which takes place in a relationship between each of the contractually controlled parties on familiar and well-understood terms. What is relevant, I believe, is that the special relationship and assumption of responsibility should arise from the terms of the publicly available details and not from any particular interaction between a Jones Lang Lasalle employee and the author. It is also relevant that the general structure of the transaction is one where the agent acts on behalf of the seller and has obligations towards him. Here, too, it is not insignificant that the buyers obviously did not receive any contractual, warranty or other provisions regarding the size of the systems. It would be unusual for an agent to assume gratuitous liability where the principal who received consideration did not do so. Again, while this is a sizeable trade that may incur significant brokerage fees (recommended in the order of 1.5%), it is important to note that the element of this fee that should represent a profit for the broker is only a small fraction of that constitutes potential liability here, at no cost. Again, it would be unusual for an agent to voluntarily take that risk. In this context, I can no longer see the disclaimer as a statement, unsurprising to anyone involved in real estate, that Jones Lang Lasalle was not responsible for the accuracy of the information contained in the details.

46 I think this conclusion can be tested in a number of ways. Undoubtedly, the author's argument is reinforced by the fact that the error here is related to the measurements that would correspond to the agent's area of ​​activity and responsibility. But the details aren't limited to the dimensions, which in this case has been the focus of almost all attention. Details of tenure, zoning, development potential and likely vacant tenure are provided, among many other things. However, it is difficult, if not impossible, to read the details, including the disclaimer, in the familiar context of the transaction and its well-understood structure as an agent's assumption of responsibility in relation to these matters. But if this is the case, then reading the details is just as, if not more, difficult than just being responsible for measurement errors. This distinction is not apparent from the disclaimer. Likewise, given the significant amounts involved in real estate transactions, it makes little sense to understand that Jones Lang Lasalle disclaims any duty of care in relation to minor matters, but accepts responsibility for errors (however large or minor) that may result in a very wide responsibility. There is an additional feature that is difficult to consider, if the author is right, mentioned in McCullagh v. Lane Fox and Partners Ltd. In the event that a buyer has been tricked into overpaying for the facility and now needs to be compensated, the natural source of that compensation is the seller, who, at least in this scenario, has been unfairly enriched by paying more than his fair Amount received has share in the endowment. In the event of a contract claim, the claiming buyer can recover this amount from the seller and, if the agent is responsible for the error, the seller can recover the consequential costs. However, if the broker has an independent duty of care, the seller in this scenario has an undeserved profit from the broker paying damages to the buyer. This inconsistency of remedies, while not fatal to the plaintiff's case, is at least worrying and requires treatment.

47 I accept that on a strict reading it could be argued that the indication that "every precaution" was taken is itself a form of showing that that care was taken, which in this case probably was not the case. . However, I think it is an overly legalistic interpretation of the clause, aimed at refuting it rather than understanding it in context. You must read the disclaimer fairly and completely. If read as not excluding, but positively accepting, the risk of error due to negligence, it becomes not only surprising but superfluous, since such a duty would likely arise without any indication. Here, too, given the very narrow approach to liability waivers, it can be said that the liability waiver here can exclude contractual liability for errors that are not our fault, but not liability for negligence. But such an interpretation is highly implausible. Why would a party, in drafting an indemnity, seek to exclude liability from a contract it does not have, but not exclude, even positively, the only liability that might arise from a party with which it does not have a contract accept? Who controls the terms of the relationship? Again, it can be said (although I believe this has not been argued) that the fact that the disclaimer uses the passive voice may mean that it was intended to exclude the contractual liability of the broker's principal, in this case the seller . Again, however, this is highly implausible, particularly when interpreted to exclude possible contractual liability on the part of the seller that did not in fact materialize but accepts direct liability on the part of the agent (and for which the agent receives no payment from any of the parties) for an error attributable to negligence. Due diligence cannot be taken out of context or separated from the sentence structure in which it occurs. In my opinion, the most reasonable interpretation of the disclaimer, and therefore as understood at the time, was that although Jones Lang Lasalle stated that he took great care in preparing the details and that I believed them to be correct if I did not, and /or if the dates are wrong I am not responsible. If the detail of the data is important to a potential buyer, he should verify it independently or risk inaccuracies.

48 Evidence here that the parties did not routinely verify the measurements (although creditors appear to request such details) and that no one in this case went back to the suppliers or to Jones Lang Lasalle to suggest that the measurements were incorrect ( suggesting that none of the other potential buyers measured the installations) does not, in my view, lead to the conclusion that there was a general assumption in this market that agents take responsibility for the accuracy of the data. These facilities were marketed for a development opportunity that was undoubtedly the primary factor in determining their value. There is no evidence that another buyer considered the premises as a rental opportunity, much less that the numbers were considered critical to the value of the offer. In fact, if the rental value of the property determined its market value, it is difficult to understand how Jones Lang Lasalle's initial advice deviated so far from the price eventually realized. All of this evidence may offer a fresh perspective on how the real estate market was evolving even in the early 2000s, but they cannot, in my view, go so far as to justify an assumption of responsibility on the part of Jones Lang Lasalle or other agents. Obligation to observe data generally available on the market without further ado.
A broader approach
49 However, reading the Superior Court's judgment, it can be said that the Superior Court took a broader approach that could have important consequences for malpractice law in general. Reject an argument based on Caparo Industries Plc. v. Dickman [1990] 2 AC 605 and based on the Supreme Court decision in Wildgust & anor v Bank of Ireland & anor [2006] 1 IR 570 the High Court held that “[p]rima facie therefore the relationship between the plaintiff and the defendants were close enough to establish a "special relationship" of the kind found by the Supreme Court (Geoghegan and Kearns JJ.) in Wildgust." On behalf of Jones Lang Lasalle, it has been argued that the disclaimer implied the existence of a special relationship and, moreover, is justification for denying the existence of due diligence on the basis of the third element in Caparo (and accepted in Glencar), knowing that it was an element that made it unfair, unfair and unreasonable to impose a duty of care . The BGH denied this and, assuming a duty of care, prima facie asked the question:

“In my view, the question to be addressed in relation to the 'waiver' is whether its presence in the prospectus and its precise terms are sufficient to exempt the defendant from liability to the plaintiff in relation to the defendant's negligence in measuring the area's value of the property and the culpable error of the defendant in publishing the incorrect dimensions of the property area. Based on the evidence, I don't think it's sufficient."
50 In this reading, the judgment combines a claim for negligence (when measuring or not measuring) and culpable error (contained in the data). The analysis then assumes that there is due diligence and the question arises whether the waiver is sufficient to preclude that due diligence. This, of course, is the analysis applicable to a disclaimer intended to limit contractual or tortious liability. From this analysis it is only a small step to the conclusion that the waiver clause is insufficient here. In the following paragraph, the judge of the STJ stated:

"If the defendant wished to reserve the right (a) to publish in its sales prospectus precise measurements which in reality were grossly inaccurate, and (b) to disclaim liability for the addressees of the prospectus and its contents, the defendant was obliged to inform the plaintiff and to alert other potential buyers that the published apparently accurate measurements were likely unreliable and should not be relied upon under any circumstances.
Defendant failed in that obligation by including a cryptic phrase in the fine print of its prospectus, which purported to have taken particular care in preparing all the details of the prospectus but advised prospective buyers to "verify the accuracy of the information provided."

51 I think it is clear that the judge did not want to offer an interpretation of the waiver, but simply considered it ineffective to prima facie exclude a duty of care. As noted, this is intended to apply the standardized approach to contractual exceptions designed to exclude liability otherwise existing, whether in contract or tort, and as such this approach represents a significant (albeit unrecognized) departure from the analysis in Hedley Byrne v . Heller [1964] AC 465, where the waiver is considered merely part of the evidence of whether a duty of care has arisen at all. The Supreme Court's approach appears to be based on blurring the distinction between liability for a negligent act and liability for a negligent testimony, which existed in Hedley Byrne v. Heller and the subsequent case law and refer to the decision of the BGH in the Wildgust case.
52 I have no doubt that resolving standard damages claims, which are decided daily in civil courts, does not require careful scrutiny of legal analysis or precise language or reference to case law. If the role of this Court was simply to make an overall assessment as to whether a particular provision should be upheld in such a case, then there would be no real difficulty with the outcome in this case. If, as presentations sometimes seem to suggest, it were reduced to a form of reverse beauty pageant between a buyer/investor, based on a back-of-the-envelope estimate based on information he himself did not order or pay for, Bidding on a substantial property for and a professional company that has provided erroneous measurements can be a difficult decision, but it may favor the individual investor over the corporate entity, albeit half-heartedly. But I do not believe that the role of this Court can be reduced to examining individual cases on a basis that can be plausibly considered fair, or at least not manifestly unfair. Namely, if no plausible case could be presented for both parties to a case, the parties involved would rarely be involved in costly litigation. If that court were only required to draw broad, ad hoc conclusions about similarly far-reaching individual first-instance judgments, the case-law in this area would quickly become little more than a normally stigmatized exercise of unlimited discretion. justice under the law. The jurisprudence in this area would quickly become little more than what Tennyson criticized as "countless precedents without code, this desert of individual instances". This is more than an objection that the law cannot conform to a comfortable intellectual standard. If appellate court decisions are only individualized findings based on a general legal opinion, then in principle all cases would have to be appealed, since the probable outcome in each case could only be predicted by a layman. Process of psychological prediction at a certain distance from legal analysis.

53 But as I understand it, the role of this Court is to use the discipline, structure, clarity and focus that the individual case affords to review the law in a way that allows the issues to be resolved without significant cost in terms of time and money Litigation and Appeals in Other Cases. Results must not only be safe and predictable, but also encourage rational, efficient and fair behavior. Therefore, in my opinion, a closer look at the analysis offered here is required.

54 First, I do not think that the difficulties in this case can be avoided by treating it as an act of negligence, to which the general principle in Donoghue v. Stevenson. In many cases of negligent violations, a previous, allegedly negligent act can be established. Therefore, the accountant who falsely certifies a company's accounts may not have adequately investigated the matter or misanalyzed the available information (Capo Industries v. Dickman [1992] 2 A.C. 605, Candler v. Crane, Christmas & Co. [1951] 2KB 164). The banker who mistakenly claims that a company is good for the debt it may incur may not have properly researched its financial situation or misinterpreted available information. (Hedley Byrne v. Heller [1964] AC 465). Yes, like Keane C.J. In Glencar it is wrong to speak of someone who is abstractly careless. A negligence according to the law means a breach of an existing duty of care. Assuming for the time being that the defendants were negligent in measuring (or not measuring) the premises in this case, they owed no obligation to potential buyers if they did so and caused them no harm. result of that act or omission, without further ado. Any contractual or non-contractual obligation was due to the customer at that time. The question of the obligation of a potential buyer, including the beneficiaries, and the question of any damage that may have arisen only arose when the result of the valuation was included as a declaration in the prospectus and handed over to the potential buyers. In fact, this conclusion can be verified by considering that if the statement had not been made and made available to potential buyers (quite obviously because it was included in Jones Lang Lasalle's brochure), it could not be said that from it a claim could have arisen author. . , although Jones Lang Lasalle was extremely careless in measuring. In my opinion, the case should be analyzed as a culpable error.

55 I also consider that the argument attributed to the defendant in the judgment that the disclaimer as the so-called third part of the system introduced in Australia in Sutherland Shire and in the United Kingdom in Caparo Industries v . Dickman [1992] 2 v. 605 and in that jurisdiction by Glencar Explorations p.l.c. v. Mayo County Council [2002] I.R. 84, that is, if it was fair and reasonable to impose a duty of care, it was useless. Caparo does not imply any disclaimer. Indeed, if the auditor's statement of statutory accounts, which gave a true and fair view of the Hubier firm's affairs, contained a disclaimer (provided that it was legally possible to do so), it was likely that the problem in Caparo was this did not arise at all. . The question in the Caparo case was whether the very special circumstances created in this case by a company's legal obligation to engage an auditor and that that auditor must render an opinion as to whether the financial statements present a fair and accurate picture of the affairs of the company could result in a duty of care for parties who have invested in or may have acquired a company based on the financial picture presented by the financial statements. The House of Lords considered that in the circumstances, even where sufficiently close, it would not be fair or reasonable to assume that accountants in these cases had a duty of care to third parties with whom they had no contractual relationship. It is entirely possible that some of the factors that were secondary in this analysis are also relevant to the present question. Here, however, the question arises as to whether, particularly with regard to the disclaimer, there was actually sufficient proximity to justify a duty of care. It was the prospectus that created the potential relationship between Jones Lang Lasalle and the complainant and the question was, given the terms of the prospectus, whether such a relationship was established in such a way as to create a duty of care for Jones Lang Lasalle towards the complainant responsible for any errors in the data.

56 I also think it is fair to recognize that, while I do not think this case can be treated as liability for a negligent act, it does not rule out Wildgust's argument. The author tried to put the case on a slightly different basis. It has been argued that Wildgust now allows a court to hear a case of negligent misconduct on the same legal basis as any claim of negligent misconduct, and consequently the traditional questions raised in the area of ​​negligent misconduct, such as: E.g. the relationship particular, accountability, trust etc. They could be omitted and the issue dealt with simply on the grounds that the relationship creates a duty of care and whether the liability waiver has successfully eliminated any liability for breach of that duty. This would, of course, be a great departure from the law believed to have come from Hedley Byrne v. Heller [1964] AC 465 and subsequent cases in that jurisdiction. However, this reading of Wildgust has received some impetus from some commentary on the case, and consequently it is necessary to take a closer look at this decision.

57 The events in Wildgust were highly complex, unusual and far removed from the situation in this case. Therefore, the case can only be relevant here if it is understood as establishing a principle (or a refinement of the principle) of general application. The first named author, Mr. Wildgust, was a director of a company ("the Company"), who was the second named author, and who borrowed money from banker Hill Samuels ("HS"). Security for this loan was a personal guarantee from Mr Wildgust and his wife, who were in turn supported by life insurance policies taken out with Norwich Union ("the Insurers") at the Bank's request for Mr Wildgust's life. Wildgust and his wife and that they were mortgaged to the bankers. This is obviously a common arrangement. The prizes were paid by direct debit to the company's bank account with Bank of Ireland. There was thus a rather complex relationship between the complainant, his wife, the company, the bankers (Bank of Ireland) who made the direct payment to the Norwich Union insurer and finally the bankers (HS) to whom they had made the advance payment Network of legal relationships Loan guaranteed by personal guarantees, the same supported by insurance policies.

58 Apparently, due to a problem with the direct debit, the premium was not paid at one point. The insurers informed the Bank (HS) (but not the plaintiffs or Ms Wildgust) that the premium had not been paid and that otherwise the policy would lapse. This was particularly relevant as Mrs. Wildgust was unfortunately in poor health and had been diagnosed with cancer. A HS manager contacted Mr. Wildgust who assured him that the price had been paid by postal order. In fact, this transfer was (it seems) paid back to the second complaining company mentioned as an overpayment. It is commendable that HS still appears concerned and the bank manager contacted the insurance company and was assured (apparently in good faith but incorrectly) that the premium had been paid and the policy was in force. That was actually the bug that Mr. Wildgust was working on. Consequently, the bank director took no action or attempted to ensure that Mr. Wildgust's or the company's premium, nor has it exercised the bank's right to make premium payments to maintain the policy. If HS had been informed that the premium had not been paid, it would have paid the premium to keep the policy alive. Information that insurers believed the policy to be fully effective became Mr. Wildgusts. Unfortunately, his wife died in time, but the insurers refused to pay out the policy because it had expired due to non-payment of the premium. Mister. Wildgust and company filed lawsuits against several defendants, which ultimately resulted in a lawsuit against the insurers. The initial procedures were somewhat confusing, and in fact the negligent misrepresentation claim was only added after a successful appeal to the Supreme Court allowed the claim to be amended. When this case came before the High Court, the plaintiff's claim against the insurers was dismissed because, while the insurers had been negligent in assuring HS that the policy was valid and as a result HS failed to claim or pay a premium itself, the insurers' explanation became was not disclosed to HS to the plaintiffs and therefore the plaintiff, Mr. Wildgust and his company could not be found negligent in the statement. On appeal to the Supreme Court (Denham, Geoghegan and JJ Kearns.) the plaintiff's appeal was allowed. Geoghegan and Kearns JJ gave comprehensive and thoughtful judgements.

59 First of all, I have to say that I have little doubt that the outcome at Wildgust was fair and just. But it also shows that the legal analysis was complicated. There may be many potential avenues that would allow plaintiffs to recover from the insurance company, although some of them may have required a degree of novelty. It may be correct to view the case as a negligent error and it may be that in future years it will be possible to place this case in its proper place in this jurisprudence, either as an outlier representing a very specific finding, dependent on certain facts and oddities, or as an important straw in the wind supporting a new and broader approach, or something in between. But I think it is clear at this point that Wildgust cannot be taken as justifying a single, one-size-fits-all approach to all cases of negligence, whether negligent action or misrepresentation, and discarding traditional considerations like closeness and responsibility for such a form. that this case can be treated as a case of due diligence and the only relevant consideration is whether liability has been successfully excluded by the terms of a termination clause.

60 First and most obviously, Wildgust was not treated by the Court as a substantive revision of the general negligence law. If the case had required such practice, it would not have been tried in a Trial Court, and if the Court had found that material issues of principle had been raised, the case could have been adjourned to be tried in a Trial Court. higher court. Indeed, as Geoghegan J. observed, "The facts of the case were highly unusual, and no cases sufficiently analogous to be useful were reported." The case depended on these unusual facts and was, at best, accepted by the court understood as a modest extension of existing law to accommodate the difficulties arising from the almost unique circumstances raised in this case. Geoghegan J. found that the concepts of misrepresentation and negligence present in English case law, such as reliance, acceptance of a risk, special relationship, relation to contract or even, as he put it, the 'will-o' -o" from "close" may not be as necessary. However, that remark was immediately followed by a statement that he was willing to assume for the purposes of the case "that the negligent errors statute is a separate statute from the negligent acts statute." In addition, serious cases such as Hedley Byrne v. Heller, and they certainly don't suggest that the analysis was completely discarded in this case.

61 The central issue raised in Wildgust, and the issue over which he has authority, is that of trust. That was the point where the plaintiffs failed in the Supreme Court and succeeded in the Supreme Court. Indeed, the Supreme Court's decision was that in the special and unusual circumstances of the case, the plaintiff was not required to show personal reliance on the security given by the insurers to the bank from which the primaries had been paid, as the policy was in force. Of course, another way of looking at this case is that due to the close relationship between the plaintiffs and the bank regarding the insurance policy, the plaintiffs have a community of interest with the bank and have a right to trust the current representation of the bank. , and their bank dependency. But whichever way you look at it, it is clear that the case is relevant only to the assertion that there is no need for individual trust on the part of the plaintiffs in a particular situation, as in the case of Mr. Wildgust. In fact, the case is not relevant to the statement that trust is not necessary. Instead, it found that the plaintiffs in this situation were entitled to invoke HS's reliance on the guarantee provided. It goes without saying that in the case of negligent inaccuracy, there is no need to check whether the person making the declaration has assumed a risk or, more generally, whether the circumstances are suitable for justifying a declaration. due diligence

62 Even if Wildgust were interpreted in its broadest form as perhaps suggesting that by analogy with the decision it could in any event waive the requirement of liability in this case, which I believe would be the case of this case the plaintiffs have not used so far. The rationale for Geoghegan J.'s judgment was that such evidence was essential controls needed to limit the scope of liability in cases where a statement was required to be publicly disclosed, thereby eliminating the possibility of indefinite liability by a indefinite amount to incur an amount indefinite . group, as in Ultramares v. Touche (1931) 255 NY 170. In Wildgust, Geoghegan J. stated that there was no need for such a control mechanism because the particular circumstances of the case meant that any testimony was not widely circulated. Rather, both the individuals affected by the claim (possibly a single individual, the policyholder, although here the interest has been split between the individual and the creditor to whom the policy is assigned) and the level of financial risk are errors. fact (the value of the policy) was known (or discernible) and limited at the time of writing. But you can't say that here. The statement to which the plaintiff refers here was made in a generally available leaflet. In fact, there are a number of potential claims that arise from these types of bugs. Alongside a buyer like Mr. Walsh, who buys a property and finds it smaller than he expected, one can imagine complaints from a bidder who did not buy the property because he felt it was too big, or from a disappointed bidder Developer who did not bid. What would you have achieved if Mr. Walsh had not "overpaid" for the facilities. Both plaintiffs can allege that they lost valuable property that has increased in value dramatically in subsequent years, especially if the test is only a prediction of proximity and damage. It would be difficult to estimate the loss in such cases. These considerations are similar to those that have heretofore justified limitations of liability for wrongdoing and are in stark contrast to the considerations that influenced the Court in the Wildgust case. Furthermore, there was no disclaimer or waiver in Wildgust and therefore this issue, which is central to this case, was not raised. In the circumstances, I do not believe that Wildgust offers any justification for taking an approach in this case that would involve a dramatic departure from the law of negligent misrepresentation, which has existed since it was first formulated in Hedley Byrne v. Heller and in that jurisdiction in Securities Trust v. Moore and Bank of Ireland v. blacksmith If such a step is taken, it requires a more detailed (and by a full court) examination of what was involved in the case, or indeed Wildgust. Since, in my view, the plaintiff should not have succeeded based on the evidence found, I allow the defendant's appeal.

63 Finally, and while by no means dispositive, this seems to me to be a result that brings clarity and promotes efficiency. In this case, it is ultimately a matter of risk allocation. At first glance, it may seem plausible that the claiming agent would assume the risk of damage from the error, but this becomes less clear in context. Everyone involved in this transaction is buying or selling something. The provision of reliable (and prosecuted if inaccurate) information or advice has value, sometimes significant. Backed by the resources of a large corporation, why would any party acquire this information for free? If the agent cannot limit liability (or believes he can, which he cannot, if a waiver is to be judged on the gravity of an indemnity), he should attempt to charge for his services at a price that sufficient to cover the risk. Given the potential risk of damage in real estate transactions and the associated process costs, these are significant costs that must be factored into the price, either directly or indirectly through insurance companies. This means that the costs are shared between the broker, his client and all other buyers. But these buyers may not care about the accuracy of the information about the area and may not trust the brochure in other ways, e.g. B. relating to title or ownership. For these participants, this would be an additional and unnecessary cost factor. It is only a specific buyer having an interest in square feet that the information is of value and there is no reason the buyer can avoid the expense of being able to rely on and disclose this information. among other market participants. In my opinion it is reasonable that a buyer who has an interest in relying on the information in the prospectus should first contact the buyer, either with the seller, the seller's agent or his own specialist. and otherwise erroneously assume the reliance risk unless the agent clearly assumed the risk for whatever reason. This is, I believe, the essential approach to negligent misrepresentation claims in cases like this one, and it is consistent with the outcome of these cases, whether the claims succeed or not. In my view, the circumstances of this case (which are clarified here for the purposes of the pamphlet) cannot be said to show that the Agent assumed that responsibility before that intervener.

Lafoy J.

1. For a little over half a century beginning with the House of Lords decision in Hedley Byrne & Co. v. Heller & Partners Limited [1964] AC 465 (“Hedley Byrne”), the liability for negligence and misrepresentation legislation developed in the UK. In general, this jurisdiction followed the development of the United Kingdom. However, a very fundamental question arises in this Complaint, namely whether, under what circumstances and to what extent a disclaimer relieves a provider of Defendant's information from liability for financial loss suffered by a recipient of Plaintiff's information as a result of what otherwise there will be culpable conduct on the part of the accused which has not previously been determined by this court. Considering this question in the factual context of the present complaint, the present judgment will read:

(a) the material facts underlying the matters to be determined;
(b) the response of the appellant ("Mr. Walsh"), who was a plaintiff in the Superior Court, and the defense of the appellant ("JLL"), who was a defendant in the Superior Court;

(c) the Superior Court judgment rendered by Quirke J. (“the trial judge”) on January 24, 2007 (reported in [2009] 4 IR 401);

(d) some characteristics of the resource;

(e) analyzing the development of relevant legal principles applicable by reference to UK case law and the extent of recognition and application of that case law by this Court, resulting in the identification of relevant legal principles in that case law; It is

(f) Discussing and concluding on the application of the relevant principles of law to the relevant facts.

Background fact in outline
2. JLL acted as real estate agent for Tucks Limited ('the Seller') on the private contract sale of a commercial property in 2000. The commercial property, hereinafter referred to as "the property", was located on Upper Gardiner Street in north Dublin city centre. Mister. Walsh entered into an agreement to purchase the property from the seller on 9 August 2000 at a price of IR£2,342,000 and the sale was completed by transfer of 28 September 2000.

3. Mr. Walsh at the Supreme Court hearing that he was in real estate and management education and had been in the real estate business for twenty years. At the time he owned property in the north part of Dublin city center on Cumberland Street which he wished to sell. He saw the property advertised in a newspaper and also received a call from Eamonn Maguire ("Mr. Maguire") of Palmer McCormack, a licensed land surveyor, who knew he needed a property in North City Centre. Mister. Walsh, accompanied by Mr. Maguire, who he testified did not practice law, toured the property on July 13, 2000. Walsh was very interested in the property and returned on July 14, 2000 to view it again to watch. JLL representative Woody O'Neill ("Mr. O'Neill") presented him with a sales brochure at the time, the contents of which will be detailed later. On July 21, 2000, Mr. Walsh received a call from Mr. O'Neill advising that there was significant interest in the property and that bids were due by noon on July 28, 2000. Walsh produced a handwritten document. Bid before 12 noon on 28 July 2000. Before doing so, however, he ordered that what he termed a "site survey", an inventory of the condition of the property, be carried out by a registered surveyor. Val O'Brien ("Mr O'Brien"). The object was bought by Mr. O'Brien on July 27, 2000, laying Mr. Walsch.

4. As for that of Mr. Walsh, his evidence in the Superior Court was that his "calculations were made on the back of an envelope", which is to be interpreted metaphorically and not literally. The relevant component of their calculations for present purposes was based on the assumption that approximately 10,000 square feet on the first floor of the property would be rentable at an estimated rent of IR £20 per square foot. The source for the approximately 10,000 square foot number was JLL's sales brochure.

5. Mr Walsh was accepted by the seller and as mentioned above the contract was subsequently executed and the sale completed in September 2000.

6. As stated in the High Court judgment (paragraphs 25 and 26 of the judgment as reported), on the instructions of Mr Walsh, Palmer McCormack submitted Mr Walsh, ACC Bank, dated 15 August 2000, which stated , that the property "encompasses approximately 23,000 gross square feet on nearly 1/3 acre of land." That report stated that Palmer McCormack did not survey the building and took the floor areas from the JLL prospectus. The report also states that “first level office space is approximately 10,463 gross square feet. . .”. ACC Bank has not conducted an investigation into the accuracy of the measurements and has not itself conducted a study in relation to the property.

7. JLL's sales brochure was a two-page document. At the top of each page the property has been described as "Commercial Property". The front page, above a color photograph of the estate, read:

"Excellent rehabilitation opportunity".
Then the address was given and the following information followed:
„2.142 m2 (23.057 Quadratfuß)
Land area 0.13 hectares (0.31 acres)”

The property was then described as: "Excellent city location in the vicinity of numerous commercial and institutional users" and examples were given. It was also said to be "Zoned Z8". At the very bottom of the first page was a notice in very small type that read:
"While every care has been taken in preparing these details and are believed to be accurate, they are not guaranteed and interested buyers/renters should ensure that the information provided is accurate."
8. On the second page was a map indicating the location of the property, which was described as a high quality two story corner property comprising "a combination of retail and exhibition, warehousing and office space over two floors". Further details of the accommodation have been presented below as follows:
m2 Quadratfuß

Ground floor 1,170 12,594

First Floor 972 10,463

Total 2,142 23,057

Land area 0.13 hectares (0.31 acres)”

A further reference to "opportunity" followed, stating that the property "offers an excellent opportunity to rebuild and, subject to the necessary planning permission, would be ideal for a residential, commercial or mixed development". It was indicated that the vacancy would be filled in the fall of 2000.
9. After completing the purchase as part of negotiations to lease the first floor of the property to the Public Works Office, Mr Walsh instructed Mr O'Brien to measure the area of ​​the property. As in the Superior Court ruling (at paragraph 28) by letter dated 20th O'Brien, Mr. Walsh informed that the total area of ​​the property was 21,248 square feet (8,573.5 square feet first floor and 12,674.6 square feet ground floor). That said, in the prospectus, JLL overestimated the total area by 1,809 square feet, which is approximately 8% of the total area. The first floor area was overestimated at 1,809 square feet, which is approximately 18% of the first floor area. During the appeal hearing, there were discussions about the documents that were uncovered, how the incorrect measurements of the interior areas came about and the inclusion of the incorrect dimensions in the sales brochure. On the basis of the disclaimer, no argument has been made by JLL that JLL is not responsible for this error or the inclusion of incorrect measurements in the prospectus. Having said that, the established facts are limited to showing that JLL prepared the sales brochure which contained false information about the interior surfaces of the property and passed it on to Mr Walsh as a potential buyer. There is no other evidence of any act or activity on the part of JLL which Mr. Walsh can claim negligence amounts in addition to negligent misrepresentation.

10. On 11 October 2001 (Superior Court Precedents No. 2001 No. 15154P), Mr Walsh commenced the plenary hearing of the Superior Court on the subject of this appeal against the applicant, seeking damages for negligence and negligent misrepresentation on the part of JLL. He succeeded in the High Court and won €350,000 in damages against JLL.

The case as claimed
11. The reasons for Mr. Walsh v. JLL is presented succinctly and clearly in the lawsuit. It is noted that JLL will assist Mr Walsh in preparing and providing information and details in relation to the property, particularly to ensure that the information and details provided are accurate and that all reasonable details have been provided to JLL in providing such information and details proceed with skill and care. It is alleged that JLL knew or should have known that Mr Walsh would be relying on the contents of the booklet provided to him by JLL and that JLL Mr. Take Care of the Booklet. Regarding JLL Mr. Walsh that care was taken in preparing the details of the Prospectus and that as a result JLL was liable to Mr. Walsh for the contents of the Prospectus and had a duty of care to ensure its accuracy and to ensure that in its preparation, how alleges in the complaint that all due care was exercised. After the reference to errors in the prospectus regarding the usable area, it is said that JLL was guilty of "willful deception". Details of breaches of duty and negligence are detailed, including negligent inaccuracies, which generally imply an alleged lack of reasonable care in the design and content of the brochure. The lawsuit is being filed as a "negligent reporting and negligent damage" action.

12. In its defense, does JLL go through all the points alleged in the complaint or present Mr. Walsh as evidence of them. However, in defense it was argued that the prospectus made it clear that the information contained therein was not guaranteed and that any potential buyer should verify the accuracy of the information provided. Further, it is expressly stated that between JLL and Mr. Walsh sufficient to establish a cause of action for negligence or negligent misrepresentation. It is also claimed that JLL will not be responsible for Mr. Walsh's, as well as any loss or damage suffered by Mr. Walsh for his failure to inspect the property prior to entering into the contract to purchase the property.

13. In view of the foregoing (at the end of paragraph 9) in relation to the established facts and evidence, and considering Mr. Walsh as alleged, in my opinion the claim for negligence should be treated as a claim for negligent error. Accordingly, the basis on which I propose to address the issues in this appeal is reference to the negligent inaccuracy versus general negligence statute.

The Supreme Court Judgment
14. Before outlining the relevant conclusions of the judgment it should be noted that what is before this Court is the Counsel's agreed hearing of evidence submitted to the High Court and not a transcript. The fine print clause at the bottom of the first page of the Prospectus is variously described in the Agreed Notice as "Waiver" or "Waiver". In my opinion, "disclaimer" is a more appropriate description and is the description I suggest using.

15. The judgment mentions Mr. Walsh and two Chartered Surveyors who testified, and Nigel Healy's (“Mr. Healy”) testimony to be a JLL Director and Chartered Surveyor. One of the college experts, Barry Smith ("Mr. Smith"), who was described in the agreed note as the college expert and gentlemen's partner. deVere White Smith and who has been in the real estate and pricing business for over forty years. , testified on behalf of Mr. Walsch. The other, Peter Rowan ("Mr Rowan"), described as the chief executive of Lambert Smith Hampton's Dublin office, which specializes in commercial real estate, testified on behalf of JLL. While the testimony of each of these witnesses was aimed in part at quantifying the loss Mr. Walsh suffered because the actual square footage of the property was less than stated in the brochure, his statement also addressed the question of whether JLL told Mr. Walsh because of negligent statement.

16. Briefly describing Mr. Walsh at sentencing (in paragraph 30), the judge explained:

"He said commercial property buyers believe that 'disclaimers' of the [JLL] type relied upon should be found in most auctioneers' brochures and should protect the auctioneers from liability in relation to 'minor' miscalculations .”
17. The judgment also noted (paragraph 32) that Mr Smith gave as evidence that it would be highly unusual for investors to value real estate prior to an offer to buy and that he had never encountered circumstances in which this was done would have happened. Mister. Smith said that most auctioneers have some kind of disclaimer in their brochures and that those disclaimers ". . . an attempt to protect the agent from relatively minor errors. Smith also said he hoped the auctioneers' measurements were accurate and that buyers would trust the measurements. As for Mr Rowan's statement, it is on record (paragraph 33) that he stated that a prudent investor or prospective buyer should carry out a detailed inspection and measurement of all areas before purchasing any property. He said it was not normal or prudent and would not be considered acceptable to rely solely on measurements provided in sales brochures prepared by a seller's representative. As pointed out by JLL's attorney, the decision reveals that the two testifying collegiate experts made conflicting statements.
18. It was recorded (at paragraph 34) that Mr. Healy described the disclaimer as advising the purchaser to carry out inspections and measurements as a form of "due diligence" and further that Mr. Healy said the measurements in the Brochures are a "general guideline" for potential buyers.

19. The first issue identified by the trial judge in his judgment was whether JLL owed a duty of care to the plaintiff to ensure that the calculation of the built area of ​​the property that JLL published in its sales brochure was correct. In addressing this issue, the trial judge referred to a number of authorities, which are considered in detail below, including but not limited to the following:

(a) Hedley Byrne;
(b) Silva c. Eric S. Bush [1990] 1 AC 831 („Smith“);

(c) Caparo Industries Plc c. Dickman [1990] 2 AC 605 („Caparo“);

(d) McCullagh c. Carl Fox & Partner Ltda. [1996] PNLR 205 (“McCullagh”);

(e) Glencar Exploration Plc gegen Mayo County Council (Nr. 2) [2002] 1 IR 84 („Glencar“); e

(f) Wild Gust v Bank of Ireland [2006] 1 IR 570 (“Wild Gust”).

20. The trial judge then reached a number of conclusions (in paragraphs 45 to 49): that the information contained in the JLL brochure was addressed to a very specific and identifiable group of people, namely potential buyers; that prospective buyers should rely on the information contained in the prospectus when deciding whether or not to make an offer to buy; and that, prima facie, the relationship between Mr. Walsh and JLL was sufficiently close to constitute a "special relationship" of the species identified in Wildgust.
21. Regarding the effect of the disclaimer published at the bottom of the first page of the prospectus, the trial judge noted (at paragraph 50) that it had been argued on behalf of JLL that the disclaimer precluded the existence of the alleged relationship on behalf of Mr. Walsh was argued on behalf of JLL that the existence of the disclaimer introduced the “third element” recognized in Caparo to the case, making it unfair, unfair and unreasonable for the Superior Court to impose an obligation of the kind claimed on JLL on behalf of Mr . Walsch. The trial judge dismissed JLL's argument, stating (paragraph 51):

“The information contained in the brochure was released by [JLL] for the express purpose of influencing a limited number of identifiable individuals. The "disclaimer" post was irrelevant to this fact. [Mister. Walsh] was an individual to whom the pamphlet was specifically addressed and was influenced by the information published in the pamphlet. I am satisfied with evidence that you have relied on the measurements contained in the brochure to calculate your exact offer or 'bid' for the purchase of the property.”
22. The trial judge then identified (at paragraph 52) the issue to be resolved in relation to the "waiver" as to whether its presence in the prospectus and its precise terms are sufficient to exempt JLL from liability to Mr JLL. Walsh as to JLL's negligence in measuring the usable area of ​​the Property and JLL's negligent error in publishing incorrect measurements of the usable area. He claimed that according to the evidence, this was not enough. He stated (in paragraphs 53 et seq.) that he advised Mr Walsh and Chartered Land Surveyors that it is not, and has not been, common practice for prospective purchasers of commercial property in the Dublin area to measure the floor areas of property, before making an offer to buy. It follows from his reference to the "Chartered Surveyors" that the trial judge was referring to the Chartered Surveyors appointed by Mr. Walsh, d. H. Mr O'Brien and Mr Rooney. Stated (in paragraph 54) that it also accepted evidence from "charter assessors" that the "waiver" and similar "disclaimers" published by reputable auctioneers were considered by potential buyers to be related to errors and became small gauge areas , also accepting (in paragraph 55) the evidence submitted on behalf of JLL, namely the evidence of Mr Rowan and Mr Healy that prudent purchasers should measure as far as possible the areas of flooring and finish detailed pre-purchase surveys of Real Estate, it is satisfied on the basis of the evidence that when detailed and accurate measurements of commercial real estate are provided in the prospectuses of reputable and experienced auctioneers, it is common for potential buyers to be able to rely on the accuracy of these measurements, subject to possible minor calculation error.
23. After noting (in paragraph 59) that it was difficult to accept that "every care was taken in these details" because the usable area was overestimated to the point of misleading potential buyers, the judge said. further dismissed JLL's argument that the provision in the disclaimer that details "are not guaranteed and that interested buyers/renters must ensure the accuracy of the information provided" is sufficient to absolve JLL of responsibility in the circumstances of the case. Having identified the duty of care that Mr Walsh claimed he was owed by JLL, which was to ensure that the information he published in the booklet, which allegedly benefited a limited group of people (including Mr Walsh), were reasonably correct under the circumstances, the trial judge said (at paragraph 63):

“If [JLL] wished to reserve the right to (a) publish in its sales brochure accurate measurements which were in fact grossly inaccurate, and (b) liability to the group of people to whom the brochure was addressed and the contents of which were directed , ruled out, so [JLL] was obliged to [Mr. Walsh] and other potential buyers, the fact that published measurements that appear to be accurate are unlikely to be entirely reliable and should not be relied upon under any circumstances."
The trial judge found (at paragraph 64) that JLL had failed in that obligation by including "a cryptic phrase in the fine print" in the pamphlet.
24. Referring again to “evidence of the practice followed by buyers and sellers of commercial real estate in Dublin at the material time”, the trial judge stated (at paragraph 65) that JLL's “disclaimer” was rather inadequate to inform potential buyers of it that the seemingly accurate measurements of floor areas so prominently published in sales brochures were extremely unreliable. It followed and held (at paragraph 66) that the "waiver" did not effectively indemnify the applicant for negligence and negligent misrepresentation on behalf of Mr Walsch.

25. The trial judge then concluded that the losses on behalf of Mr. Walsh were a reasonably foreseeable loss to JLL, pointing to a number of facts: that the total potential rental income of the property is often the primary factor in calculating value ; that the constructed area of ​​the property is an important factor in determining the total income of the property; that JLL knew or should have known that Mr. Walsh estimated the value of the Property and consequently the value he was willing to bid for the Property, with particular reference to the rental income achievable on the Property; that an overestimate of the constructed area of ​​the property would result in an overestimate of the rental income achievable by the property and a corresponding inflation in the appraised value of the property; and that if the property was purchased at an overestimate of its value and potential rental income, the loss would be borne by the successful purchaser.

26. The trial judge's findings were summarized as follows (paragraph 72):

"It follows that the loss of and damage to [Mr. Walsh] was somewhat predictable from [JLL] in this case. After figuring out how should I (a) manage the relationship between [Mr. Walsh] and [JLL] were close enough to create a "special relationship" of the species identified in Wildgust. . . and (b) that the alleged [Mr. Walsh] was reasonably foreseeable under the circumstances and (c) that the imposition of such a duty on [JLL] would not be unfair, unfair or unreasonable under the circumstances. It follows that I am satisfied with the facts of this case that [JLL] had [Mr. Walsh] to ensure that the calculation of the built area of ​​the property in (sic) that [JLL] published in its sales brochure was correct.”
The trial judge then stated that since it had been conclusively established by indisputable evidence that the first floor area of ​​the property had been overestimated at over 1,800 square feet, it followed that JLL had failed in its duty to Mr. Walsch. .
27. The question of whether Mr Walsh was at fault in his failure to measure the property was then considered. Again, the trial judge referred to the evidence presented on behalf of Mr Walsh that it is not, and has not been, the practice for prospective buyers of commercial property in Dublin to measure the area of ​​the property before offering to buy it , and not on this basis concluded that Mr. Walsh was guilty of negligence in failing to carry out an inspection prior to the conclusion of the contract. Furthermore (in paragraph 79) JLL stated on a point expressly disputed by JLL in the complaint that "no evidence was presented in these proceedings to substantiate the claim that it was an inspection or inspection". to confirm the precise measurements in the leaflet.” On that basis, I was not convinced that Mr Walsh had been put up in evidence at the trial.

28. Eventually the lower court judge put the amount of damage for which he held JLL liable before Mr Walsh at €350,000.

29. The Court's order dated February 7, 2007 and amended February 12, 2007 reflected the judgment in that it found that the Court found JLL negligent and that there was no concurrent negligence on the part of Mr. Walsh and that the Court found the Damage valued at €350,000.00 and Mr Walsh to recover the value of the JLL. Costs were also charged against JLL in favor of Mr. Walsch.

the complaint
30. Generally speaking, JLL's appeal is based on the contention that in making the various findings described in its judgment leading to the conclusion that JLL failed in its duty of care towards Mr Walsh, but that Mr Walsh was not guilty of negligence or complicity and on that basis erred in fact and in law in awarding damages to Mr Walsh, the trial judge. JLL did not appeal as to the amount of damages, so Mr Walsh is only considering liability in this court. On the question of liability, however, both parties attached great importance to the factual basis of the trial judge's decision.

31. In her written submissions, Mr. Walsh places great emphasis on the fact matrix. First, they disclose certain undisputed relevant facts, one of which is central to the dispute between the parties, namely that the constructed area of ​​the property's ground floor is misrepresented in the prospectus data. Second, no fewer than eighteen other findings of fact made by the examining judge are set out in his judgment. Third, it disputes what it claims to be erroneous statements of fact made by JLL's attorneys in their briefs and cites no fewer than thirteen of those statements. Not surprisingly, Mr. Walsh's attorneys emphasize the role of that court in relation to the findings of fact made at first instance, citing the principles set forth in McCarthy J.'s judgment in Hay v. O'Grady [1992] 1 I.R. 210 and understandably underlining the second principle as follows (at p. 217):-

"If the trial judge's findings of fact are supported by credible evidence, this court is bound by those findings, however extensive and seemingly weighty the testimony against you may be. Truth is not the monopoly of any majority.”
Obviously, the limited role of this court in making findings of fact is a factor that everyone is aware of.
32. On the other hand, JLL's attorneys have raised in their submissions questions on a variety of issues of fact, including findings of fact made by the trial judge, the accuracy of which they contest, alleging that some conclusions led to conclusions of fact being incorrect, and some of the evidence presented to the Superior Court were not sufficiently considered by the trial judge. A few examples will suffice for the present purposes. First, the final ground of appeal put forward in the appeal is that the trial judge erred in fact and law in coming to the above conclusion (in paragraph 79) that “no evidence was presented at this trial to establish the assertion that such an inspection or survey should have been carried out to confirm the precise measurements contained in the Prospectus', despite the earlier statement (in paragraph 33) that Mr Rowan' was given as evidence. . . that a prudent investor or prospective buyer should carry out a detailed inspection and measurement of all surfaces before purchasing any property" and that "it is normal or prudent and not considered acceptable practice to rely solely on measurements given in sales brochures, created by a representative of the seller”, indicating the inconsistency between the two statements. Second, JLL's attorneys not only challenged the trial judge's findings of fact, but also contradicted the assertions made by Mr. Walsh in his claims about the results. For example, a claim by Mr Walsh that the property was indeed found to be difficult to survey for potential buyers is disputed by JLL's counsel, who point out that there was no such finding and that there was in any case conflicting evidence gave this point. Finally, JLL's attorneys argue, by way of example, that the trial judge erred in fact and law in considering that the notice or similar notices "have historically been considered by prospective buyers to be relatively minor errors of measurement .

33. Having mentioned some of the substantive disputes that have arisen between the parties to the appeal, I now propose to consider the relevant legal principles as they have developed to date, inter alia with a view to assessing the extent to which dispute resolution is relevant for determination relevant to the issue that corresponds to the provision in the complaint. This issue I believe is the impact of the disclaimer in the prospectus on JLL's liability to Mr Walsh for errors in the prospectus. If they are not relevant, the actual controversies need not be considered further.

Analysis of the development of relevant legal principles and applicable legislation on culpable errors
34. The structure of the following analysis is to take Hedley Byrne as a starting point and then deal in chronological order with the various authorities trusted by the parties, ending with Wildgust.

hedley byrne

35. Like Keane C.J. In Glencar (at p. 134), Hedley Byrne set out an important caveat to the principle that in the case of pecuniary loss caused by negligent tort there is no negligence action for purely economic loss. For present purposes, however, the decision in Hedley Byrne is relevant to how the Law Lords dealt with a matter that arose in relation to the waiver of responsibility. There, the defendant, Heller & Partners Ltd, a commercial bank, received a telephone inquiry from another bank, which wanted to know the seriousness and reputation of one of its customers confidentially and without liability on the part of the defendant. A few months later the bank wrote to the accused asking for his confidential opinion on the seriousness and reputation of the client and whether he found him trustworthy in the way of conducting business worth £100,000 a year. The defendant's reply was entitled "CONFIDENTIAL" and read "For your own private use and without liability on the part of the bank or its employees". The receiving bank forwarded the replies to their client, the complainant, who relied on the statements in the reply and as a result lost over £17,000.00 when the respondent's client went into liquidation. The claim for compensation for non-pecuniary damage requested by the complainant was dismissed.

36. All five Law Lords took a similar view on the question of liability. Lord Reid, in a passage (at page 492) referred to by JLL's counsel in the case, identified the question as "whether a duty of care can be inferred". It is clear that the Respondent never assumed a duty of care in providing the Replies and that without such a duty the Appellant could not succeed. Lord Devlin noted that there was a "general waiver" which he felt was conclusive. He agreed with Lord Reid, stating (on p. 533):-

"One cannot say that a person voluntarily assumes a responsibility if, at the moment when he is told that he accepts it, he declares that in fact he does not accept it. The problem of reconciling the word of exemption with the existence of an obligation only arises when a party claims exemption from a responsibility which it has already assumed or undertakes to assume.
37. As is often noted, and indeed as noted by Geoghegan J. in Wildgust (at paragraph 10), there were subtle differences in emphasis in the Law Lords' speeches in Hedley Byrne, but broadly the concept of 'particular relationship” has been accepted, although different characterizations are made. Mister. Walsh placed particular emphasis on a passage from Lord Pearce's speech (on page 540). As I believe the reliance on behalf of Mr. Walsh in the passage, and particularly the stressed part, is misplaced, I think it is appropriate to put it in context. Lord Pearce stated (on page 539) that an innocent misrepresentation per se does not give rise to a right to damages, but identified three situations in which:
(a) if the ideological falsehood was intended by the parties to establish a guarantee between the contracting parties, ie a contractual situation, it therefore establishes the right to compensation;
(b) a declaration of innocence between the parties in a fiduciary relationship may, on that ground, entitle you to recover from negligence; It is

(c) There is also a duty of care created by "special relationships" which, while not fiduciary, give reason to believe that care and honesty are necessary.

38. Mr. Walsh's forms part of Lord Pearce's analysis of what he called (on page 539) an "extremely important circumstance": "the form of the question and the answer". He pointed out that in Hedley Byrne both were clearly declared irresponsible. In response to an argument by the complainant that the words used were not precise enough to exclude liability for negligence and that he did not accept that even where the parties already had a contractual or special relationship, the words did not confer immunity from reply negligently, in the passage where Mr. Walsh relies on, stated:
“But either way, they clearly rule out the formation of a special relationship. They are among the derivation materials as to whether a duty of care and liability for negligence has been assumed. If both parties expressly state (in a case where neither willfully takes advantage of the other) that there is no liability, then liability does not seem possible to me."
39. Mr Walsh emphasizes here the words "[are] part of the material showing whether a duty of care and liability for negligence has been assumed". It is believed that this means that English courts treated the existence of a disclaimer in cases of negligent misconduct as one of the factors to be considered in determining whether the maker of the statement has accepted liability to the addressee, rather than as a prohibition of automatic retrieval by the recipient. The main reason given on behalf of Mr Walsh for alleging that the disclaimer in the Prospectus was not effective in this case came to Mr Walsh in his judgment (at paragraph 54) mentioned above (at paragraph 22), concluded that the communication was of a nature that potential buyers would consider to be related to "relatively minor measurement errors". Of course, in most cases a disclaimer will only be part of the material from which it is derived if there is an assumption of responsibility for the attribution. Otherwise, the “close” or “special relationship” requirement is not met. Mr. Walsh's error fails to recognize that the importance of a disclaimer and its proper interpretation as the law has evolved is to determine whether the provider of the information has accepted responsibility for the task of obtaining benefits from the applicant, as discussed later becomes.

40. Chronologically, the next UK court instance mentioned in the trial judge's judgment is the decision of the House of Lords in Smith. There the Law Lords dealt with two features, but I consider it sufficient to deal with the feature in Smith. The fact was that Mrs. Smith applied for a mortgage with a building society to enable her to buy a house. The builder was required by law to receive a written home appraisal report. He directed the complainants, Eric S. Bush, a research firm, to inspect the home and make an assessment. Woman. Smith paid the building society an inspection fee. She signed an application form saying that the developer would send her a copy of the report and mortgage appraisal she had received. The form contained a disclaimer, the text of which Mr. Walsh submitted to this court. The text can be found in the report (on page 842) and read as follows:

“I consent to the Company providing me with a copy of the mortgage appraisal and report that the Company is receiving in connection with this application. I understand that the Company is not an agent of the surveyor or the surveyor and that I am not entering into any agreement with the surveyor or the surveyor. I understand that neither the Company nor the Appraiser nor the Surveyor warrants, represents or warrants to me that the statements, conclusions and opinions expressed or implied in the Mortgage Valuation and Report are accurate or valid and that the Report of the Mortgage Assessor this will be provided without any liability on your part to me".
The complainants valued the house at £16,500.00 and the report found that no major repairs were necessary. Based on the report, and without seeking independent research, Ms Smith has bought the house for £18,000.00 after accepting a £3,500.00 upfront payment from the building society. Eighteen months after Mrs. Smith bought the house, the bricks in the chimney caved in and fell off the roof, causing extensive damage. She filed a lawsuit against the applicants, claiming damages for non-pecuniary damage. He was successful in the first instance and received compensation. The Court of Appeal upheld that decision and the House of Lords upheld the Court of Appeal's decision. An aggravating factor in this case was that the waiver made by or on behalf of the Appraiser's complainants was subject to the statutory provisions of the Unfair Contract Terms Act 1977 ("the 1977 Act"), which was enacted in the United Kingdom, the United Kingdom and Kraft was required to meet the reasonableness requirement of Article 2(2) of the 1977 Act. The requirement was deemed not to have been met, so the waiver was not effective to exclude liability for negligence.
41. In the general context of developments in UK law on negligent misrepresentation, and in particular the concept of acceptance of responsibility, the following passage from Lord Griffiths' speech to Smith, which addresses the issues raised in this complaint, is relevant in addition to the questioning of the requirements of the The 1977 Act is quoted to provide some clarification on later comments on the subject. He stated (on page 864):-

“I have already expressed my opinion that, in most cases, voluntary responsibility is not likely to be a meaningful or realistic test. I therefore return to the question of under what circumstances the law should presume that the adviser has assumed responsibility towards the person acting on the advice, or in other words under what circumstances should the adviser have a duty of care in this regard to those . Who is on your board of directors? I would answer [:] only if it is foreseeable that the recipient is likely to suffer damage if the Board is negligent, if there is a sufficiently close relationship between the parties, and if it is fair and reasonable to impose liability. When an appraiser for a building society or community appraises a small home, applying these three criteria leads to the conclusion that they have a duty of care to the buyer. If the assessment is negligent and reliable, damage in the form of financial loss is obviously foreseeable for the buyer. The necessary proximity comes from the appraiser's knowledge that the buyer is overwhelmingly likely to trust his assessment, evidence that the appraisers knew that about 90 percent of buyers do, and the fact that the appraiser only gets the job because the buyer is willing to pay his fee. The imposition of the duty is fair and appropriate because the advice is given in a professional rather than a social context and liability for breaches of duty is limited both in scope and amount. The scope of liability is limited to the purchaser of the home. The value of responsibility cannot be great because it is a modest house”.
This passage was preceded by Lord Griffiths' analysis of a decision by the Queens Bench Division of the English High Court in Yianni v. Edwin Evans & Sons (a company) [1982] Q.B. 438 ("Yianni"). Lord Griffiths stated that he had concluded that the Yianni case had been correctly decided.

42. Although neither in the judgment of the Superior Court nor in the written submissions on behalf of Mr. Walsch, Mr. Walsh attaches some importance to Yianni's decision in hearings before that court. There was also a case where the plaintiffs decided to buy a house and get a loan from a building society. The Bausparkasse commissioned the defendants, a well-known appraisal and appraisal office that regularly carried out appraisals for the Bausparkasse, to inspect and appraise the house. The instructions of the building society named the applicants as buyers, determined the purchase price and the required loan. The defendants reported that the home was sufficient collateral for the loan. The building society received the report and informed the applicants of their willingness to lend and also sent them a copy of the building society's leaflet. However, as stated in the judgment (at f. 447), Mr. Yianni did not read it, but if he had he would have read it at f. 2 the following paragraph under the heading “Evaluation”:-

“The company is not responsible for the construction or condition of the property offered as collateral, nor does it guarantee that the purchase price is reasonable. The appraiser's report is confidential to the Company and is for the sole use of the Board and Directors in determining whether a loan should be granted and, if so, how much. The company may point out deficiencies found by the assessor, but it should not be assumed that other deficiencies are absent. If you require an inspection for your own information and protection, you must appoint an inspector yourself. It is recommended to do so.”
43. Based on these facts, the Queens Bench Division (Park J.) held that the defendants were liable for negligence to the plaintiffs. It was further asserted that the plaintiffs were not accused of contributory negligence. Mister. Walsh quoted the penultimate paragraph of the judgment (at page 457) on the question of contributory negligence, which read as follows:
"Finally, [the attorney] says that the plaintiffs are guilty of contributory negligence because they did not do their own research: they did not research to find out what happened to the house before they made their purchase decision: they do not have the literature provided by the building society read and usually done nothing to ascertain the true condition of the house. It is true that the plaintiffs failed on all of these counts, but that failure was due to their reliance on the defendants to make a competent appraisal of the home. They gave me no reason why they weren't careful about it. I just read the paragraph under the heading "Expert Report" in the home savings manual that Dr. Yianni didn't read. If the paragraph had been worded more strictly and had included a warning that it would be dangerous to rely on the expert's report, I believe that laxity could have been imposed on the complainants. But the allegation of contributory negligence is, in my opinion, ineffective due to the evidence."
Although, as pointed out by JLL's counsel, the question of contributory negligence does not arise until JLL's liability for negligent misrepresentation has been established, I quoted this passage because the reference to the inclusion of a disclaimer in an indemnity release is consistent with the observations of the first instance judge agrees in his judgment cited above (paragraph 63) (paragraph 23). I do not find any indication of the need for a reservation in any of the other judicial authorities in the United Kingdom that have been brought to the attention of the Court.
44. In general, I find it difficult to see any real analogy between the Yianni case, or even the Smith case, on the one hand, and this case, on the other. In the first instances, any valuation was carried out under a legal regime which imposed on the mortgage lender an obligation to proceed with the valuation of a property given as a guarantee of a deposit whose legal framework, in the words of Lord Griffiths in Smith, "bites such a release from responsibility". Furthermore, it was the prospective borrower who paid the appraisal fee. Furthermore, Lord Griffiths' views on the concept of taking responsibility have not found support in the case law of the UK courts.


45. The decision of the House of Lords in Smith precedes its decision in Caparo. Before considering the nature of the Caparo complaint and its factual context, and in particular the specific passage from Lord Bridge's speech in Caparo on which JLL's counsel relied in this case, it is appropriate to consider this decision more broadly. having regard to the observations made by that court in Glencar on the subject. In his judgment, Keane C.J., after noting that the House of Lords in Caparo ultimately took a different approach in determining whether a duty of care is due, and if so, what its scope, quoted the following passage from Lord's speech Bridge (at p. 617), in which he summarized the approach in England:

It turns out that, in addition to the foreseeability of the damage, the necessary prerequisites for every case of due diligence are that there must be a relationship between the debtor of the duty and the debtor that is legally characterized as “close” or “neighborhood”. "and the situation must be such that the court finds it just, equitable and reasonable that the law should impose on one of the parties an obligation of some magnitude in favor of the other".
Later, when Keane C.J. stated (on page 139):-
"In my view there is no reason why courts deciding whether there is a duty of care should, in all cases where the injury or property damage was reasonably foreseeable and the examination is notoriously difficult and elusive, find that it is the case is” or “neighborhood” shall be deemed to be met unless very strong public policy considerations dictate otherwise. In my view, no wrong is done if they are obliged to go a step further and consider whether it is fair and reasonable in all the circumstances to impose on the defendant an obligation of some magnitude in favor of the plaintiff..."
46. ​​It should be noted that of the allegations on which the claim against Glencar Defendant, Mayo County Council, is based, the allegation relevant for the present purposes is a negligent act in the performance of its statutory function as a defendant was planning authority. , is not a claim for negligence. In addition, it should also be noted that Keane C.J. obiter, within three years, was found by that court in the judgment of Fennelly J. in Breslin v. Corcoran [2003] 2 IR 203, if the negligent act is other than negligent misrepresentation. Fennelly J. explained (on page 208):
“I consider this passage to be the most authoritative statement of the general approach that our courts should take in assessing the existence of a duty of care. It seems to me that alongside the elements of predictability and proximity, it is natural to consider considerations of fairness, equity and appropriateness. Almost anything can be predictable. What is reasonably foreseeable is closely related to the concept of proximity made explicit in the cases. The judge of fact will of course also examine whether liability is justified. In other words, all relevant circumstances must be taken into account.”

47. The decision of the House of Lords in Caparo arose out of judgment on a preliminary question as to whether an accounting firm which had been auditors of a limited liability company for a particular year and was a defendant in an action alleging that the auditors were negligent in auditing the annual accounts, had a duty of care to the defendants, were shareholders in the company and after receiving the audited annual accounts for the financial year in question acquired further shares in the company and at the end of the year offered the company an offer for a successful acquisition. The passage from Lord Bridge's speech on which JLL's counsel relied in this case follows an analysis of several cases including Hedley Byrne and Smith. Lord Bridge stated (on p. 620):-

“The outstanding feature of all these cases is that the defendant who provided advice or information was fully aware of the nature of the transaction the plaintiff was contemplating, knew that the advice or information would be communicated to him directly or indirectly and knowing that this was the case, it was highly likely that Plaintiff relied on such advice or information in determining whether or not to enter into the Proposed Transaction. In such circumstances, the Defendant should make it clear, always subject to the effect of a disclaimer, that the Claimant would rely on the Defendant's advice or information for the same purpose as it relied on the Event. in this. Likewise, again subject to the effect of any disclaimer, in that situation the applicant would reasonably assume that he is entitled to rely on any advice or information provided to him for the purpose for which he requested it.”
In that complaint, JLL's counsel referred to the caveats in that citation regarding the "effect of a disclaimer" and argued that the existence and effectiveness of the relevant disclaimer was crucial in each case. Mister. Walsh stressed that what matters is the "impact" of a disclaimer, not its mere existence.
48. In Caparo, Lord Bridge observed (at page 623) that some of the speeches in the Hedley Byrne case arose out of a duty of care in relation to negligent utterances "out of a voluntary acceptance of responsibility on the part of the author of the utterances," while Lord Griffiths in Smith firmly rejected the view that this was the true basis of responsibility. However, Lord Bridge felt that there was nothing about the difference between the two approaches in the context of the use of the House of Lords at the time. The result of Caparo's appeal was that the House of Lords concluded that the auditors had no obligation to look after the accused, whether as shareholders or potential investors in the company.

49. Before leaving the Caparo judgment, it should be noted that, on the basis of the facts set out there, no question as to the existence or effect of a disclaimer was raised. While the passage from Lord Bridge's speech quoted above acknowledges that the effect of a disclaimer can be substantial, it is clear from the next sentence that Lord Bridge has attempted to distinguish situations in adjudicated cases. that he had here outlined the very different situation in which, as he puts it, "a statement is coming into more or less general circulation and it is foreseeable that outsiders of the statement's author might rely on it of purposes." different purposes , which the maker of the declaration has not foreseen". To avoid the unsatisfactory result that would result from considering that a declaration maker is obliged to take care of the accuracy of the declaration 'for each individual', Lord Bridge outlined what he would expect in the decided statement Cases as follows (on p. 621):

"So if you just look at the circumstances of the adjudicated cases where there is negligent misstatement due diligence, you should expect to find the 'threshold or control mechanism'. . . was based on the need, in this class of civil liability, to demonstrate, as an essential part of the "closeness" between plaintiff and defendant, that the defendant knew that his testimony addressed the plaintiff either as an individual or as a member of an identifiable class, particularly with respect to a specific one Transaction or transactions of a specific nature (e.g., into a prospect whom you invite to invest) that the plaintiff is likely to use in deciding whether to enter into that transaction, or a transaction of that nature."
Given what Lord Bridge has said above, an effective disclaimer prevents the 'proximity' element of the existence of a duty of care from being established.

50. McCullagh was ruled by the Court of Appeal following the decision of the House of Lords at Caparo. Of all the authorities cited on behalf of the parties, it is the authority that actually most closely resembles this case. The fact was that the plaintiff was viewing a property in Chiswick, London, after seeing an advertisement in a magazine describing the property as "almost an acre of gardens". At the hearing, a director of the defendant real estate agents involved in the sale of the property, Mr. Scott, verbally explained to the author that the site occupies 0.92 acres. At the conclusion of the hearing, he provided the plaintiff with a copy of the defendant's property listing showing the 0.92 acres. In fact, the area of ​​the site was 0.48 hectares. The plaintiff made an offer for the property that evening and, after re-visiting the property the next day, increased his offer, which was accepted by the sellers and the contracts were exchanged the following Monday. When the plaintiff found the property was only 0.48 acres, he filed a negligent damage claim against the brokers. Real estate agents cited the disclaimer in their data document in their defense. It is appropriate to read the terms of the disclaimer as set out in Hobhouse L.J. (on page 209) because Mr. Walsch. After referring to the details, Hobhouse said L.J. stated:

"They included it in five paragraphs at the end of Lane Fox's standard warning:
'1. This information is not part of an offer or contract.

2. All statements made in these details about this property are made without liability on the part of Lane Fox or the seller or renter.

3. Nothing contained in these details regarding this property should be construed as a statement or representation of fact.

4. Any prospective buyer must verify the accuracy of any statement contained in this data, by inspection or otherwise.

5. Sellers make no representations or warranties in connection with this property and neither Lane Fox nor any employee of Lane Fox is authorized to do so.

This disclaimer has been prepared in a manner broadly consistent with terms used by other real estate agents at the time."
51. It is clear from the judgments of the McCullagh Court of Appeals that the factual context, not just Mr Scott's oral presentation and the manner in which the plaintiff's case was argued and argued, gave rise to complications which appear in the court cases have been addressed. For present purposes, however, it is only necessary to focus on the Court of Appeals' findings regarding the disclaimer.

52. JLL's attorney relied on a passage from the trial of L.J. Hobhouse, preceded by an analysis of the Law Lords' speeches in Hedley Byrne, and immediately before quoting the passage from Lord Devlin's speech cited above (in paragraph 36): Hobhouse L.J. stated (on page 222):

Thus, the relevance of the period of responsibility is negatively one of the essential elements for the existence of due diligence. Negative acceptance of responsibility for the statement. It implicitly tells the recipient of the representation to be aware that if the author chooses to trust it, he accepts no responsibility for the accuracy of the representation. The waiver is part of the facts that the court must consider in determining the defendant's duty of care to the plaintiff. In other words, the question is whether the plaintiff had the right to treat the representation as if the defendants had accepted responsibility. That is primarily a factual question.”
Hobhouse L.J. Acknowledging that there had been some criticism of the concept of liability in Smith's speech by Lord Griffiths and Caparo's speech by Lord Roskill, he went on to state that the importance of this concept was again recognized in cases of negligent misrepresentation and in a later one House of Lords Decision Emphasizes: Henderson v. Merrett Syndicates [1995] 2 AC 145 ("Henderson"). Also in White v. Jones [1995] 2 AC 207 ('White'), Lord Browne-Wilkinson in the House of Lords 'also stressed the importance of the concept of accountability'.
53. Later in his judgment, Hobhouse L.J. in applying principles of law to the facts of the case, in a passage relied upon by JLL's counsel and in which Mr. Walsh relied in part, stating (at page 237):

“The correct approach, as Hedley Byrne clarifies, is to treat the existence of the disclaimer as one of the facts relevant to determining whether the defendants assumed responsibility for the statement in question. That question must be answered factually in terms of what a sane person would have understood in Mr McCullagh the moment the Representation was finally called. In this regard, it is clear that the statement that the area of ​​the property is 0.92 was a statement drawn from the details and that the defendants did not accept responsibility for that statement. The mere fact that Mr. Scott, when he gave Mr. McCullagh to Mr. McCullagh, would not lead a reasonable person to conclude that the defendants chose to accept responsibility for the testimony which they gave in detail that they would not take any responsibility. Claiming that such a conclusion would be reasonable is unrealistic. It was not supported by any evidence. McCullagh said (surprisingly) that he didn't bother to read the details, but he also said he knew they would contain disclaimers of the kind they did. The filing was also inconsistent with paragraph 5 of the notice. The essence of negligence law is the application of objective standards of reasonableness. According to these standards, it is clear that the defendants have not assumed any responsibility for the correctness of the area data. The position may differ if the representation relates to something not included or likely to be included in the details."
In the written submissions made on behalf of Mr. Walsh, particular emphasis was placed on the first two sentences of this passage from the trial of Hobhouse L.J. following reliance on the passage from Lord Pearce's speech to Hedley Byrne cited above (paragraph 38). However, on appeal, Mr. Walsh said he expressly rejected the thesis contained in sentence 2 that the effect of the waiver had to be determined objectively.
54. Sir Christopher Slade agreed with this conclusion of Hobhouse L.J. to. Quoting Henderson, he explained (on page 243):

"The assumption of liability was refused with a corresponding decision."
Nurse LJ was of the opinion that the disclaimer left no doubt that there was no breach of duty by the defendant real estate agent Lane Fox.
wilde Böe

55. The appeal challenged before the General Court in Wildgust was fundamentally different from the appeal and, in particular, no doubt was raised as to the relevance of a liability waiver in determining whether there was liability for negligence or misrepresentation. However, the judgments of this court are relevant because, after Caparo and Glencar, they dealt with the law of culpable distortion in general. Furthermore, since Mr. Walsh's position appears to be that Geoghegan J.'s judgment provides the answer to the central question of this appeal, although I believe that it does not, it is necessary to examine that judgment in detail .

56. The facts of the Wildgust case were that the first-named plaintiffs, Harold Wildgust ("Mr. Wildgust"), and his wife, with a creditor, Hill Samuel Bank Limited ("Hill Samuel"), had personal guarantees in respect of the liability of the second plaintiff named Carrickowen Limited, a company owned by Mr. Wildgust, on loans from Hill Samuel. Also Mr. Wildgust and his wife provided Hill Samuel security by providing Hill Samuel with a suretyship policy for each other's lives with the Norwich Union Life Assurance Society ("Norwich Union"). A monthly premium payable on the policies was paid by direct debit from an account in Ms Wildgust's name with the Bank of Ireland. The contribution payment due in March 1992 was not paid by direct debit. Although Bank of Ireland was an original defendant in the action, the plaintiffs' action against Bank of Ireland has been settled. Essentially, the litigation contested in this court was that between Mr Wildgust and the Norwich Union, who refused to issue Mrs Wildgust's policy after his death. The lawsuit against Norwich Union concerned an order requiring Norwich Union to terminate the policy for Mrs. Wildgust's life or for damages for negligent misrepresentation.

57. The negligent misconduct underlying the action against Norwich Union arose out of circumstances involving Hill Samuel Norwich Union on 6 . Wildgust was contacted by a Hill Samuel officer, Declan O'Hanlon ("Mr. O'Hanlon"), who informed him that a check had been sent to Norwich Union that would cover the price due. Afterwards Mr. O'Hanlon contacted Norwich Union by telephone on April 22, 1992, requesting confirmation that the policy was correct and in order. Norwich Union confirmed the check had been received and that everything was correct and in order.

58. However, it later became clear that, from Norwich Union's perspective, all was not well due to the way Norwich Union processed the payment by cheque. As a result, the policy on Mrs. Wildgust was considered expired in May 1992.

59. As Geoghegan J. noted in his judgment (paragraph 7), Mr O'Hanlon said Mr Wildgust had asked Norwich Union for confirmation that the premiums had been paid and said Mr Es could not claimed that Wildgust personally referred to Mr. O'Hanlon of Norwich Union. As is also noted, Mr Wildgust v Norwich Union failed in the High Court solely on lack of confidence. Geoghegan J. cited what he described as the "quite crucial" last paragraph of the October 15, 2001 Superior Court (Morris P.) judgment. Wildgust failed in the first instance, Morris P. explained:

“In my view, the main insurmountable difficulty faced by the complainant is that he neither knew nor relied on the misrepresentation made by Norwich Union. He wasn't fooled by the false testimony because he wasn't aware of it. He wasn't biased. He only found out about the non-payment of the premium two months later. In my opinion, the misrepresentation in no way influenced or contributed to the behavior of the author. He has not influenced you or caused you to act to your detriment. I do not think it appropriate that the law should impose any duty on the defendant in favor of the plaintiff in these circumstances."
60. In his judgment (paragraphs 8 et seq.), Geoghegan J. analyzed the development of the law on negligence, in particular considering the dichotomy of “negligence in action” and “negligence in action” and the need for some form of control mechanism to limit the scope of liability for negligent misconduct in relation to the group of potential claimants. He acknowledged (in paragraph 8) that Caparo -
“. . . introduced, in addition to reasonable foreseeability and proximity, a third element of liability for negligence, namely the reasonableness in imposing the duty of care.
He also acknowledged that Keane C.J. at Glencar.
61. Geoghegan J. also referred to other English authorities for negligent misrepresentation, including Hedley Byrne, and stated (in paragraph 10) that the concept of the 'special relationship' was widely accepted in the Law Lords' speeches at Hedley Byrne. , acknowledging the subtle differences mentioned above. However, as he said, before delving any further into the case law, he made the following remark regarding his examination of the facts of the case alleged against him, stating (in paragraph 11):

"The person from Norwich Union who provided the information had reason to believe that the first claimant may have felt their account was in good order and also knew or should have known that Hill Samuel received the bounty would have paid. if a negative answer was given. Therefore, it should have been clear that an incorrect answer could harm the plaintiffs. This was enough to create the 'special relationship', if any, but since the assignment of the policy to Hill Samuel was in the form of a mortgage, the first plaintiff had a repayment amount in the policy. Although Hill Samuel's claim was in his own business interest, in providing the information it would be reasonable to expect that the second defendant would treat Hill Samuel and his client, the mortgagee, as mutually identifiable. Even if one could question the word "identified," there was enough connection to make a special connection, but as I've suggested, I believe such a connection existed nonetheless. I do not believe that Hill Samuel or Mr. O'Hanlon can be held to represent the first author when making the request or relying on the answer, but proof of such representation is not required to establish liability.
What this passage illustrates is that Geoghegan J. pointed to the concept of "special relationship" as a control mechanism.
62. In his judgment (in paragraph 13), Geoghegan J. stated that the case he considered most useful was White, and in particular Lord Browne-Wilkinson's speech in which, as previously (in paragraph 52) in the related to the discussion of the Hobhouse trial L.J. McCullagh noted that the importance of the concept of accountability was emphasized. In fact, Geoghegan J. quoted a passage from Lord Browne-Wilkinson's speech at White, which Hobhouse L.J. in his McCullagh trial in support of emphasizing the importance of the concept of accountability. Whilst that concept alone was not decisive in Geoghegan J. finding the applicants in Wildgust, in my opinion the statement on behalf of Mr. Walsh that this court contested the concept in Wildgust is simply not correct. I shall return later to Geoghegan J.'s analysis of Lord Browne-Wilkinson's trial of White. It is perhaps worth noting that the suit in White was a suit against an attorney who had acted on behalf of a testator for failing to follow his client's instructions to make arrangements for plaintiffs, who in this case were beneficiaries of the testator's will would have been failure has not occurred. In other words, it was a case of negligent action, or, more correctly, negligent omission, not negligent explanation, although Geoghegan J. considered its importance to be the Law Lords' later analysis of the principles underlying Hedley Byrne.

63. After analyzing aspects of Lord Browne-Wilkinson's White speech to be considered below, Geoghegan J. stated (in paragraph 14):

"The essence of this case was that the [Norwich Union] person who submitted the information in response to the application should have known that Hill Samuel would at least trust him and that the policy could be voided if the statement wrong would be loss not only of Hill Samuel but also of his client who paid the premiums and had an economic interest in the policy in the form of repayment principal. I don't see how that shouldn't amount to a special relationship. In short, the first plaintiff was a "neighbor" within the meaning of the negligence statute, and specifically closely related. Here [Norwich Union] is not responsible for a large number of people who may not be known. In my opinion, [Norwich Union] is accountable to the plaintiffs and would therefore allow the appeal."
By applying this reasoning to the facts, the problem of "suspicion" was removed. In fact, Geoghegan J. previously indicated this solution to the problem in a passage (in paragraph 9) cited in the written submissions filed on behalf of Mr. Walsh, in which Geoghegan J. said:
"In the case of Hedley Byrne, the only alleged relationship was that between the questioner and the person who provided the information. Hence the emphasis on trust on the part of the researcher. However, it is a small extension of this, and justified by later case law, that a person other than the claimant may suffer harm as a result of an incorrect answer, and if the existence of such person and the reasonable foreseeability of such harm must exist when the informant was present, there was also a special relationship with him, which established a duty of care".
64. There is a comprehensive analysis of the development of the law of negligence and negligent misrepresentation in the case of Kearns J. in Wildgust, heard in Donoghue v. Stevenson [1932] AC 562 to Hedley Byrne and finally to Caparo and Glencar. Kearns J. (paragraph 56) considered the application of what he called "the most authoritative recent statement of law relating to the general duty of care in cases of negligence", the passage from the judgment of Keane C.J. at Glencar, cited above (paragraph 45). Significantly, Kearns J. went on to raise the question (in paragraph 57) of whether the principles in Caparo, itself a case of negligent misrepresentation, should apply in that jurisdiction to cases of negligent misrepresentation, as opposed to cases of general duty of care in the case of negligence, if the application of these principles has already been established by Glencar. The answer to this question can be found in his judgment (paragraph 63), where he stated:
"In short, I would play Hedley Byrne... given what Caparo said... about the facts of this case."
However, it is important to note that in reaching this conclusion, Kearns J. focused primarily on only one of the tests used in determining whether there is due diligence related to negligent misstatement, namely the "closeness" test. that the "proximity" test of negligent misrepresentation:
“. . . have to . . . Include in a limited and identifiable group of individuals about whom the author of the statement in relation to a particular investigation can reasonably expect that that individual or individuals will or will not act in a particular manner in relation to that investigation Transaction."
These words echo Lord Bridges' words in Caparo, which Kearns J. had previously quoted forcefully (in paragraph 51).
65. Following these conclusions, Kearns J. (at paragraph 64) expressed the view that they "did not constitute an important extension of Hedley Byrne's principles". . . as is evident from the facts of this case.” This view differs slightly from the reasoning of Geoghegan J., who found “to a small extent” to be justified by later case law. Further (in paragraph 66), Kearns J. strongly asserted that it should be noted that the plaintiffs lost in Hedley Byrne primarily because there was an express disclaimer of liability as to the accuracy of the information provided by the bank, a feature contained in which completely lacks wild squall fall. .

66. It should be recalled that the basis on which the trial judge concluded that JLL had a duty of care for Mr Walsh to ensure that the floor area measurements in the pamphlet were correct included the conclusion that the relationship between JLL and Mr. Walsh were close enough to create a "special relationship" of the kind identified in Wildgust. It is not clear, however, that the trial judge, in reaching his conclusion, took into account or took due account of the fundamental difference between Norwich Union's position in Wildgust and that of JLL in this case, namely that in this case there is a notice in which JLL clarified that the details of the prospectus were unsubstantiated and that Mr Walsh was aware of this warning.

Discussion/conclusions on the relevant legal principles and their application to the facts
67. After careful consideration of the legal principles identified as applicable in the cited authorities on behalf of the parties to determine whether a person in JLL's position, an auctioneer or a real estate agent providing information about property for sale in a provides an advertisement for sale, or a sales brochure which is transmitted or distributed to potential buyers, is liable to a buyer for the damage suffered by the buyer as a result of his reliance on such information, which turns out to be incorrect, is, in my view, the first question to be asked what needs to be answered is whether the real estate agent has a duty of care in providing the information to the recipient. In my view, where the respondent has expressly included a disclaimer in the prospectus or advertisement, the key question in determining whether there is a duty of care is whether the existence of the disclaimer, by reference to its terms, creates a responsibility for providing accurate information Information on the part of the broker who transmits the information to the recipient is not accepted. In this case, there is no duty of care towards the recipient. What Hobhouse L.J. referred to in McCullagh as the "correct approach" in the passage of his judgment cited above (at paragraph 53), that is also the correct approach to be taken in that jurisdiction.

68. Consequently, the central question as to the facts of this case is whether, in the delivery of the prospectus to Mr Walsh, given the disclaimer on the first page of the prospectus, JLL can be held liable for Mr. For the accuracy of the information contained in the prospectus, including floor area measurements, is to be provided. As Hobhouse L.J. pointed out, this question must be decided objectively. In this case it must be determined by what a reasonable person in Mr. Walsh would have understood on July 14, 2000 with an interest in the property. That reasonable person, aware of the waiver, and there is no doubt that Mr. Walsh was aware of the disclaimer, he would have taken note of the following aspects of the disclaimer, namely:

(a) relating to the details of the prospectus, which in turn relates to a variety of factors likely to affect the value of the property, for example the location of the property on the property and by reference to the commercial and institutional environment, their zoning for urban and town planning purposes and their surface, both the outer sun and the inner development;
(b) that although the complainant stated that every care had been taken in the preparation of this information and that he believed it to be correct, this statement was clearly qualified in that the information had been expressly stated to be unsubstantiated, resulting in a simple reading, means that there is no guarantee that the data is correct; It is

(c) that prospective buyers or renters have been expressly instructed to verify the accuracy of the information provided.

69. If the disclaimer is to be interpreted objectively, it must of course be read as a whole. Having done so, I believe it is clear and unequivocal that JLL accepts no responsibility for the accuracy of the data, in the sense that while JLL claims to have done everything in its power to guarantee and believes that the information is correct, it is clear that he does not guarantee it and Mr Walsh is made very clear that he must verify the accuracy of the information. Based on the facts of the case, it is clear that Mr Walsh was able to verify the accuracy or inaccuracy of the internal actions outlined in the prospectus. They would have Mr. O'Brien missed the interiors on July 27, 2000 while doing the "status inspection". The evidence from Mr O'Brien's cross-examination was that he would have done so had he been asked to survey the property, and he did in March 2001.
70. A statement in the communication that care has been taken and that the information is believed to be correct does not in itself constitute a statement that the brochure is free of errors or inaccurate information. Given the context in which they appear, there is no basis for taking these words as a representation that all is well and that Mr. Walsh need no longer inquire or be satisfied. As for the lower court's suggestion that JLL would be obliged to refer Mr. Walsh and other prospective buyers "to the fact that measurements appear to have been published". They probably weren't fully trusted and should not be trusted under any circumstances." If there were such a requirement, auctioneers and real estate agents probably wouldn't share information with prospective buyers. In my view, however, there is no such requirement. It is necessary for a person responsible for JLL to state clearly and unequivocally that they are not responsible for ensuring the accuracy of the information provided, but that this responsibility is the responsibility of the recipient of the brochure. I am satisfied that JLL, if the disclaimer was correctly interpreted, did so in this case.

71. While it should be recognized that when comparing the language of the legal notice relied on by Lane Fox & Partners Limited in McCullagh with the language of the JLL prospectus, the wording of the former is more accurate than the wording of the notice in the brochure However, JLL noting in particular the reference to all statements being made "without liability on the part of Lane Fox", I believe that when read objectively, JLL's disclaimer sends a clear message that JLL accepts no responsibility for the accuracy of the statements made brochure and it is the intended purchaser's responsibility to ensure the accuracy of the information. Any other interpretation would ignore the part of the message where the accuracy of the details is not guaranteed. More importantly, I would completely ignore the part of the message that asks potential buyers to make sure the information they are providing is correct. In short, there is no ambiguity in the message conveyed in the notice and no further interpretation of the words used is left open.

72. Although Mr Walsh stated that he was aware of the disclaimer, his evidence was that he thought it referred to minor variations. Mister. Smith also testified that he believed it was due to minor inconsistencies, as did Mr. Tony Rooney, who prepared Palmer McCormack's August 15, 2000 report. Mr. Rowan's evidence believed that the disclaimer covered all problems, not just minor errors, and based on his experience he rejected the suggestion that the common understanding in the industry was that such a disclaimer only covered minor errors. Consequently, there was a conflict of evidence on this point in the Superior Court. However, the role of the court is to objectively interpret the disclaimer, taking into account the words used. When viewed objectively, the disclaimer in JLL's prospectus does not allow the interpretation that it only refers to minor deviations, even if one assumes how many minor deviations can be determined with certainty. Rather, it is claimed that JLL did not guarantee the accuracy of the information. That being said, it could be suggested that there would be no point in an auctioneer or real estate agent sharing details with a prospective buyer in order to deny responsibility for small discrepancies and thereby implicitly accept responsibility for large discrepancies.

73. It is instructive to consider JLL's disclaimer in the context of the facts envisaged by Lord Bridge in the passage from his Speech by Caparo (at page 620) cited above (in paragraph 47) and to consider whether and why this would in this respect relate to the statements presented in sentences 2 and 3 of this passage. The question arising from the second sentence is whether JLL could clearly foresee that Mr Walsh would be relying on information from JLL for the same purpose for which Mr Walsh was relying on her in this case. I believe the answer is that JLL could not do this as the message conveyed in the disclaimer to the prospective buyer is that the applicant does not guarantee the accuracy of the information and it is up to Mr Walsh to ensure its accuracy. The question that arises from the third sentence is whether Mr Walsh could reasonably have assumed that he was entitled to rely on the information in the pamphlet for the purpose for which he had requested it. Again, the answer is that you couldn't, as JLL said in its notice that you need to verify the accuracy of the information, including internal measurements that Mr Walsh intended it to use to calculate how much bid should be. .for the property.

74. Returning to Lord Browne-Wilkinson's emphasis on the importance of White taking responsibility, the passage from his speech, quoted by Geoghegan J. in Wildgust, also quoted by Hobhouse L.J. in McCullagh, as Lord Browne-Wilkinson said, it is the coming together of several previously discussed subjects, with reference to earlier authorities, notably Hedley Byrne. In the passage quoted by Geoghegan J. setting out the underlying principles adopted by Geoghegan J. (in paragraph 14), Lord Browne-Wilkinson stated (at page 274):

“English law does not impose a general duty of care to avoid negligent misrepresentation or mere pecuniary loss, even where pecuniary loss was foreseeable by the claimant. However, such a duty of care arises when there is a special relationship between the parties. Although the categories of cases in which such a special relationship might exist are not finalized, only two categories have been identified to date, namely (1) when there is a relationship of trust and (2) when the respondent responds voluntarily to a question or expert advice or services offers, in circumstances where he knows or should have known that an identified complainant would rely on his answers or advice. In both categories, the special relationship arises when the defendant volunteers to act on the matter, participates in the business of the plaintiff, or chooses to speak up. When he undertakes to act or speak, he is said to have accepted responsibility for the execution of the deal he has entered into. In the words of Lord Reid in Hedley Byrne. . ., "entered into a relationship that obliges them to exercise due care in the circumstances", d.
(grifos not original).
Obviously, the implication of what is said in this passage is that if the accused expressly relinquishes his responsibility, he does not fit into the second identified category, so that there is no special relationship between the accused and the originator and no duty to take care, not to show up. Indeed, Lord Browne-Wilkinson earlier in his speech (at page 272) in connection with showing that taking responsibility was a crucial element of majority reasoning in Hedley Byrne stated:

“. . . It is clear that the majority (barring the disclaimer) would have held the bank liable for the negligent notice, because without the disclaimer the bank would have been liable for such notice.
Ultimately, it can be assumed that it was the notice that saved Heller & Partner from liability and ultimately from liability and negligence.
75. At the beginning of his speech, Lord Browne-Wilkinson, in a passage (on page 273) partly also quoted by Hobhouse L.J. in McCullagh, in a discussion, he explained the importance of taking responsibility outside of a trust and its consequences, stating:

“As in the case of fiduciary duties, the assumption of responsibility referred to is acceptance of the defendant's responsibility for the task, not acceptance of legal responsibility. Even in cases of ad hoc relationships, it is the commitment to answering the question asked that creates the relationship. If the responsibility for the task is assumed by the defendant, a special relationship arises between him and the plaintiff in relation to which the law (not the defendant) is obliged to carry out the task so assumed with care. If this is the correct view, it goes a long way to dispelling doubts about the usefulness of Lord Griffith's concept of accountability in Smith. . . and by Lord Roskill in Caparo. . .”
76. There is an interesting commentary on the concept of liability in Buckley: The Law of Negligence, 4th edition, (Oxford, 2005), para. 4.17, where it says:
"At Henderson's. . ., Lord Goff remarked that at Hedley Byrne "all his landlords spoke of one party taking or taking responsibility to the other". Although the concept of 'accountability' has been criticized in the House of Lords in two post-Hedley Byrne cases, its validity has been strongly affirmed by the House of Lords itself at Henderson. . . it is white . . . . In both cases, however, the notion of assuming responsibility was redefined around the task that the defendant was willing to perform, rather than the notion of assuming legal responsibility in relation to a specific person. The former approach was criticized for being artificial, particularly when liability was imposed under the Hedley-Byrne principle, despite the defendant's attempt to deny liability. By focusing on the work being done rather than the person who originally commissioned it, the new approach sought not only to avoid such artificiality, but also to provide a consistent basis for enforcing liability on behalf of third parties.

The two instances mentioned in this passage of criticism of the concept in the House of Lords were Lord Roskill's speech in Caparo and Lord Griffiths' speech in Smith. This comment is repeated in Buckley's fifth edition, published in 2011 (Buckley: The Law of Negligence and Nuisance).

77. As JLL's counsel pointed out, the disclaimer in JLL's prospectus made specific reference to the details of the prospectus and required Mr Walsh to verify the accuracy of the 'details', which included the company's internal measurements. To paraphrase Lord Browne-Wilkinson in the White passage cited above (at paragraph 75), JLL has not "taken responsibility" "for the task" of providing information in the prospectus details in relation to the property, including the dimensions of the Property interior surface that would be accurate and correct. Consequently, no "special relationship" was established between JLL and Mr. Walsh "in relation to the law. . . obliged to diligently fulfill the task assumed". In short, failure to accept responsibility for the task arising from the existence and effect of the period of responsibility meant that the requirement of proximity or special relationship was not met and JLL had no statutory duty of care and responsibility for Mr Walsh for Mr Walsh's loss claimed to be the result of internal measurement errors.

78. While it is not necessary to apply the "third element" introduced in Caparo to determine whether JLL has a duty of care to Mr Walsh and JLL bears responsibility for the facts here, I have to state that it would be difficult to reach that conclusion that it would be fair, just or reasonable to hold JLL on behalf of Mr. Walsh as to the accuracy of the data contained in the Prospectus, given the existence and effect of the express disclaimer of which Mr. ... Walsh was aware, even if he misinterpreted this effect based on his statement. I should have been advised of its meaning.

79. The disclaimer in the pamphlet was not irrelevant in any respect in the way suggested by the trial judge in the passage of his judgment cited above (at paragraph 51), or at all. The point on which I fundamentally disagree with the reasoning of the Superior Court's judgment, which ultimately led to what I believe was an erroneous conclusion that JLL had a duty of care for Mr Walsh and failed in that duty, was the failure, after objective acknowledging that there was no liability on the part of JLL in connection with the assignment, Mr Walsh, and that as a result JLL was not required to bear any statutory duty of care. Because such acknowledgment should have been the starting point in the process of determining whether JLL had a duty of care to Mr. Walsh and whether JLL was responsible for negligent statements, disputes over findings of fact need not be settled by the judge's appeal ruling, although they may be or should.

80. The determination that JLL has no duty of care to Mr. Walsh as to the accuracy of the property's internal measurements, as shown in the brochure provided to Mr. Walsh, is a death sentence on Mr. Walsh's claim. against JLL for negligent misrepresentation of damages. Whether intent or contributory negligence on the part of Mr. Walsh by failing to review the internal measurements in addition to conducting the "status" study.

81. For the reasons outlined above, I believe that there should be an order enabling JLL to appeal and set aside the Superior Court order declaring JLL negligent and Mr Walsh v JLL.

Mac Menamin J.

1. The appeal brought before the Court raises questions of some importance. The court must assess how the Culpable Misrepresentation Act should apply in the case of an auction brochure that misrepresented a notice that "every care" was taken in its preparation. Another issue is no less significant: namely, the application of the settled case-law of this Court to the effect that conclusions of fact made by an investigating judge are binding unless there is no evidence to support those conclusions.

2. In a High Court judgment of 24 January 2007, Quirke J. found that the complaining company (the defendant or JLL) was obliged to pay the defendant (the plaintiff or Mr Walsh) €350,000 in damages due to your negligence and negligent testimony in preparing an auction brochure. (See [2009] 4 IR 401). At the level of legal principle, the case can be perceived as requiring a comprehensive examination of legal issues in an area where tort and contract law intersect. In other cases, such a case may require consideration and analysis of the scope of liability for negligent disclosures; whether there was a "special relationship" that created a duty of care between the parties; whether the facts showed that Mr. Walsh was sufficiently close to JLL to make him a person "with a reasonable likelihood to be affected by the Company's acts or omissions"; whether personal reliance on statements made by JLL employees would be required to claim damages; and last but not least, whether JLL was entitled to invoke an alleged disclaimer or disclaimer printed at the bottom of a brochure page published for sale by that company. But this case is less complex.

3. The essential facts of this case are quite simple. Already in July 2000 Mr. Walsh (who by then had 20 years experience in the property market) decided to buy a two storey commercial property in North Dublin city centre. JLL has sent you a brochure. This described the dimensions of the ground floor and first floor of the building. But the ground floor measurement contained a very significant error. Contrary to what the prospectus said, it was actually not 10,463 square meters, but only 8,575.5 square meters. Mister. Walsh didn't get what he paid for. He paid over £2million for the estate. Due to the wrong valuation, the property was worth significantly less. The pamphlet reportedly contained a warning. The Supreme Court Justice was unperturbed by the clause. He described it as being placed in very small print at the bottom of the first page of the document. It is understood that it is not binding on the buyer in relation to the facts described below. Considering that there was a special relationship and that the release from liability in this case was not sufficient to release the company from liability, it ruled in favor of the buyer.

4. JLL has appealed against that judgment. In fact, the “proximity problem” does not cause much difficulty. The crux of the case is largely contextual and factual; H. the presentation and terms of the disclaimer itself when viewed in its full context. The crucial point is not the existence of a disclaimer, but the wording of that clause, its placement in the prospectus and the other statements in the prospectus which have been presented as very factual. So I see that this feature is quite limited.

5. This court recently considered the contentious issues of proximity and reliance on false information. (See Cromane Fisheries Limited v Minister for Agriculture & Others [2016] IESC 6, [2016] I.L.R.M. 81, granted 22 February 2016; also Atlantic Marine Supplies v Minister for Transport & Others [2016] IESC 43, [2016] 2 ILRM 397, issued 19 July 2016. But for the purposes of this appeal, issues of closeness between two private parties in this business transaction must be examined through the lens of that court's judgments in Wildgust v. Bank of Ireland & Others [2006] 1 IR 570. The High Court judgment is largely based on the principles set out therein The accuracy of the judgments in Wildgust and the principles expressed therein were not contested in 2006 and compare the principles with their application in the present case at first instance.

6. In Wildgust, Kearns J. remarked on p. 593, para. 43, already used by Hedley Byrne & Co. GmbH. v. Heller & Partner GmbH [1964] AC 465, a negligent but honest statement could give rise to a claim for damages for property damage so caused, based on the duty of care implied when a party discloses information from a party with special skills is relied on by the person who submitted the information to use due diligence where that party knew or should have known that their skills and judgment would be relied on. That court held that the approximation test relating to a negligent testimony included a person of a limited and identifiable class who the testator could reasonably rely on in the context of a particular investigation. by such persons to act or not to act in any particular way in connection with this transaction. Geoghegan J. agreed, contending that personal trust is not always essential and that he, for appeal purposes, would be willing to assume that the negligent misrepresentation law falls under a separate statutory code. law of negligence.

7. In the Hedley Byrne case, the only alleged relationship was between the questioner and the person who provided the information. In the Wildgust case, Geoghegan J. expressed the opinion that the court's determination (in relation to information provided to third parties who are also affected by misinformation) is only a slight extension of the principle that a court may determine that there is a special duty of care if a person other than the applicant is harmed by an incorrect declaration; and when the person who submitted the information should have foreseen the existence of such a data subject and the reasonably foreseeable occurrence of such damage. He was of the opinion that, in addition to contractual or fiduciary relationships, a duty of care can also be assumed when making statements in the context of "other special relationships", which the court can determine in individual cases. It considered that this duty might arise where it was evident that the relationship was such that a party seeking information or advice trusted the other party to exercise the degree of care that the circumstances required when it was appropriate for the party seeking information to do so. that and where the participant gave advice if he knew or should have known that the researcher trusted him.

8. Kearns J., who delivered the main judgment in Wildgust, quoted in favor of the judgment of the House of Lords in Caparo Industries Plc. v. Dickman [1990] 2 AC 605. It is true that in his speech there he refers to p. 620-621, Lord Bridge of Harwich, having regard to legal developments relating to negligent misrepresentation, held that:

“…The outstanding feature of all these cases is that the defendant who provided advice or information was fully aware of the nature of the transaction the plaintiff intended, knowing that the advice or information would be communicated to him, directly or indirectly , and knew that it was very likely that the applicant would rely on such advice or information in making a decision as to whether or not to participate in the proposed transaction. In such circumstances, the Defendant should make it clear, always subject to the effect of a disclaimer, that the Claimant would rely on the Defendant's advice or information for the same purpose as it relied on the Event. in this. Likewise, again subject to the effect of any disclaimer, in that situation the applicant would reasonably assume that he was entitled to rely on the advice or information provided to him for the purpose for which he requested it.” (emphasis added)
The complainants rely heavily on this passage. They say it is clear that the existence and effect of the relevant disclaimer is crucial in each case.
9. I agree that the content and effect of a corresponding disclaimer is decisive. However, in my opinion, the quoted passage should not be understood in such a way that "any" release from liability necessarily relieves the defendant, but that a "proper" release from liability must have this effect. (See Lord Goff of Chieveley's speech in Henderson v. Merrett Syndicates Ltd. [1994] 3 ALLER 506, at page 521, where this judge referred to an assumption of responsibility denied by a "reasonable waiver". The liability in This case was "reasonable." is one of the main points of contention in the case. The learned trial judge found it insufficient in terms of releasing the company from liability. I concur with him and will fully uphold this decision.

10. The present appeal depends, in my view, on the finding of fact by the trial judge. These are based on McCarthy J. in Hay v. O'Grady [1992] I.R. 210 and Henchy J. in Northern Bank Finance Corporation v. Charlton [1979] I.R. 149. Both judgments have in common that such conclusions, when supported by credible evidence, should not be overturned by a court of appeal. I consider this appeal essentially a "case of fact," particularly in light of the judge's conclusion on Mr. Walsh and the conclusions on "market usages." The judge's assessments of the context and content of the disclaimer were reasonable. However, the factual nature of these considerations makes it necessary to repeat the High Court's findings in much more detail than would normally be the case in an appeal of this nature.

11. The judge's analysis of the evidence began with questions that are indisputable. He stated that the property was purchased for £2,342,000 in a sale completed on September 28, 2000, some three months after Mr. Walsch was sold by Mr. "Woodie" O'Neill, an appraiser. with JLL. Mr. O'Neill's role was very important, as we shall see. He was not summoned to testify. Mister. Walsh already owned other properties on the north side of Dublin. He wanted to purchase this property to use as commercial rental units.

12. The property was put up for sale in early July 2000. Walsh visited her on July 13, 2000 and later returned for a second visit. Mister. Walsh told his contact Mr. O'Neill who was interested in buying and Mr. O'Neill then presented him with the sales brochure mentioned later. On July 21, 2000, Mr. O'Neill wrote to Mr. Walsh, who informed him that several potential parties had expressed interest and that JLL had been instructed to complete bids; and that the Company has consequently set the "Best Offers" deadline for July 28, 2000 at 12:00 noon. This was a week after Mr. O'Neill's date of July 21, 2000.

13. Mr. Walsh engaged a solicitor to review the title. He hired a Dublin property inspector, Mr Val O'Brien (who had previously worked for him), to conduct an informal "condition inspection". But Mr. O'Brien didn't measure the dimensions of the property and Mr Walsh asked him. Mister. O'Brien testified that while he regularly did his pre-purchase research, he was never asked to measure a property's square footage before making offers to a seller.

14. Mr Walsh submitted his bid for the property in an undated handwritten letter which he said was based on a 'back of the envelope' calculation. This was based on the income he could make as a property owner based on the rent he could get on both the ground floor and first floor, which at the time was £20 per square metre. Foot. Your offer for the property has been accepted.
15. The judge concluded that Mr Walsh was “generally aware” of the disclaimer in the JLL booklet, but he could not recall reading it carefully. However, he noted that it included a statement that JLL "took every possible precaution" in preparing the prospectus and that he believed it was a company of the utmost honesty. The plaintiff testified that he had purchased other properties on previous occasions but had never surveyed a building prior to purchase. He had confidence in JLL's reputation, credibility and integrity. Evidence was that the showings were to take place on Saturday afternoons as the property was in commercial use. Mister. Walsh testified that it would be difficult to lead a commercial life if everyone had to carry a tape measure to be sure they had the measurements of the equipment they were about to purchase.

16. The plaintiff stated that he believed that Mr. Woodie O'Neill had carried out an inspection while the previous tenants were there. His belief was reinforced by the fact that JLL would receive a substantial commission if and when the property sold. The sale closed on September 28, 2000. Walsh did not commission a measurement study. He said he continues to trust the description and measurements JLL gave him. Incidentally, it should be noted that Mr. Walsh, who provided you with a credit note for this transaction, also failed to conduct an on-site inspection. This must be seen in the light of other evidence of what was common practice among Dublin surveyors at the time.

17. After the sale was completed, the property was leased to the Public Works Commissioners. This lease was negotiated over a long period of time and included significant changes. Then came Mr Walsch's appraiser, Mr O'Brien, who discovered that the ground floor measurement was wrong. In a letter dated March 20, 2001, the land surveyor informed Mr. Walsh states that the total area of ​​the lot was actually 21,248 square feet, that is, 12,674.6 square feet on the ground floor, but only 8,573.5 square feet -- not 10,463 square feet -- on the first floor.

18. Mr Walsh stated that he was surprised to receive this information as he believed that the floor area was 20% larger based on what JLL had stated in the sales brochure. In relation to the disclaimer, he stated that he believed that such disclaimers contained in the prospectuses were only intended to protect the auctioneers from liability in relation to minor miscalculations and not otherwise. As a preamble to the following it should be noted that it has been demonstrated and acknowledged by JLL that none of the other 10-12 potential investors who viewed the property also did not conduct a survey study.
A problem in the case: "Standard Practice" or "The Prudent Investor"
19. What was the custom and practice among Dublin surveyors and surveyors at the time? Was it common or prudent for investors to require property research before making an offer? Mister. Did Walsh carelessly not request a survey?

20. On behalf of Mr. Walsch, Mr. Barry Smyth of De Vere White, Auctioneers and Mr. Tony Rooney, another assessor, testified that neither had ever encountered circumstances requiring such measurements. His evidence was also to the effect that it was assumed that the disclaimers used by most auctioneers were only intended to cover minor discrepancies.

21. Two witnesses testified on behalf of JLL on these matters. Mister. Peter Rowan, a surveyor and surveyor (who previously worked for JLL), testified that a "prudent investor" should conduct a detailed inspection and survey all areas of the home before purchasing. Mr. Rowan's experience consisted of advising financial institutions on real estate transactions. Their testimony was that it would not be normal, prudent or acceptable to rely solely on the measurements contained in a sales brochure.

22. Mr. Nigel Healy, director of JLL, testified to the same effect. Regarding the disclaimer, Mr. Healy testified that it should be considered "advice" to a buyer to conduct inspections and measurements of the property as a form of due diligence. He said the measurements in the brochure should simply be taken as a general guide. Mister. O'Neill offered no explanation. Therefore, no explanation was given as to how the measurements were placed in the brochure.

23. On that appeal, the applicant's counsel alleged that the trial judge erred in failing to give sufficient weight to the fact that Mr Smyth had testified that he had told Mr Rowan about the prevailing practice of measurement in Dublin. The judge is said to have disregarded the fact that Mr. Smyth had Mr. Rowan. Actually, although Mr. Smyth did use the word "procrastinate," I think the situation was a bit more nuanced. There was clear evidence of what was common in the Dublin property market at the time. The evidence for Mr. Rowan can be seen on several levels. His statement was that buying without measure is neither acceptable nor prudent practice, nor is it normal.

24. The attorney's note on the evidence shows that Judge Mr. Rowan asked a very poignant series of questions about his testimony. The judge stated that twelve potential buyers had viewed the property and that none of them had returned to JLL to inform that company that there was a discrepancy of approximately 2,000 feet between what appeared in the brochure and reality gave. based his findings in part on inferences drawn from this evidence.

25. The applicant's counsel also alleged that the trial judge disregarded those of Mr Nigel Healy and Mr Rowan, in the sense that the waiver covered not just minor differences but all matters. Indeed, this point was raised by the Trial Judge in the context of his 2000 Findings on the evidence relating to common and accepted practice in the Dublin property market, and some minor discrepancies, not all issues. His conclusion on this was a fact.

26. The applicants rely on the judgment of Walsh J. in O'Donovan v. Cork County Council [1967] I.R. 173, at 193. There, in connection with a medical malpractice lawsuit, Walsh J. observed that if there was a standard practice with inherent flaws that should be apparent to anyone who has due study of the matter, the fact the fact that this was the case had been shown to be widespread and generally accepted over time did not make the practice any less lax. There are passages in the judgment of Henchy J. in Roche v. Peilow [1985] 1 I.R. 232, on page 254, in the same vein. However, relying on these two statements is misleading because it could give the impression that these issues, which are so important to the decision in this case, were merely legal issues. In fact, in this case it is not so. After Walsh J. had stated ([1967] I.R. 173 at 193) that "neglect of duty is not neglect of duty through repetition", Walsh J. proceeded to insert the following cautionary statement at pp. 193-194:

“…Moreover, where there is a de facto dispute as to whether or not a particular practice is authorized as general practice, it is for a grand jury to determine whether or not the disputed treatment is authorized as general practice. In such circumstances, a jury would be informed that if it finds that such common and accepted practice exists, it must acquit the practitioner failing to have the qualifications referred to above. If some witnesses say that a particular practice is common and accepted, and other medical witnesses dispute it, then that is a fact that must be established like any other fact. This particular question cannot be struck out by a grand jury simply because the practice is supported by some medical witnesses when there are others who dispute the fact that it is [a] common and accepted practice." (emphasis added)
27. Therefore, in this "post-jury" era, it was for the judge to determine whether adherence to a common practice constituted negligence and whether it contained an inherent defect. He dissolved them in favor of the author.
28. In delivering sentencing, the trial judge found that JLL was a large company with a long history that had rightly earned an excellent reputation for competence, probity and integrity in its dealings. JLL stood out as a company with specific skills and experience in the commercial property markets both in Ireland and abroad. He used his good reputation to encourage potential clients to use his services.

29. Claims that the brochure was expressly designed to attract the attention of potential buyers in order to encourage them to bid on each other's property or to offer it; that the brochure was an integral part of the bidding process with the express intention of maximizing the price that potential buyers would pay; and which was issued with the implicit motivation to maximize the commission that JLL would receive from the sale of the property. Therefore, he concluded, potential buyers should rely on the information contained in the prospectus when deciding whether to buy or not. The brochure was published by JLL for the express purpose of influencing a limited number of identifiable individuals and publication of the notice was irrelevant to that circumstance. The judge ruled that Mr. Walsh was among those to whom the leaflet was specifically addressed. He (the buyer) was influenced by the information published in the prospectus and relied on its content (including measurements) to calculate his accurate offer to purchase the property. It accepted the evidence submitted on behalf of the complainant as to what was common and accepted practice in the Dublin market. These were concrete statements of fact based on credible evidence. It is evident that there is evidence to the contrary of Mr. Rowan: but here the judge's role was essential.
the catalog
30. The judge carefully analyzed in detail the extent to which the property was written in rather large letters on the front page of the brochure as "2,142 m2 - (23,057 square feet) with a lot area of ​​0.13 hectares (0.31 acres)". On the last page, the brochure described the ground floor as 12,594 square feet and the first floor as 10,463 square feet. This resulted in a total area of ​​23,057 square feet as stated in the brochure. Corresponding dimensions are given in square meters.

31. Regarding the exception or waiver clause, the judge emphasized that it was at the bottom of the prospectus cover with the words "in very small letters". (See [2009] 4 IR 401 at 404.) The clause read: “While this information has been prepared with the utmost care and is believed to be accurate, it is not guaranteed and interested buyers/renters should ensure the accuracy of the information provided. In my opinion, your criticism of the brochure was entirely justified.

32. I would now like to explain further areas in which, in my view, the appellants' allegations are erroneous in law. Although not mentioned in the argument, the facts of this case differ significantly from those of Scullion v. Bank of Scotland Plc. [2011] IWLR 3212, where the Court of Appeal for England and Wales found (at p. 3226, para. 54) that a commercial buyer was “expected” to obtain an independent valuation (see Charlesworth on Negligence, 13th ed ., Sweet & Maxwell, 2014, p. 31, paragraphs 2-30). The actual findings here are entirely different and have been described.

33. In my opinion, the decisions of the Court of Appeals in Yianni v. Evans [1982] QB 438 and Smith v. Bush [1990] 1 AC 831, must be seen against their very own and different factual background. Contrary to Yianni and Smith, the issue in this case is not reliance on statements or representations made by construction/assessment companies from such sources. Therefore, such judgments lack any basis, and the present appeal must be examined in each case from the point of view of ascertaining the facts. Nowhere is it suggested that the defendants' evidence was not evidence-based. I see no reason to interfere with the judge's conclusions on these issues. The legal information below must be observed.
Assumption of Liability and Disclaimer
34. In law and economics, issues such as assumption of liability, waivers and termination clauses have implications far beyond the narrow scope of this case. Anyone involved in an online business will find these clauses part of the contract. In my opinion, a clause of such potential importance should be analyzed very carefully.

35. The applicants rely on the opinion of Lord Goff of Chieveley in Henderson v. Merrett Syndicates Ltd. [1994] 3 ALLER 506. On assuming responsibility he stated, S 521:

"It follows that once the case is determined to fall within the Hedley-Byrne principle, no further investigation should be required as to whether it is "fair, just and reasonable" at this point to impose liability for economic loss , I believe, of some importance in the present case. The concept also points out that under certain circumstances, for example in the case of an informal assumption of the obligation to provide the service in question, no assumption of responsibility can take place and the assumption of responsibility can also be refused by waiving. corresponding responsibility”. (emphasis added)
36. The applicants also cite a passage in White v. Jones [1995] 1 ALLER 691, pp. 715-16 where Lord Browne-Wilkinson, speaking for a majority in the House of Lords, stressed the importance of the concept of accountability to the following effect:
“As in the case of fiduciary duties, the assumption of responsibility referred to is the assumption of responsibility by the defendants for the task, not acceptance of legal responsibility. Even in cases of ad hoc relationships, it is the commitment to answering the question asked that creates the relationship. If the responsibility for the task is assumed by the defendant, a special relationship arises between him and the plaintiff in relation to which the law (not the defendant) is obliged to carry out the task so assumed with care.
37. The complainant's lawyer points out that the waiver relates to the information in the sales prospectus and requested the defendant to carry out the task of measuring the information itself. It is stated that the defendant was able to measure the area when the complainant allowed the property to be measured, but did not do so.
38. In Patchett & Another v. Swimming Pool & Allied Trades Association Ltd. [2009] EWCA Civ 717, the plaintiff suffered damages when the contractor he hired to build a swimming pool went bankrupt. Prior to hiring the contractor, the plaintiff consulted a website operated by the defendant, which stated that the association's members were credit checked when they became members and that their work was covered by a guarantee. However, it was not clear that the constructor was not a full member. Lord Clarke MR found that there was no assurance of continued solvency and that the plaintiffs had not taken the actions recommended by the website. In my opinion, a distinction must be made in the present case between the type of representation and the scope of the invitation.

39. In my opinion, not only the invitation is crucial; but also the presentation, i.e. the factual context, in front of which the invitation was sent. It is not just about principles of law, but about the application of those principles in the context of the facts established in this case. The real question here is whether the facts, and in particular the prospectus itself, have created a duty to use reasonable care to provide accurate information in the prospectus. If JLL owed that duty, she breached it by providing inaccurate figures.

40. If the disclaimer were clear to the average reader and therefore "correct", I would fully accept that the appellants could escape liability. However, the disclaimer in its form is a "rather insufficient means" to point out to potential buyers that the apparently accurate measurements of the floor areas so prominently displayed in the sales brochure are not entirely reliable, the trial judge found. He emphasized the very accurate nature of the numbers provided by JLL. He described the waiver, expressed in an "enigmatic sentence", in the small print, in which JLL would have explained that it had taken "all the precautions" in preparing all the details of the prospectus, also as part of the prospective buyers announce "themselves to be convinced of the accuracy of the information provided". He claimed that JLL itself surveyed and surveyed the property. This should accommodate potential buyers. They had the results published in the brochure, but the floor area was carelessly measured.

41. The judge found that the auctioneers had not taken reasonable steps to ensure that the information published was correct. He noted that no evidence was presented that potential buyers had measured the square footage of properties after a lease was signed but before it was completed. I do not disagree with any of the trial judge's descriptions of the liability waiver. Those were fair inference and observation questions, I think we could go further: the warning's font is best described as "small" rather than small. The conclusions from the facts were based on the evidence presented to you.

42. The criterion to be applied to the waiver is objective. What effect does the warning have on an objective reading in connection with the factual findings? The judge dismissed the suggestion that the words in the notice should cover all eventualities. His denial was supported by credible evidence from Mr. Walsh and his witnesses. I do not accept that an objective assessment of the disclaimer imposes a "clear duty of investigation" on the reader of the brochure or makes it clear to any reader that they should examine the contents of the brochure.

43. The applicant's lawyer stated that the terms of the disclaimer were clear and unambiguous. I do not agree. In my opinion, the communication itself contained several representations. The first was that this highly respected company took "extreme care" in preparing the details. Second, it was stated that the measurements were believed to be correct, although not guaranteed, and that prospective buyers should be assured of those measurements. This clause was ambiguous in that while it conveyed an invitation, it also contained a statement that acceptance of the invitation was not required.

44. In my view, it is wrong to simply assume that the mere existence of an 'arbitrary' disclaimer is sufficient. I do not believe that the above legal opinion in Caparo v. Dickman, cited above at paragraph 7 above, should be read broadly that any "disclaimer" is sufficient to indemnify Profor. In my opinion, what is decisive is an objective reading of what was said in the resignation. It included an explicit statement that the company had taken "every precaution". This has to be seen in the context of factual findings about practice in Dublin among auctioneers, appraisers and experts. This was not considered an inherently flawed practice.

45. Another fundamental question is to what extent the potential purchaser was notified when viewed objectively. Of course it is true that Mr. Walsh was aware of the existence of a waiver. But as the judge noted, he was not aware of its supposed scope. This was a reasonable conclusion based on the judge's assessment of the witness.

46. ​​​​​​​​​​In the eyes of a prospective buyer, the brochure, which was from a highly reputable company, conveyed that the company took “every care” in surveying the property. What else could a buyer believe? The brochure elsewhere conveys that these were accurate and precise measurements in square meters. Because of its reputation and the accuracy of the measurements, the company broke the news that the measurements were reliable. The use of the term "during" as a preface to the disclaimer does not change this.

47. Requiring a court to conduct a “consideration process” between one half and the other half of this Notice is in itself a rather artificial process. However, it might be helpful to look at the background evidence of how this warning was commonly understood. The notice included a confidence-inspiring statement of caution. I do not accept that an objective reading means that the reader should treat the last part of the notice as being in any way legally more significant than the first. I reject the claim that the first part of the notice is just what has been called "flowery language" and that only the last part is legally significant. A disclaimer can only be given the legal meaning conveyed by all the words it contains and the meaning that all such words taken together would reasonably convey. If there is any opacity or ambiguity, it should at least be interpreted strictly; if necessary, it is to be interpreted contra proferentem. I choose the first.

48. There is certainly something quite contradictory about it when a highly reputable auction and appraisal firm tries to argue that potential bidders should not, in fact, give full credit or have full confidence in their own representation. , who took “all precautionary measures” when preparing the measurements. In fact, the tests did not show at all that the company had taken "every precaution". The lower court found itself in a situation in which it could conclude that JLL had taken the measurements incorrectly and negligently or, alternatively, itself forwarded information communicated by others, taken it at face value and included it in the brochure without intermediary control. At the risk of repetition, the applicant has not relied on any evidence in this matter.

49. JLL had a duty to provide accurate information using reasonable care. If the company had such a duty, it would be in breach of that duty. In my view, there is only one answer to the question of whether, objectively speaking, the information on the website created a close relationship between the parties. He has. Likewise, I would argue that there is only one answer to the question of whether it is fair, just and appropriate to impose a duty of care. In my opinion it is.

50. I do not believe that the wording of the disclaimer or the findings of fact support the claim that there is some kind of 'first step' here, in which the reader is asked to take further steps. The reader was not informed that the numbers in the brochure were "estimates" or "approximate". One cannot help but conclude that the disclaimer was intended to induce a state of belief or trust, two fundamental attributes of all commercial transactions. The precise words and figures provided in connection with their presentation can only be taken as a statement of the complainant's own corporate belief in the truth of what is said in the prospectus and not a 'best guess' or 'estimate'. The measured values ​​contained are neither "flowery statements", nor assumptions, nor estimates, but gave the impression of statements of actual physical facts.

51. The applicant's counsel has referred us to the judgment of the Court of Appeal for England and Wales in McCullagh v. Lane Fox & Partners [1996] PNLR 205. There the Court of Appeals held that a real estate agent who negligently misrepresented the size of a property is not liable to a buyer who bought the property on the basis of the misdescription if the Description is incorrect was part of the disclosures included in the standard disclaimers.

52. At first glance, the judgment appears to favor the appellant. But what is revealing, and I think critical, is the form and wording of the disclaimer, which this court believed would advise the buyer to conduct their own checks. In particular, the notice rejected any assumption of responsibility for the statements contained in the leaflet. It told the recipient that if he or she chose to trust it, he or she should realize that the author of the statement took no responsibility for the accuracy of what was said. The nature and nature of the waiver were necessarily part of the factual circumstances and part of the transaction. Clearly communicating the issues for which regulators have and have not taken responsibility. He said, as stated on page 209 of the report:

"1. This information is not part of an offer or contract.
2. All information contained in this information about this property is provided without liability on the part of Lane Fox or the seller or lessor.

3. None of the statements contained in these details regarding this property should be construed as statements or representations of fact.

4. Any prospective buyer must verify the accuracy of any statement contained in this data, by inspection or otherwise.

5. Sellers make no representations or warranties in connection with this property and neither Lane Fox nor any employee of Lane Fox is authorized to do so.

53. What could be clearer? The terms of that communication were very clear. These auctioneers have stated that they disclaim any and all responsibility for the contents of the brochure. The discharge essentially negated one of the essential elements for the existence of a duty of care. The buyer has been informed that if he relies on the description contained in the prospectus he should be aware that the auctioneers are not responsible for the accuracy of the representations. There was nothing obscure or ambiguous about what he said. It wasn't in the fine print. The contrast to the disclaimer in the present case is obvious.
54. In my opinion, the trial judge carefully considered each of the principles identified in Wildgust. He performed the predictability and proximity tests to his satisfaction. He was satisfied that there was communication with a member of an identifiable class who would trust him. I think he was correct in claiming that the disclaimer implied a declaration from a company of the highest integrity that every care had been taken in preparing the prospectus. It concluded, based on convincing tests, that the information provided served a specific purpose and that in reality the buyer had been disclosed in circumstances where the company should have known that the information was trustworthy and would act accordingly. He insisted the rest of the waiver was legal. It would uphold the High Court's decision and dismiss the appeal.

Farrell vs. Ryan

[2016] ACEI 281
1. This judgment relates solely to the Complainant's decision by the Trial Judge (Cross J.) that the Complainant's claim for personal injury was not barred by the statute of limitations.

2. I have read Judge Irvine's decision on the applicant's appeal against the dismissal of her claim on the merits, and I agree with her finding that her appeal is dismissed. Given this conclusion, it is not essential to deal with the defendant's appeal of the law, but lest other plaintiffs in a similar situation to Ms. Farrell, it might be helpful to determine that as well.

3. For the reasons set out below, I understand that the coroner was wrong to conclude that the applicant's claim was not out of time.

4. Section 3(1) of the Statute of Limitations (Amendment) Act 1991 as amended by Section 7 of the Courts and Liability Act 2004 (“the Act”) introduced a specific statute of limitations for personal injury claims. Provides as amended:-

"3.(1) An action other than that to which Section 6 of this Act applies, seeking damages for personal injury to any person caused by negligence, harassment, or breach of duty (if a duty exists under a contract or statutory provision ). or independent of any contract or provision) shall not be brought after a period of two years from the date the cause of action arose or the date the injured party became aware (if later).”
5. The statute of limitations on the applicant's claim is based on what is likely the earliest point at which she had sufficient knowledge that she could bring a claim in relation to the harm suffered as a result of the prior conviction - existing symphysiotomy Christmas settled. about her on September 25, 1963 in Coombe Hospital, about twelve days before the birth of her first child. There are three competing dates to consider.
6. The first date is 18 February 2010 when RTE aired a prime time program on symphysiotomies performed in Dublin hospitals in the 1960's. Teeling, who had seen the programme, contacted her to say that they were interviewing a lady about what she believed to be very similar to what the complainant described as happening at Coombe Hospital when she had her first child. The complainant then switched on the television, but it was apparently too late as the credits were rolling. He didn't have time to key in a phone number, which flashed up at the bottom of the screen for anyone wanting more information on the subject. However, two days later, on February 20, 2010, he wrote to Coombe Hospital requesting their medical records of the time he was there for the birth of his first child in 1963. Although this letter was received by the hospital on February 26, 2010, your records were not received at that time. It appears that the hospital contacted her for more information as they were unable to follow up on her records with the brief information she provided in her letter. However, the applicant did not provide the requested additional information.

7. The second possible date is June 21, 2011, when he saw Vincent Browne's program on TV3, which dealt with the same subject. This is the date on which the plaintiff stated in her affidavit that Monica Teeling contacted her. But he was wrong, as the examining magistrate found. This contact was made during the Prime Time program as stated in the previous paragraph. Perhaps I should add that the applicant and Monica Teeling became friends in 1979 and later through their employment at the Jurys Hotel and from time to time have had conversations with each other and with other women about their childbirth experiences. The applicant knew that something had been done to her at Coombe Hospital 12 days before the birth because she recalled being taken to the operating room, drugged and then waking up in a very uncomfortable condition in her hospital bed, which she had been in described in your proof. From then on he had a series of physical difficulties, which he clearly demonstrated. Many of these difficulties accompanied her for years, and indeed some still exist today. However, it is clear from her testimony that she was unfamiliar with the term "symphysiotomy" and that is exactly what was done to her.

8. The third possible date for the accumulation of your cause of action and the one that the judge determined as the date from which the period began to run is August 2011, when you received your medical records at Coombe Hospital after a re-application he made after the Vincent Browne Show in June 2011.

9. If February 18, 2010 is the date your cause of action was originally incorporated into law, then your claim is clearly barred because you brought your action more than two years after that date, September 6, 2012. On the other hand, if your first appointment is June 21, 2011 or a date after the actual receipt of your medical records, your proceedings will be initiated within the time limits and will not be statute-barred.

10. In her replies to the detailed notice, the applicant stated that she first realized that she had undergone an unnecessary symphysiotomy after watching Vincent Browne's broadcast on 22 June 2011. She didn't mention the Prime show last time. Further details were requested in relation to this reply and as a supplementary reply, the complainant indicated that watching this broadcast she suspected that she might have had an unnecessary symphysiotomy operation and stated that this was the first time that she remembered hearing the name of the operation

11. Some question the accuracy of her statement that it was the Vincent Browne show in 2011 that first drew her attention to the possibility that she had undergone an unnecessary symphysiotomy in September 1963, due to a comment in a report that for her by a psychiatrist Veronica O'Kane. That report, which recounts the applicant's story, states: "A friend named Ms. Farrell following an RTE primetime program about symphysiotomies performed in Ireland" [emphasis added]. This is the show that aired on February 18, 2010. The author's testimony revealed that the only reason she searched her medical record for the first time was because her friend had made her aware of the symphysiotomy transfer and she wanted to determine if her symptoms were a result of that procedure. There is no doubt that on February 20, 2010, he searched his medical records for the first time.

12. Regarding this dispute as to which program first prompted the applicant to consult her medical records, the judge concluded at paragraph 6.7:-

“In all likelihood, I believe that Mrs. Teeling contacted the Claimant after the Prime Time Program because, by letter dated 20 February 2010, shortly after the Prime Time Program, the Claimant first sought her medical records in Combe. This letter was received by Coombe on 26 February 2010.
13. However, the trial judge stated that it was only in August 2011, after the Vincent Browne show on TV3, that the applicant received her medical records from Coombe Hospital and wrote to Coombe again to look for them. that the date of its knowledge for the purposes of the Act began and that up to that point it could not have had sufficient information to justify the initiation of proceedings. He said the following: -
"It was only at this point in time, when she was in possession of the hospital records, that it can be said that the plaintiff had the knowledge to 'justify the enforcement of the injunction'. I believe that until she received the necessary records from the hospital, the plaintiff was in the position of paragraph (4) of the Spargo judgment, that is, she may have thought she knew the acts or omissions she was supposed to be investigating, but the case was very likely that he was barking at the wrong tree. It is possible that at this point in 2010 she knew that the procedure performed on her was in fact a symphysiotomy, but she was not armed with information that would warrant prosecution of the defendants pending the facts. . Plaintiff's date of knowledge begins August 2011 when the records were made available to her [and] falls within the two-year period and therefore Defendants' guilty plea must fail under the statute of limitations.
14. Defendant first notes that the trial judge was satisfied that plaintiff's friend had contacted her during the Prime Time program in February 2010 and not during the Vincent Browne program in June 2010, which the defendant pointed out was it is always the case for the plaintiff in the petitions and in her evidence that she saw the first broadcast due to her friend's contact which prompted her to write to Coombe immediately to obtain her paperwork. In fact, plaintiff clearly offered no other explanation as to why she could have searched her records on February 20, 2010. It also notes that the date of jurisdiction of the cause of action cannot be the date that the cause of action was filed. Records, as this would mean that the time limit under the law could be extended indefinitely by the plaintiff's own inaction and would be entirely dependent on the plaintiff's own actions in searching her medical records. It is alleged that such an undefined and uncertain method of determining the timing of a cause of action may not be what the Oireachtas intended when they enacted the amendment regarding a knowledge test date for personal injury.
15. The Respondent alleges that it is clear that the Appellant knew that something had been done to her in Coombe on 25 September 1963 and that she subsequently encountered difficulties of which she was able to provide details as evidence. It is claimed that she was able to describe enough to her friend Monica Teeling about what was being done to her and the effect it was having on her that when Monica Teeling watched prime time she suspected that what had been done to her was a symphysiotomy . Of course, that's what Monica Teeling told her when she immediately looked up her medical records at Coombe Hospital. Defendant alleges that their failure to provide the information requested by the hospital to help them track their records would not be something they could benefit from delaying the date of providing their plea if she knew enough on that date to appreciate that may have a right. It is alleged that the trial judge wrongly concluded that the knowledge she needed was "knowledge that would justify the issuance of the warrant" and that she needed the medical records before reaching that point.

16. With respect to what the applicant knew on February 18, 2010, the defendants identify from the evidence they submitted the following:

• She was able to relate her birth experience to her friend and colleagues and knew that what had happened was not normal.
• She knew that she had had pelvic surgery in 1963 on September 25, 1963, twelve days before the birth of her daughter.

• Did you know that you had a suprapubic scar on your lower abdomen that you did not have before September 25, 1963?

• She knew that after the birth of her daughter she was unable to walk for a long period of time, that she could never ride a bicycle again (which she had been doing for a long time), that she had back pain that prevented her from doing her job properly on juries, and her friends helped her carry heavy trays and such.

• She knew she had never been able to cross her legs since then.

• It must be assumed that she thought/knew that she had sustained serious injuries as a result of what happened to her in Coombe in 1963.

(Video) Guide to Making a Medical Negligence Compensation Claim

• She knew from her conversations that others she spoke to had not experienced these postpartum symptoms.

• During his testimony, he recalled a specific conversation with Monica Teeling in 2006 when she told him what happened to her in Coombe and how it affected his life, and also said that he hadn't had another conversation with her in the meantime then and Monica Teeling's contact on February 18, 2010.

• However, he knew that Monica Teeling could tell him after the prime time show that what she had told him four years earlier therefore made it sound like he had a symphysiotomy.

• She knew enough about this conversation to decide that there was something she needed to investigate and that she should write to the hospital to get her records to that end.

• Although she testified that she had not known the word "symphysiotomy" prior to 2011, several physicians whom she consulted for other ailments in 2001, 2003 and 2007 stated that the medical history she provided was "a symphysiotomy”. She denies ever using the word because she had never heard of it, and the doctors involved testify that if she hadn't used the word they would not have noticed. Even accepting her evidence, it is clear that she was able to say enough about what procedure was performed for any of these doctors to understand that a symphysiotomy was involved.

17. The Defendant alleges that all of this makes it clear that the Complainant had extensive information, perhaps as late as 2006, but certainly by the time Monica Teeling spoke to her on 18 February 2010 about what she had seen in prime time decreed. he had suffered physical injury as a result of the symphysiotomy, and this is confirmed by the fact that within 48 hours of this conversation he wrote a letter to Coombe asking for his medical history.
18. Defendant identified a specific piece of evidence presented by Plaintiff about her conversation with Monica Teeling at the end of the Prime Time program. It is alleged that the applicant's case was based on this conversation, which took place as recently as June 2011, after Vincent Browne's concert. The level of knowledge that the complainant is said to have had until June 2011 is therefore to be attributed to her from February 18, 2010, since it must be about the same conversation, since she has not proven any other similar conversation. He just got the date wrong. The passage specifically referenced in this regard on Day 2 appears on pages 19-20 of the transcript as follows:

"A I actually haven't seen the show. This is what Monica told me I am referring to. I saw the end of the show where the credits were.
Q. But did you know what the show was about?

A. Yes, because Mônica told me what the program is about.

Q. After this show, did you have any suspicions that you might have had unnecessary symphysiotomy surgery?

A. That is correct.

Q. Why did you suspect that?

A. From Mónica's description, it appears that I had what they call similar effects.”

19. Given the Trial Judge's unequivocal conclusion that this interview did not take place on June 2011, as the Appellant had alleged, and based on the date of its first knowledge within the meaning of the law, but on February 18, 2010, which the Defendant alleges, the trial judge erred in his conclusion that only after receiving her medical reports in August 2011 did he have sufficient knowledge to proceed against her.
20. The applicant contests these allegations, asking the Court to take into account the very limited state of her knowledge of what had been done to her in 1963 and her attribution during her testimony to many of the symptoms, which she described as simply resulting from a forceps delivery It is alleged that the evidence accepted by the trial judge was predominantly that she did not know the word "symphysiotomy" on the days when she would have used that word when visiting the three named doctors in 2001, 2003 and 2007, and that he only became aware of the word in August 2011, when he received her notes, and that even then, reading the notes, what struck him most was that his daughter was difficult to resuscitate, and she even saw the word 'symphysiotomy ' which appeared to be crossed out in the notes.

21. It is alleged that his state of consciousness was at best a state of confusion, and that after his conversation with Monica Teeling on February 18, 2010, the best that can be said is that he suspected that she had undergone a symphysiotomy. . , but that she could not have known that it was an unnecessary procedure until she received her hospital records and that it had resulted in postpartum symptoms after her daughter was born.

22. There is clear evidence that the applicant knew that she had undergone a procedure in 1963, before the birth of her first child. She was able to demonstrate very vividly what she knew immediately after the operation and what difficulties and traumatic effects it had on her afterwards. But it is also clear that at the time she neither knew it was a symphysiotomy nor had heard the word. In fact, it's perfectly understandable that she hadn't heard of the proceedings, let alone what it entailed. It follows that at the time she was in no position to know or even to suspect that what was being done to her might have been unnecessary.

23. As I have pointed out above, in her replies to the details, the applicant explained that it was only after the Vincent Browne show in June 2011 that she realized that her symphysiotomy had been unnecessary and later clarified with additional details that that she only did so after watching this show suggested that she might have undergone an unnecessary symphysiotomy. He also clarified that this is the first time he's heard the name of the procedure.

24. Given the trial judge's conclusion that it was in fact the primetime show in February 2010 and not the Vincent Browne show in June 2011 that first brought these matters to her attention, as at the time she immediately went to Coombe Hospital for her documents, these answers for details should be read mutatis mutandis with reference to the program above.

25. The question that then arises is whether the information the applicant had on 18 February 2010, which led to her obtaining her medical records from the hospital, was sufficient "to mark the point in time when the law began to run", as suggested by McGuinness J. in Cunningham v. Neary [2004] IESC 43, or if, as the trial judge found, that point was not reached until receiving his files in August 2011, after re-requesting them under the Vincent Browne program.

26. As the Defendant pointed out, media information may be sufficient to provide sufficient information to start the clock for the purposes of the Act. It was also indicated that, for this reason, the Claimant, in her replies to Details, linked her first contact to the date she watched Vincent Browne's program (which must now be considered a prime-time programme). In this sense, McGuinness J. said in Cunningham v. Nearby [top]:

"In Gough v. It [seems] almost clear that the plaintiff's "knowledge" that her surgery was unnecessary came only from media reports in December 1998. This was the fact that he "could, at least upon further elaboration, identify a cause of action." There is no evidence that he had a medical report before the initiation of proceedings against the defendant. The knowledge, based on media reports rather than full medical knowledge, was the "knowledge that her hysterectomy was unnecessary" that the court retained to mark the point at which the law began to run".
27. It is incorrect as a general statement that an applicant can wait to receive their medical records before the time limit under the law begins to run against them. This would give the author control over when the time starts running as it would depend on how long the author wants to wait before searching through their records. If an applicant undergoes an operation or procedure and then suffers adverse consequences in the form of physical injury that can reasonably be attributed to what was done, she need not wait for her hospital records or other records to arrive before she can know that she has a reason to act.
28. On the basis of this general comment on the present case, the question arises whether what the applicant knew at the time when she wrote to Coombe Hospital on 20 February 2010 was sufficient to turn the clock against her. We know from your statement that you weren't watching prime time. So she did not receive any specific information from this program itself. It was clearly the combination of what she knew had happened to him, the aftermath of what had been done and what she had told Monica Teeling over the years, and the information she had found that made her caused his records to be searched. can get. based on what he had seen on the show and that he suggested to Monica Teeling that what the applicant had done to her was a symphysiotomy.

29. Everything she knew at the time was enough to make her want to consult her map. I consider that the Defendant is correct in recognizing at least part of what the Appellant knew on February 18, 2010, as stated by me in paragraph 15 above. In my opinion, the trial judge was wrong to conclude that she needed to know more than that before the law began to run, and in particular that she needed medical records before it could be said that he had sufficient knowledge to to justify prosecution. In my opinion, this was the wrong test. He didn't need to know right away that he had a good case. It was enough that she had enough knowledge to link her injuries to the procedure she knew had been performed on her in 1963, and as she herself admitted in her testimony on February 10, she knew 2010 that the symphysiotomy she underwent was unnecessary. . I think the evidence is clear that she had this knowledge on February 18, 2010. The medical records would certainly detail the knowledge she had, but it wasn't a requirement for time to start ticking.

30. It would therefore allow the defendant's cross-appeal and dismiss the plaintiff's action, also on the grounds that the limitation period had expired on the day the present proceedings were opened.

McGee vs. Alcorn

[2016] IEHC 59

1. In this case the question is whether the plaintiffs are entitled to claim damages from the second defendant for economic losses in connection with a negligently built house. The claim relates to the costs of the work completed to date and planned future work, including the cost of alternative accommodation during the planned work. There is also a right to compensation for pain and suffering.

2. The main cause of action against this defendant, who is a construction engineer, is that he issued certificates showing that he inspected the construction, that the foundation of the house was sound and that the soil conditions were sufficient for the foundation. It is a common case that the foundations were actually defective and built on unsuitable ground.

3. The defendant has admitted negligence on his part. However, it says it bears no responsibility for the plaintiffs' losses. On the one hand, this is based on the argument that the cause of action brought against you is negligence and that damages for pure financial losses cannot be asserted in a negligence action.

4. Second, he claims that he was already in a relationship with the first defendant (the builder) and that he had no duty of care towards the buyers of the house.

5. Thirdly, the scope of the claims made is questioned on the grounds that the proposed works (unlike those already carried out) are necessary only from an aesthetic point of view and will involve a disproportionate cost compared to the value of the dwelling.

background facts
6. The applicants are a married couple with three young children. They lived abroad for a number of years and moved to County Donegal in 2008. The first plaintiff is a self-employed mechanical engineer. His family is from the area and his parents ran a business originally in construction but specializing in monumental tombstones. The plaintiffs eventually took over management of this company after moving to the county. The second named candidate is a teacher.

7. The first-named defendant is a building contractor. With a contract dated July 8, 2008, the plaintiffs acquired a new residential building he had built. (This defendant vacated the jurisdiction and a default judgment was entered.) The purchase price was €430,000.

8. The house is large, about 16.3 meters long. A conservatory at the west end brings the total length to 21 meters. It can be seen that the plaintiffs have taken great care in maintaining it and that both the house and the garden are very well maintained.

9. Although the house looks impressive, it was built on an oddly flawed foundation. For some reason, the former accused built the foundation in the shape of a rough V, tapering to a point at the bottom. Two arched windows at the front of the house were unsupported and simply rested on the ground.

10. To make matters worse, the soil on which the foundation was placed was insufficient and was partially 'composted' or 'filled up'.

11. Defendant 2) has a technical degree in architecture. On April 9, 2008, she issued two certificates. One is entitled "Certificate of Supervision". In this document, he confirmed that he had participated in the construction of the house during the various phases of construction and had monitored the construction progress at various stages, including the opening and the laying of the foundation stone. I confirm that:

"...the foundations were satisfactory at the time of pouring and the soil conditions were suitable for the placement of such foundations in relation to the property."

12. It also certified that good building materials and workmanship were used throughout the property and that the property was structurally sound and conformed to good practice. He has attached a copy of his professional indemnity insurance.

13. The second certificate is entitled "Certificate of Conformity". In that document, the second named defendant confirmed that the first named defendant had hired him to inspect the house. He pointed out that, in his opinion, the construction of the house essentially corresponded to all applicable building standards.

14. During 2009, cracks appeared in the house. These became more serious and eventually in 2012 extensive work (at an agreed cost of €129,000) was undertaken to support the foundations. The house is now structurally sound and secure. However, it was left with a permanent bias. The plaintiffs want to remedy the situation with more extensive work, which will cost around 277,000 euros. They say this is necessary to make the house "correct" in relation to what they bought.

15. The action brought against this defendant seeks damages for negligence, breach of duty and breach of statutory duty. The original application claims in paragraph 2 that he was always the examining architect of the property and that he submitted a certificate that the relevant work was carried out in accordance with the building code and in accordance with the law and a certificate that the foundations present were satisfactory.

16. The data invoked are the following:

“a) Failure to properly supervise or fail to supervise the construction of such works.
(b) failure or failure to take appropriate steps to ensure that such construction work conforms to building standards and to ensure that the building conforms to those standards.
(c) The lack of proper and/or reasonable inspection of the building and work in progress.
(d) Failure to provide adequate and appropriate plans specific to the construction requirements of the dwelling.
e) The lack of determination to solve the problems that have arisen in this House.
(f) failure to correct or observe the above defects or errors.
(g) not instruct the First Defendant to remedy or remedy such defects or omissions.
(h) failure to give any or no appropriate instruction to open any of the said works for inspection.
(i) approving the work, including defects and errors.
(j) he acted or refrained from doing the foregoing and issuing the final certificate if he knew or should have known of such defects or errors.
(k) failure to properly detail or design such works.
(l) to certify such work, if not correct, and in particular to certify that the foundations were satisfactory at the time of execution and that the ground conditions were suitable for the placement of the foundations in relation to the property."
17. In a legal notice from the second defendant, clarification was requested, among other things, as to whether the plaintiffs claimed that the defendant owed them a duty of care with regard to the construction of the property; Specification of the facts asserted in support of the due diligence claim; and clarification of the reasons on which the plaintiffs relied on the two certificates he issued. The answer to these inquiries was that the plaintiffs referred to the certificates submitted by the second defendant in the case of new buildings.

18. In his defense, the second defendant argued, inter alia, that the Complaint did not disclose a valid or reasonable cause of action against him; that he was unfamiliar with the contract of sale; that the applicants have no right to rely on his certificates and that he is not liable to them for the alleged deficiencies. He denied that he owed them any duty of care, that he was guilty of alleged negligence and that he caused the alleged damage.

19. Prior to the hearing of the case, however, the second defendant admitted negligence on his part, but provided the plaintiffs with evidence of his claim and his right to recover against them for the economic damage they suffered.

20. The defendant has provided no evidence of the extent of his supervision or other involvement in the construction of the house. The only proof on this point is therefore the fact that he issued the certificates.

21. The necessity of the foundation work carried out is not disputed, whereby the defendant (without prejudice to its indemnity from liability) has agreed on the values ​​regarding the costs of this work. However, he questions the necessity of the proposed work. He claims the slope could have been corrected at the same time as the foundation work, with a little more effort. He also argues that tilt is just a blemish and even in that context is irrelevant. It is claimed that the proposed cost is disproportionate to the value of the home.

The damage in the house
22. During 2009, cracks appeared in the walls of the house. Cracks in the ground also began to appear. The plaintiffs contacted the former defendant but received no help from industry. Finally they hired Mr. Francis Harvey, a qualified engineer in private practice and a member of the Association of Consulting Engineers. With their help, it was finally determined that the problem was caused by the foundation of the house.

23. On April 27, 2011, Mr Harvey carried out a full home inspection. He noticed a large crack between the main kitchen/dining room floor and the conservatory floor, which he measured with calipers. There was also a large crack diagonally and vertically above the back door. Tweaked a "developer" about it.

24. A follow-up inspection on September 14, 2011 found that the crack in the floor had increased by 4 mm and the crack above the door by a further 1 mm.

25. On September 16, 2011, floors were leveled throughout the first floor. From the right side of the house to the left gable there was a transverse gap of 90 mm.

26. Test holes were dug around the outside of the house in February 2012. The floor along the left side of the house has been 'remodeled' or 'filled in'. It was evident that the site had been leveled many years before foundation work began. The infill was laid on top of the sod, under which was a layer of peat and a layer of blue tillage. Mister. Harvey said it is never good practice to build on reclaimed or reclaimed land.

27. Mr. Harvey described the foundation as tapering downwards. He said this was "very unusual" and something he had never seen before. Someone would just stick a spike into something if they wanted to drive it into the ground, whereas the purpose of a foundation is to distribute a load. The thickness of the foundations varied and the outer surface was extremely curved.

28. The block with the two bay windows at the front of the house was simply built on the ground without any foundation.

29. When asked if the house would have collapsed without repairs, Mr Harvey said he didn't know if it would have collapsed, but there was evidence of movement and it would certainly have continued to topple "to an unbearable extent". .

30. Mr Harvey said he considered other options for stopping the movement than supporting it. Stacking would not have worked as it requires a vertical rather than curved surface on the foundation to insert tie rods to attach the foundation to the piles. It was also not clear if there was reinforcement in the foundation, so it was in danger of piling up. In his opinion, it was an "incredibly bad" base and the level of the workforce "pathetically bad".

31. He says he also considered robbing the house. However, this technique requires a solid foundation, or as he described it "a decent solid board" to go on for the house to stand as a unit. In this case the foundations rested on solid ground that was grass, which was peat. There was no consistency in the foundation and part of the block (below the windows) was built on grass. If someone tries to lift a corner, there is a chance that corner will lift and break. Therefore, he did not ask sheeting contractors to consider using jacks.

repair work
32. The papers were treated in tests and written under the titles 'Phase 1', 'Phase 2' and 'Phase 3'.

Phase 1

33. This work has already been carried out and as indicated a cost of €129,000 has been agreed.

34. In April 2012, Mr. Harvey and the plaintiffs met with Sub-Tech Contracts, a London-based company specializing in support. It was agreed that based on the test pit results, piles would not be a viable solution and would require fixed bed shoring. Work began in early July.

35. The water table passed from the right side and back of the house under the foundation, and it was necessary to dig drainage ditches around the house and install gabion baskets before shoring. In addition to the excavations, the garden was used for the storage of excavated material and excavation throughout the duration of the works. The curbs were damaged by the heavy vehicles and machinery needed for the work.

36. Shoring required digging vertical shafts along the outside of the foundations at various depths until a solid foundation was found. These wells had to be supported and lined with wood. At a depth of about 5 meters, horizontal tunnels of about one meter in length were dug under the house and then vertical concrete columns were placed under the existing foundation and firmly compacted.

37. To support the two inner walls it was necessary to dig a tunnel from the front to the back of the house to insert the pillars.

38. Mr Harvey said that the basis was highly skilled and very good quality work. In his opinion, the house is now "very well stabilized" and will not move any further. However, he says he was aware at all times that the cross had fallen into the house and that propping it up would not correct it.

39. It is important to note that in early August 2012 Mr. Rory McLaughlin, a consulting engineer hired by the second defendant's insurance company, was at the scene. At his request, a test hole was dug to a depth of 5 meters on the left side of the house. Mister. This gave McLaughlin the opportunity to observe the soil conditions and the condition of the foundations. He does not seem to have made any suggestion that the work was unnecessary or that it should be done differently.

40. According to the plaintiffs, they were denied a bank loan to pay for their work and used all their savings and the savings of their children, with the help of family and friends, to pay. Health insurance has been canceled. They used the resources of the family business as much as possible.

41. Although the family did not move during the work, it is clear that their lives were severely affected during the period in question. The work was obviously intense, noisy and confusing. The large holes created a risk to the plaintiffs' young children.

Level 2

42. The figures for this phase are not agreed. This concerns the renovation of the house and the rehabilitation of the garden after the completion of the phase 1 works. According to the complainants, all the rooms at the end of phase 1 had not been completely redone, at least fine cracks. Electrical and plumbing work completed.

43. The exterior work was carried out in 2014. They consisted of concreting the back, removing and replacing old curbs and steps damaged by trucks and machinery during the work, and leveling and replanting the lawn. Much of this work was carried out by the family business with the help of subcontractors. Photos taken during phase 1 and after phase 2 show that a complete mess has turned into an impressive area.

44. The authors' claim for Phase 2 is €38,525 including VAT. The former author stated in evidence that the prices charged by the family business were much lower than commercial prices and that it was able to source materials directly from manufacturers at lower than retail prices. Invoices have been made.

45. Defendant 2 advocates a value of almost EUR 26,000 for these works.

Phase 3: slope and chimneys

46. ​​The proposed works include the removal of the roof, windows and doors; the insertion of new sills and lintels; raising the floors, which requires the removal of the underlying pipes; Dismantling of kitchen and service furniture; the removal of chimneys on the ground floor; Replacement of all stucco work and installation of new plumbing and electrical installations.

47. Defendant says this is tantamount to tearing down a "perfectly good," structurally sound house and building a new one.

48. Mr Harvey was asked to inspect the house again for tilt in January 2015. Previously, as noted above, we experienced a 90mm (just under four inches) transverse drop down the full length of the house. At the time, he hired a company to take digital measurements, which confirmed his belief that there was a transverse fall through the house.

49. Mr. Harvey says that since the floor is not horizontal, the walls are not vertical and the ceiling is sloping. Windows and doors are also affected. The complainants say there is a problem with all the internal connections. They hung them back up and adjusted the hinges, but when partially open they all open to the left. Plaintiffs are required to use doorstops and find this irritating.

50. Mr Harvey said that as an engineer conducting building studies for prospective home buyers, because of the slope he would like to know what work has been done to prevent the house from moving. An engineer who has not observed the work done as he does may not be as confident as he is of the work's success.

51. When asked about the cost of the proposed work, Mr Harvey said that much of the cost was due to the 'domino effect' of carrying out a particular work. To create a level, level floor throughout the house, heating pipes and other plumbing under the screed would have to be removed. Reconnecting them would require new wiring. Likewise, straightening the walls would mean moving the plugs. This would affect the wiring and most likely the existing wiring would not reach the new outlets.

52. While it is not necessary to have level ceilings in all rooms, Mr. Harvey believes that a sloping ceiling in a room is noticeable.

53. The proposed solution to the sloping gable walls (building conical walls close to them) was, in Mr. Harvey, far less drastic than tearing them down and rebuilding them.

54. Mr Harvey goes out of his way to stress that the proposed works must do 'a lot from an aesthetic point of view' and the house 'right' from a human point of view. The house lacks nothing structurally.

55. Plaintiff's expert Mr. Clarke valued the proposed works at €277,060.99 including VAT. Demolition and new construction would cost significantly more, he says. Estimates are based on reusing existing wood and tiles where possible.

56. The defendant's engineer, Mr. Ian Duckenfield, is a structural engineer with a particular interest in structural damage. He toured the premises in April 2015 and found it to be "an exquisite, perfectly functioning home". He agreed with Mr Harvey that there was nothing structurally wrong with the house as it currently stands.

57. He said he went to the house expecting to see serious problems but with one possible exception nothing was seen. The exception was that when looking at the house with the garage in the background, one could see that the wall of the house in relation to the garage had fallen.

58. Based on the dimensions of the house, he calculated the average cross slope to be 4mm per meter or 0.4%. He said it was "essentially undetectable". However, he said, this is average. The western (right) portion of the house was essentially flat, while the hallway was the worst area. In this area, as he knelt down, he could well see a cross falling. In contrast, the transverse waste in the kitchen and dining room was only 10 mm.

59. The east (or left) gable wall was described by Mr. Duckenfield as "a little inconsistent" as parts of it were definitely not plumb, parts were "in place of" plumb and other parts were slightly sagging. out of plumb There are allowable tolerances for masonry to be demolished and such a wall may be 15mm thick and still be considered perfectly adequate. He would argue that 70mm in a wall reinforced by other walls and internal and external chimneys was not a structural problem. There is, he said, no perfectly vertical wall.

60. Mr Duckenfield said that the pitch of the roof was imperceptible without a spirit level.

61. Mr Duckenfield characterized the problems with the house as cosmetic and very minor rather than structural. They did not justify the proposed cost.

62. Mr Duckenfield considers that the lifting work could have been carried out during the shoring work. He describes this approach as unusual, but recognized. In this context it would have been necessary to stop the load-bearing concrete pillars in front of the existing foundation and then to use a hydraulic jack between the pillar and the foundation. Mr. Harvey's that there was nothing to "secure" did not come up because the pillars were built on good ground. Holes would then be drilled into the floor slab and a geopolymer injected under pressure. This would expand, and as it expanded, it would increase the floor. The jacks would also be used to erect the walls. It would require multiple jacks spaced about two meters apart, operated by a specialized team of about half a dozen.

63. Mr. Duckenfield accepted that the process he described required both the underside of the foundation and the top of the supporting concrete to be firm and level.

64. When asked about the additional costs that might have been involved, Mr Duckenfield said the costs were not his area of ​​expertise but he believed they would have been in the order of 15,000 euros.

65. They were told that Mr Harvey was due to render judgment in 2012 and that it was inappropriate for the plaintiffs to proceed with the proposed course of action. He agreed, saying that Mr. Harvey had discovered that the house was continuing to settle and halted this movement and also the possibility of structural instability.

Phase 3 - the chimneys

66. Plaintiffs' evidence is that there is a problem with the fireplace in the conservatory. Sand falls into the chimney, indicating cracks in the chimney liner.

67. Mr Harvey said it was not possible to install new chimneys without opening the chimney cap. In his opinion, the best way to do this is to tear it down and rebuild it.

68. Mr Clarke included €9,240 for the chimneys in his overall estimate for Phase 3. He said doing it yourself without the other work would cost between €2,000 and €5,000 more.

69. Mr Duckenfield says it is not necessary to dismantle the chimney to replace chimneys.

70. Plaintiff's appraiser says that this house in this location could have sold for €285,000 if it had not had the history it does. However, the appearance of touched-up plaster can give the impression that structural problems are being disguised. Also, most people in the area would know that the house had a history, and he believed there was a stigma attached to it. Otherwise it was a good house and a professional appraisal would show it to be structurally sound.

71. Refers to what he describes as "weird" things, like doors closing or the shower door closing on its own.

72. Because of the problems with the house, he estimates that its value has fallen between 35 and 50%. When asked if he was referring to a value between 155,000 and 185,000 euros, he agreed.

73. Defendant's appraiser agrees the value of €285,000 in the "no problem" scenario and accepts that there may be some depreciation. However, he thinks it is a nice and solid home. He estimates that a discount in the range of 10% to 15% would be reasonably acceptable.

74. It should be noted that the applicants are very satisfied with the location of their home and have no desire to move.

75. A. Connolly SC claims that the work already carried out was necessary for health and safety reasons. The proposed works aim to enable the plaintiffs to have a home free of defects as they should have had it from the start.

76. It is argued that Irish case-law on the issue of pure economic damage from negligently constructed buildings is clear and supported by Ward v. McMaster & Ors. [1985] 1 I.R. 29 (Higher Court) and [1988] I.R. 337 (Supreme Court). According to the Superior Court of Costello J., damages to a defective building are recoverable for all aspects of the damage, including the cost of repairing structural defects. The Supreme Court's decision in this case is said to have upheld the Supreme Court's decision on the issue.

77. It is recognized that Glencar Explorations p.l.c v. Mayo County Council (No. 2) [2002] 1 I.R. 84 and in Beatty v. The Rental Court [2006] 2 I.R. 191 some doubts were raised about Ward v. McMaster, but Mr. Connolly argues that the observations in these cases were obiter and that Ward v. McMaster was not revoked.

78. It is alleged that in the present case there was an undeniable proximity, since the certificate produced by the defendant was given to the applicants knowing that they were reliable. The resulting damage was predictable. It is fair and reasonable that the plaintiffs are compensated for damages resulting from defects that should have been discovered by the defendant.

79. Reference is made to Leahy v. Rawson [2004] 3 I.R. 1 when a surveyor has been awarded damages for all work, not just that which might be characterized as structural. Likewise in McShane Wholesale Fruit & Vegetables Limited v. Johnston Transport Company Limited & Anor. [1997] 1 I.L.R.M. 86, all items have had their damage fixed. In that case, Flood J. specifically refused to comply with the decision in Colgan v. Connolly Construction Co (Ireland) Ltd. [1980] I.L.R.M. 33 in the sense that the loss was only recoverable in relation to structural work necessary to prevent personal injury.

80. Alternatively, it is argued that the Court should not approach the case on the basis that pure economic loss is recoverable for some damages but not others, rather on the basis of evidence such as proximity. It is argued that this is the dominant issue in English authorities and is not at odds with either Glencar or Ward. At Glencar, Keane J. had accepted that in cases of negligent misrepresentation, pure financial loss was recoverable. This, it is argued, is a subset of negligence. Although plaintiffs' action alleges negligence, it is based on negligent examination and misrepresentation of facts in the completed certificate. The representation should be used by the first buyers of the house, which creates a closeness and a duty of care. The damage suffered by the plaintiffs was foreseeable and there are no public policy considerations that could be invoked to relieve the defendant of liability for all the damage suffered.

81. On behalf of the defendant, Mr. Marray BL alleges that the nature of the damage for which the plaintiffs seek compensation is purely economic damage, in the sense that the case is a purely qualitative defect and not a is a defect that causes personal injury. or damage to other property. He argues that the law on Glencar's matter is clear: such damages are not recoverable in a negligence action. It is alleged that Keane C.J. if so, it was not Obiter that Geoghegan J. erroneously says in Beatty and in Wildgust v. Bank of Ireland [2006] 1 I.R. 570 Kearns J. seems to refer to it as the law. Therefore, it is argued that Irish law distinguishes between a negligent pecuniary loss claim, which must fail, and a negligent misrepresentation claim, which can succeed if the criteria are met.

82. It is alleged that the plaintiffs have not brought an action of negligent misrepresentation and, in any event, there is not the requisite degree of proximity between the parties to warrant such an action. The defendant had no contract with the plaintiffs. The certificate was given to the seller, not the buyers. Buyers could invoke it against the seller but not against the person who issued the certificate unless the criteria for negligent misconduct were met. In the present case there was no contract between the parties, no advice from the defendant to the plaintiffs and no representation by the defendant towards them. You cannot make a careless and false statement to the world, there must be a duty of care.

83. Returning to the details of the work done or proposed, Mr. Marray agreed on values ​​for Phase 1 but not for Phase 2. The proposed Phase 3 work, he says, would mean undoing almost all of the previous work make. , are necessary aesthetically rather than structurally and would cost disproportionately to the value of the home. A compensation payment must be reasonable and take into account the principle of damage reduction. The evidence shows that the house could be sold as is.

The authorities
Ward gegen McMaster & Ors. [1985] 1 I.R. 29 (HC) [1988] I.R. 337 (CC)

84. The first named defendant was a master builder who was building a house for his own trade. Years later it was acquired by the plaintiffs. To make the purchase, they applied for a loan from the second named defendant, the local authority, under the Housing Act 1966, who was an auctioneer. Therefore, the person who inspected the house was a surveyor, not someone with any building skills. He found no defects and reported that it was in good condition.

85. Problems soon arose and an engineer hired by the plaintiffs reported that the house was structurally fragile, a source of danger and a health hazard.

86. Regarding the Supreme Court, Costello J. described the problems as follows:

• Whether the builder owed the plaintiffs a duty of care as builder and seller;
• Whether the municipality had a duty of care when granting the loan in carrying out its statutory duties; It is
• Whether auctioneers had a duty of care in conducting the valuation.
87. Costello J. noted that the abolition of the old principle that builders should not be held liable for tortious damages in relation to defective buildings in England “was enacted by the House of Lords in Anns v Merton London Borough [1978] B.C. 728. Which decision rejected the suggestion that Donoghue v. Stevenson [1932] B.C. 562 does not apply to real estate. He quoted the judgment of Lord Wilberforce in Anns and in particular the following passage:

“The position has now been reached that in order to establish that a duty of care exists in a particular situation it is not necessary to relate the facts of that situation to previous situations in which a duty of care has been identified. . Rather, the issue must be approached in two steps. The first question to be asked is whether there is a close relationship, or a sufficiently close relationship, between the alleged delinquent and the injured party that, on reasonable consideration of the former, negligence on his part is likely to have caused damage to the latter where prima facie a duty of care exists. Second, if the first question is answered in the affirmative, it is necessary to examine whether there are considerations which should negate, limit or limit the scope of the obligation, or the persons to whom it is owed, or the damage to which it does not lead -compliance can To give reason. ."

88. Costello J. also referred to Siney v. Dublin Corporation [1980] I.R. 400 for significantly advancing the law in that jurisdiction by applying Donoghue v. Stevenson to a local authority's exercise of powers to inspect properties granted but not built by it. He felt that while Siney was dealing with a duty of care in relation to an inspection carried out under statutory powers, and not a duty of care on the part of a common law builder, he strongly supported the English approach then in vogue. He was convinced, both on principle and on authority, that a builder had a duty to look after the person to whom he would later sell the house, based on the neighbor principle in Donoghue v. Stevenson.

89. In examining the scope of that obligation, Costello J. referred to Junior Books v. Veitchi [1982] 3 W.L.R. 477, where a subcontractor was found liable for economic damage in relation to a negligently constructed production facility. The majority in the House of Lords saw this as a natural outcome of the revision of Donoghue v. Stevenson in Anns v. Merton London Borough.

90. In Junior Books the House of Lords rejected the contention that the subcontractor's duty was limited to the duty to avoid foreseeable damage to person or property (beyond the subject matter). Applying Anns principles, subcontractors should know that if the work is done carelessly, owners will end up spending money on corrective action.

91. Costello J. said he found Junior Books' argument persuasive and had no difficulty applying it.

"It follows that the concept of reasonable foresight is not only to be used to decide whether there is a duty of care in an individual case, but also to determine its scope. Applying that concept to the present case, it seems to me that the defendant's duty of care to the purchaser of the bungalow it had built related to latent defects which could not be detected by the type of inspection which the purchaser could reasonably have expected have. do before occupying the house. However, the duty was not limited to preventing foreseeable damage to persons or property other than the bungalow itself (i.e. the duty to avoid dangerous hidden defects in the bungalow), but extended to the duty not to cause economic damage to the buyer who resulting from hidden vices. in the bungalow itself (this is a must to avoid defects in build quality). It also seems to me that the defendant should have foreseen that if he built the bungalow so badly that he would force the plaintiffs to leave, it would cause them inconvenience and inconvenience and therefore he had a duty to the plaintiffs, no hidden ones Causes to cause defects that would lead to such inconveniences.

92. Costello J. further elaborated on the responsibility of the local authority. It contended that there was a sufficient relationship of nearness or proximity between the parties that, in the Council's reasonable deliberation, the negligence of its role in evaluating the bungalow could cause damage to the plaintiff. Given his lack of resources and knowledge that he would be examined, they should have realized that he was unlikely to hire a professional to examine him personally. This results prima facie in a duty of care that nothing in the relations between the parties can or can limit. Given the purpose of exercising statutory powers, it is compatible with those powers that they are accompanied by a duty of care under private law. It is also fair and reasonable to assume that a duty of care has arisen. The plaintiff relied on the Board's assessment and it should have known that he did so.

93. He considered that the scope of the Council's duties is one of foreseeability and reasonableness. The duty was to ensure that the person conducting the valuation was able to discover reasonably identifiable defects that would significantly affect its market value.

94. The claim against the third-named defendant was dismissed. He had worked as an auctioneer and the level of care required of him was that of an ordinary qualified auctioneer. The plaintiff has not shown that he should have discovered the hidden defects in this capacity.

95. Only the congregation appealed. The report on the Supreme Court decision shows that the grounds for the appeal were limited to the existence of a duty of care, the issue of foreseeability, and the argument that the decision not to hire engineers for inspection purposes was a matter of policy discretion of the council. The question of damages remained open and was subsequently clarified without a hearing.

96. Henchy J. considered it unnecessary to analyze the "different and not always compatible approaches" of the authorities cited before the Court, since it was possible to decide the case according to "well-established" principles. The fact that the council failed in its statutory duty to ensure that the home constituted good security for the loan would not in itself be sufficient to give the plaintiff a cause of action, but the statutory duty in relation to the Providing the house in its area created a special relationship between the parties. The applicant could only avail the loan if they could prove that they would otherwise have to be relocated from the city due to financial hardship. Therefore, he could not be expected to hire a surveyor. Henchy J. therefore felt that under the circumstances the board should have expected that the plaintiff would have relied on the inspection carried out by his appraiser and owed him the duty of making a proper appraisal to ensure that the house was a good security for the loan.

"It would be unscrupulous and unfair for them to escape liability for negligence on the grounds that the plaintiff should have taken steps himself to ensure the house was in good condition. In view of the Council's legal rights and obligations, it must be assumed, in my view, that it had a duty towards the plaintiff to exercise due care in appraising the house and that it failed to do so.

97. McCarthy J. accepted that Anns was the "high point" of Donoghue v. Stevenson, however, said he would not attempt to water down the passage quoted by Costello J. He found the in Sutherland Shire Council v. Heyman (1985) 59 A.L.J.R. 564 or Yuen Kun Yeu c. Hongkong AG [1987] 3 W.L.R. 776 to convince. on p. 349 said:

"Although Costello J. essentially based his conclusion on "fair and reasonable" evidence, I prefer to note that the duty arises from the proximity of the parties, the foreseeability of the damage, and the lack of a mandatory public policy indemnity." . . I do not in any way wish to exclude the latter consideration, although I recognize that such a consideration must be very strong when used to deny an injured person his right to redress at the expense of the person or body that injured him.

98. McCarthy J. noted that the proximity of parties such as mortgagors and mortgage lenders creates a duty of care.

"It is a simple application of the principle in Donoghue v. Stevenson [1932] BC 562 confirmed in Anns v. Merton London Borough [1978] BC 728 and implied in Siney v. Dublin Corporation [1980] I.R. 400 that the relationship between the first applicant and the county council created a reasonable duty of care arising from the county council's public duty under the Act. The law does not establish a private obligation, but results from the relationship between the parties.

99. He also considered it foreseeable that the applicant would rely on the supervision of the Council.

100. These two considerations were contained in the first part of the Anns Principle, and it had not been argued that there were considerations intended to negate, diminish or limit the scope of the duty, the class of persons to whom it belongs, or the prejudices , which may cause their non-compliance, in the second phase.

101.Finlay C.J. and Griffin J. agreed with both sentences. Walsh J. only agreed with McCarthy J.'s verdict.

Glencar Explorations p.l.c. v. Mayo County Council [2002] 1 I.R. 84

102. The Glencar decision concerned an action for damages in connection with a mining ban that the contested local authority had included in its development plan. The ban was overturned in a judicial review as the High Court found it ultra vires. In pursuing the compensation aspect, plaintiffs contended that its acceptance involved negligence, among other errors of law. In Superior Court, Kelly J. accepted that the board acted negligently, acting in a manner that no sane local authority would have acted, but maintained that there was no duty of care between the parties.

103. On appeal, the Supreme Court agreed that the defendant had no duty of care. The basis for this was the fact that, by adopting the development plan, it exercised powers for the benefit of the community as a whole and not for the benefit of a specific group of people to which the applicants belonged. Therefore, there was no close relationship between the plaintiffs and the defendant that would justify liability.

104. Plaintiffs relied on Donoghue v. Stevenson, Anns, Siney, and Ward v. McMaster on negligence and Keane C.J. analyzed these judgments in detail when clarifying the question of the existence of a duty of care.

105. He began by noting that in the introductory part of the passage in Donoghue v. Stevenson dealing with the “neighbor principle”, Lord Atkin foresaw that while the law of negligence implied a general conception of relationships involving a duty of care justify, inevitably contain legal provisions that limit the class of plaintiffs and the scope of their remedies. He then clarified that "closeness" doesn't just mean "pure physical closeness," it expands

“to relationships that are so close and immediate that the denounced act directly affects a person who the alleged custodial person would know would be directly affected by their negligent act.”

106. This was done by Keane C.J. as a "substantial" clarification given that the producers' obligation towards the end-user with whom they had no contractual relationship has been taken into account.

107. He also noted that Lord Atkin, with the consent of Le Lievre v. Gould [1893] 1Q.B. 491, where it was said that the duty was:

"not to do anything that could harm the other person or damage his property."

108. Thus, a feature of the Malpractice Act was that it offered no relief to those who had suffered a simplified 'economic loss'. At Hedley Byrne & Co. Ltd. v. Heller and Panners Ltd [1964] BC 465 laid down an important caveat to this principle, involving pecuniary loss caused by an admission of guilt.

109. After reference to Anns, Keane C.J. referred to later doubts regarding the two-stage formulation adopted by Lord Wilberforce (in Peabody Donation Fund (Governors of) v. Sir Lindsay Parkinson & Co. Ltd [1985] B.C. 210, Yuen Kun Yeu v. A.G. of Hong Kong). and Sutherland Shire Council v. Heyman) and the latest change in approach in Caparo v. Dickman [1990] 2 v. 605 where Lord Bridge said:

"It turns out that, in addition to the foreseeability of the damage, the necessary ingredients for any fact giving rise to a duty of care is that there must exist between the obligor of the duty and the party with whom a legal relationship exists, as 'proximity' or 'neighbourhood' and that the situation must be such that the court finds it just and reasonable for the law to impose on one of the parties an obligation of some magnitude in favor of the other."

110. Keane C.J. he then turned to Ward v. McMaster. on p. 138 said:

"Although the decision in Ward v. McMaster [1988] I.R. 337 was viewed by some as an unconditional endorsement of what Lord Wilberforce in Anns v. Merton London Borough [1978] BC 728, it is by no means clear that this is so. As noted, Henchy J. believed the case could be decided by reference to "well-established principles" and did not refer to the two-stage test in Anns v. Merton London Borough. Since Finlay C.J. and Griffin J. agreed with the judgments of Henchy J. and McCarthy J., it is not clear that McCarthy J.'s comments on the two-stage test in Anns are necessarily part of the proportion of the decision. Given the far-reaching implications of adopting in that jurisdiction a principle of liability for negligence, which has been so vigorously opposed in other common law jurisdictions, I would not be willing to suggest that McCarthy J.'s decision in Ward v. McMaster".

111. Continued on p. 139:

"In my view there is no reason why courts, when deciding whether a duty of care arises, should be deemed obliged to take that into account in all cases where the injury or property damage was reasonably foreseeable and examination is notoriously difficult and difficult 'Proximity' or 'neighbourhood' can be considered fulfilled unless very strong public policy considerations oppose it. In my view, no wrong is done if they are required to go beyond considering whether it is fair and reasonable in all the circumstances to impose on the defendant a duty of some magnitude in the interests of the plaintiff, as Costello J. asserted at first instance in ward v McMaster [1985] I.R. 29, by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 and by the House of Lords in Caparo plc. v. Dickman [1990] 2 v. 605. As Brennan J. noted, there is a significant risk that any other approach would result in what he calls "a massive extension of a prima facie duty of care, limited only by elusive considerations...".

I would point out in this regard that in England it has been suggested that the difference in approach between Anns v. Merton London Borough [1978] BC 728 and Caparo plc. v. Dickman [1990] 2 v. 605 may not be of great importance, since the considerations which might negate the existence of a duty of care as Ann formulated it in a particular case are consistent with an assessment of whether it is fair, just and reasonable to impose such a duty on the particular circumstances: (see Lord Hoffman's comments in Stovin v. Wise [1996] B.C. 923 at p. 949)”.

112. In discussing the issue of economic damage, Keane C.J. pointed out that such damages are not normally recoverable in tort. Continued on p. 142:

“This does not mean that economic losses in civil liability claims are always irretrievable. As already stated, the pecuniary loss is recoverable in the context of negligence actions. In Siney v. Dublin Corporation [1980] I.R. 400 pecuniary damage was considered recoverable if the damage represented the cost of remedying defects in a building rented by the municipality within the limits of its statutory powers. Such damage was also noted in Ward v. McMaster [1985] I.R. 29; [1988] IR 337 where damage is represented by the cost of remedying defects for which the developer and the municipality are responsible. In both cases the loss was settled according to the approach taken by the House of Lords in Anns v. Merton London Borough [1978] v. Brentwood Borough Council [1991] 1 v. 398 we were not asked in the present case to review our earlier decisions in Siney v. Corporation of Dublin and Ward v. McMaster. I would like to address the question of whether economic damages should apply to negligence claims other than negligent misrepresentation claims and those included in the Siney v. Dublin Corporation and Ward v. McMaster and whether the House of Lords decision on Junior Books Ltd. v. Veitchi Co. GmbH. [1983] 1 of 520 must be followed in that jurisdiction.”

113. The other members of the Court agreed with this sentence.

Leahy contra Rawson [2004] 3 I.R. 1

114. As mentioned above, this is the case raised by the plaintiffs in the present case. It was an extension of a carelessly built country house, where the work was so poorly done that the author had to convert the garage into an apartment until the problem was solved. O'Sullivan J. found that a duty of care arose in a context where the engineers (who disclaimed any duty of supervision) inspected the work while it was being carried out, at the complainant's request, and assured her that everything was in order.

115. To reach this conclusion, O'Sullivan J. specifically followed Glencar's analysis rather than McCarthy J.'s in Ward v. McMaster.

Beatty gegen Revenue Court [2006] 2 I.R. 191

116. In this case, the owners of a rental unit were able to overturn a decision made in a rental review due to a lack of fair trials. They also sought damages for negligence related to lost rental income. The defendant asserted, among other things, that he had no private-law obligations towards the plaintiffs and that the pure pecuniary damage in the event of negligence was not recoverable.

117. The case focused mainly on the legal status of an entity such as the Finanzgericht and the legal nature of its decision-making process. However, the question of negligence was also addressed in the judgments.

118. Geoghegan J. ruled in favor of the Court on grounds of impunity. He concluded by saying:

"I do not wish to express an opinion on the principles of Irish law relating to recovery of damages for economic loss in a negligence claim. I am convinced that despite some relevant Obiter dictations by Keane C.J. at Glencar Explorations p.l.c. against Mayo County Council. It is also unnecessary to express any opinion on the subject in this feature..."

119. Fennelly J. described the basic principles of negligence as follows:

"1. That the parties are so closely related that one party must exercise care towards the other;
2. that it is reasonably foreseeable that a breach of the duty of care will damage the party to whom the duty is owed; It is
3. That it is just and reasonable that the duty should be collected.”
120. Fennelly J. noted that in Sunderland v. Louth County Council [1990] I.L.R.M. 658 the applicant attempted to refer to Siney and Ward v. McMaster to seek damages for the damage allegedly resulting from the granting of planning permission. The Supreme Court ruled unanimously that these cases were “precautions in the social context of being unable to care for themselves” and were not applicable where a planning authority was acting as a “watchdog”.

121. As regards the facts, it considered that the conditions of proximity and foreseeability were met. However, it would not be fair or appropriate to impose a duty of care. First, it held that it was not the type of case to rely on the behavior of the other party, as in Siney and Ward v. McMaster, would justify a deviation from the normal principle of pure financial loss. Second, the availability of such a resource could affect the independence of the court.

122. McCracken J. agreed that the "fair and reasonable" test failed.

Wildgust v Bank of Ireland [2006] 1 I.R. 570

123. The subject of this appeal was the liability of an insurance company for an incorrect answer given by the applicants' banker to a question as to whether a premium had been paid for credit insurance. When notified of the payment, the bank did not see the need to contact the applicants. This happened in a context where it would obviously have been normal for the bank to pay the premium itself rather than letting the policy expire. It later turned out that due to an error, a payment made by the plaintiffs was not processed correctly and the policy expired.

124. The High Court dismissed the plaintiffs' negligent misrepresentation claim for damages, contending that the plaintiffs did not actually invoke the misrepresentation as they were unaware of it. However, it should be noted that when applying the due diligence test, Morris P. found that the methods used by McCarthy J. in Ward v. McMaster did not constitute complete evidence in Glencar's view and the court has yet to question whether it was fair and reasonable to impose some degree of obligation on the defendant in the interests of the plaintiff.

125. In allowing the appeal, the Supreme Court held that the proximate test applicable to the negligent offense covered the facts of the case.

126. In considering whether royal trust is an essential part of tort liability, Geoghegan J. referred to the practical reasons for the distinction, which have evolved since Donoghue v. Stevenson, between negligence in action and negligence in declaration.

“Pragmatically, some kind of control mechanism was needed in relation to liability for negligent misrepresentation, otherwise a lawsuit could fall upon the claim of a large number of people who have been influenced by the misrepresentation and who are reasonably expected to be influenced by the misrepresentation. In contrast, a negligent act tends to harm only a small group of people.”

127. It found that recent English case law (notably Caparo Industries plc v Dickman) has introduced a third element to liability for negligence. In addition to reasonable foreseeability and proximity, the question of reasonableness in imposing the duty of care now arose. Geoghegan J. noted without further discussion that this principle was developed by Keane C.J. at Glencar.

128. After examining Hedley Byrne v. Heller & Partners and subsequent authorities, in particular White v. Jones [1995] 2 BC 207, Geoghegan J. concluded that the defendant should have known that at least the bank would trust the information. If your information was not correct, the policy could be forfeited at the expense of both the bank and the plaintiffs, who had an economic interest in the policy in the form of a portion of the principal. There was therefore a special relationship between the plaintiffs and the defendant.

"In short, the first plaintiff was a 'neighbor' within the meaning of the Negligence Act and was particularly close. The point here is not that the second defendant is responsible for a large number of people who may not be known.

129. Kearns J. noted that under the principles of Donoghue v. Stevenson, liability for negligence was limited to personal injury or damage to the author's property. Hedley Byrne extended liability to pecuniary loss caused by negligent misrepresentation on a "very specific basis" i.e.

“[that] the law would imply a duty of care when a party seeking information from a party with special skills is confident that it will exercise due diligence and that party knew or should have known that its skills and their judgment was reliable.”

130. Kearns J. then approached later major English authorities including Caparo Industries p.l.c. against Dickman. In this case the House of Lords held that liability for pecuniary loss arising from negligent speech was limited to cases where the speech or advice was given to a known recipient for a specific purpose which was known to the author and to which the recipient was aware had trusted and acted to his detriment. Kearns J. noted Lord Bridges' emphasis on the distinction between the duty to avoid harm to persons or property and the duty to protect others from purely economic loss.

131. The question whether the customs parameters in that case-law were determined by Ward v. McMaster, considering the subsequent decision at Glencar. After passages on pages 138 and 139 of the Keane C.J. mentioned above, Kearns J. said:

“56 This highly authoritative statutory statement of general due diligence in cases of negligence is in itself a strong reason to believe that the evidence in Caparo Industries plc. v. Dickman [1990] 2 v. Chr. 605, if applicable, should be even more forceful in addressing cases of gross misrepresentation and than Lord Bridge's warning on p. 621 that an integral part of the 'closeness' between the plaintiff and the defendant in such circumstances must be at least evidence that "The Defendant knew that his testimony would be communicated to the Plaintiff, either as an individual or as a member of an identifiable class, particularly with respect to a specific transaction or transactions of a particular kind, and on which the Plaintiff would be likely to rely if he decides whether or not to enter into that transaction or transaction of that nature."

57 This seems to me, for all the reasons identified in the cases already discussed and bearing in mind the crucial distinction between words and utterances on the one hand and deeds and on the other, a particularly appropriate limitation on any duty of care arising out of negligent misconduct and the conduct of the other. It is obvious that this distinction should not be avoided. However, the question is whether Caparo Industries plc. v. Dickman [1990] 2 v. Chr. 605, itself a negligent misrepresentation case, applies to negligent misrepresentation cases in that jurisdiction, as opposed to common negligence cases, where Glencar has determined the application of these principles. scan plc v. Mayo County Council (No. 2) [2002] 1 I.R. 84."

132. Kearns J. argued that, on the merits of the facts, both the plaintiffs and their bank were “neighbors” of the defendants in the legal sense, to whom there was a legal obligation. He advocates interpreting, "or adapting where appropriate," Hedley Byrne's principles to include more than just the person at whom the ruthless distortion is aimed.

“The “proximity” test in relation to a negligent statement should go further and include individuals in a limited and identifiable group who the statement-maker can reasonably expect to be reliable in the context of a particular investigation. by that person or persons to act or not to act in any particular way in connection with this transaction”.

discussions and conclusions
133. At the risk of oversimplifying complex issues, the situation is as follows:

(i) In Ward v. McMaster, Costello followed J. Siney and applied the two-level Anns test to establish due diligence. He also turned to Junior Books about liability for financial losses resulting from breaches of duty. In the Supreme Court, McCarthy J. (with the concurrence of Finlay C.J. and Walsh and Griffin JJ.) upheld Anns' test, adding that it took "stronger" public policy considerations to deny an injured party its right to redress at the expense of the person or entity that caused the damage.
Due to the procedural structure of the appeal, the court did not deal with the question of liability for financial losses.
(ii) In Glencar, the Supreme Court expressed its disapproval of the Anns test, preferring an approach whereby the court, when considering the existence of a duty of care, should ask whether it was "fair, just and reasonable" to impose such a duty , rather than asking whether there are compelling reasons against imposing it.
The court considered it possible that Henchy J.'s judgment in Ward v. McMaster, based on "well-established" principles, was the court's binding decision in this case, rather than McCarthy J.

The Court also reiterated that the general principle was that damages could only be awarded for personal injury or damage to property (property not being the subject of dispute). The Court recognized that negligent conduct constitutes an exception to this principle. He expressly reserves his position as to whether damages for economic loss are recoverable "except for negligent misrepresentations and those incorporated into the matters set forth in Siney v. Dublin Corporation and Ward v. McMaster".

(iii) In Leahy v. Rawson O'Sullivan J. applied Glencar's analysis to determine that an engineer who assured the plaintiff that all was well with the building had a duty of care.
134. When Keane C.J. of the facts of the Glencar case was merely an obituary, as Geoghegan J. put it, or a more "authoritative" legal opinion, as Kearns J. described it, it certainly falls to this court to give it full respect as a considered expression of the unanimous opinion of the federal court. However, I think it is important in the context of this case to point out that I do not think there is any justification for claiming that the result in Siney or Ward v. McMaster was wrong.

135. Given the facts of the present case, I can readily state that McCarthy J. or Keane C.J.

136. First of all, there was an undeniable closeness between the appellants and the second defendant. In this respect, I consider the lack of a contractual relationship between the parties to be irrelevant. Although the certificates were handed over to the builder by the second defendant, from the builder's point of view their only conceivable purpose was to present them to a potential buyer. The second defendant must have known this, had tacit knowledge and even a presumption that he would rely on the certificates; that is the purpose for which they were issued. This applies in particular to the representation that the foundation has been built correctly. Given the evidence in this case of how the problem was identified (drilling large test holes around the house), this is not an issue that a potential buyer can easily assess. Likewise, for a person in the position of the second-named defendant, it was quite foreseeable that losses for the purchaser would have to be expected if the foundation was actually insufficient.

137. The alternative questions, "Is there any reason, given the circumstances, not to impose a duty of care?" and "Is it fair, just and reasonable to impose a duty of care in the given circumstances?" both lead me to the same factual point Direction. The second named defendant has not argued that there are political considerations that would cause the court to hesitate in concluding that a duty exists. The class of people who have the right is easy to define: it is the buyer who has been presented with the certificate, since he is the one who will trust it. There is no need in this case to go further and consider the possibility of open liability to subsequent buyers years later.

138. I also believe it is fair, just and reasonable to impose a duty of care on buyers on persons such as engineers and architects who issue certificates of this kind to builders. Most people who buy a modern home and most lenders who want to take out mortgages need and rely on these certificates. Self-certification by a building owner does not seem to be a realistic alternative. It is simply untenable to suggest that the person claiming to be professionally qualified to assess and certify the quality of the home and the workmanship of its construction should not be required to exercise caution in issuing such a certificate . .

139. The question then arises as to the possibility of compensation. The defendant says that nothing can be recovered because the claim was made out of negligence and not negligent error.

140. I note that in the Glencar case, one of the issues raised in the judgment arose because the defendant had not expressly contested its duty of care. The theme is by Keane C.J. at pages 131-132, noting that the defense has denied negligence and breach of duty. He stated that it was clearly implied that the defendant was alleging that he had no duty of care or, if so, that he had not breached it. He continued:

"That consideration aside, it was a question of law whether there was a duty of care in the particular circumstances of this case, and from the orthodox view of the role of pleadings the lack of a duty of care need not be expressly asserted. Of course, it is not the case that the plaintiffs before in this court or in the Superior Court were in any way surprised in view of the detailed written submissions filed in both courts...".

141. I also note that early in the Wildgust trial, the Superior Court and, on appeal, the Supreme Court ordered plaintiffs to amend the Complaint to include a specific negligent misrepresentation defense: see Wildgust v. Bank of Ireland [2001] 1 I.L.R.M. 24. This question arose when it became clear during the course of the High Court hearing that the negligent testimony was in fact the plaintiff's basis. The plaintiff alleged that from the complaint document, which details the communications in question, the individuals, the defense (who denies making the allegation) and the attorney's initial argument (which refers to "negligence in misconduct.") The defendant contended that the plaintiff was required to argue that the defendant made a statement to the plaintiff that the defendant intended the plaintiff to invoke it and that the plaintiff invoked it and acted to his detriment claimed to have been biased in his defense.

142. At the court's sentencing, McGuinness J. ruled that the plaintiff failed to present the normal elements of a negligent misrepresentation claim and that the defendant was correct in arguing that parts of the allegations on which it relied instead in connection with the allegation of infidelity of the defendant.

143. In the present case, the plaintiffs allege negligence and breach of duty in their defense of the second defendant. The statements in (i), (j) and (l) indicate that you have approved the work including defects; who issued the final certificate when they knew or should have known about the deficiencies; and who certified the work "when it was not correct," specifically that the foundations were satisfactory and the ground conditions appropriate. The detailed note asked for justification of the existence of a duty of care, to which it was replied that the plaintiffs had relied on the certificates.

144. The second defendant admitted negligence, notwithstanding its denial of liability to the plaintiffs. This admission appears to have been made verbally and indeed caused initial confusion in the sense that the plaintiffs' representatives assumed an admission of liability. According to the written submissions of the defendants

"The second named defendant admitted negligence on its part, notwithstanding the defense filed in the Complaint, but otherwise considered the plaintiffs' claim and right to damages against the second named defendant. economic losses of the authors.

145. Furthermore, the precise conditions of admission are not known to the Court and it would have been better in hindsight to have clarified them at the hearing. It is somewhat difficult to understand how the admission could have been made "without prejudice to the defence", since the defense denied negligence. I think the admission should not invalidate the argument that this defendant had no duty of care to the plaintiffs and in any event was not responsible for any financial loss suffered by them.

146. In the absence of an express limitation or exclusion, I consider that the admission must be read in the context of the allegations of negligence set out in the case-file, including those relating to the certificates. This is believed to be due to the acknowledgment that Plaintiffs did not seek expert evidence of the level of care expected of a professional issuing certificates of this nature, but Defendant has not contended that Plaintiffs failed to prove that the representation was made negligently in relation to the adequacy of the foundations. Furthermore, it was not alleged that the Defendant would have been caught off guard by the Plaintiffs' allegations or that it would have approached the case differently had the allegations expressly used the term "negligent misrepresentation".

147. In view of the above, it seems to me that the combination of Complaint, Detailed Notice and Responses is sufficient in the circumstances to establish the negligent misrepresentation case. On the basis of the facts, there can be little doubt as to whether the liability criteria for negligent misrepresentation, as discussed in the authorities and more recently in Wildgust, were met. Compensation for financial losses is therefore recoverable.

148. Leaving aside the negligent distortion, I believe the case falls within the parameters of Ward v. McMaster and as such are not subject to Glencar's express caveats in relation to economic loss.

149. The next question is then the amount of recoverable damage.

150. The cost of the repair work carried out in phase 1 poses little difficulty. This work had to be done to keep the house from moving any further. From my point of view, it was an immediately foreseeable consequence of improper foundations that extensive and expensive work had to be carried out. I understand that an engineer hired by the defendant's insurance company visited the crime scene, surveyed it and did not offer an opinion on what was being done. I therefore grant the €129,000 requested in this section.

151. Phase 2 refers to the renovation of the house and the restoration of the garden after the completion of Phase 1. Based on the photographs taken during Phase 1, I believe that Phase 2 was a necessary follow-up. The costs have been duly justified and I see no reason not to award the sum of €38,525 claimed by the plaintiffs.

152. The main issue related to damages concerns phase 3.

153. The principal Irish authority on torts in this area is the Supreme Court decision in Munnelly v. Calcon Limited [1978] I.R. 387. In the present case, part of a wall of one of the plaintiff's houses had collapsed as a result of the negligence of the defendants who were carrying out work on the adjacent property. The damage was irreparable and the house had to be demolished. The Supreme Court awarded a general amount of damages to cover the cost of building a new home on the site.

154. When the defendant's appeal was upheld, the Supreme Court ruled that the appropriate measure of damages was the depreciation of the property and not the cost of restitution.

155. Henchy J. quoted the following passage from McGregor on Damages (13th ed., 1972):

"The difficulty in deciding between depreciation and the cost of reparation arises from the fact that the offender may want his property to be in the same condition as it was before the tort was committed, but the amount required to do so may be substantially greater than as the amount by which the value of the property has been reduced. The test that seems appropriate is the plausibility of the plaintiff's desire to restore the property; this will be judged in part on the benefit of restitution to him versus the additional cost to the defendant of having to pay damages for restitution, rather than the damage calculated by the decline in land value.

156. Henchy J. also accepted that two principles were fundamental to tort liability. First, the damages must be such that, money permitting, the plaintiff is placed in the same position as if the crime had not been committed. Second, the damage must be reasonable between the plaintiff and the defendant. In the present case, the costs of reinstatement would have given the plaintiff unjustifiable additional profit and unjustifiably disadvantaged the defendants. On the other hand, assessing the damage based on the reduction in value would enable the plaintiff to obtain a property that was no less appropriate to his needs.

157. Along the same lines, Kenny J. said:

"The principle of restitutio in integrum does not relieve the subsidiary rule that in all cases where property is destroyed or destroyed, the owner is entitled to recover the cost of restoration as damages ... back to the same position in which he was was before the accident, but these are special cases and it is the responsibility of the plaintiff to prove that yours is one of them."

158. Parke J. agreed, saying that the costs of redress would place a wholly unreasonable burden on the defendants.

159.Leahy v. The Rawson mentioned above is an example of those exceptional cases in which O'Sullivan awarded J. the cost of demolition and rebuilding, allowing for Munnelly. However, this was a case where a) the house was absolutely dangerous and uninhabited, and b) the cost of repairs would actually have been higher.

160. In my opinion, the claim for damages for very extensive slope correction work is excessive and inappropriate in the present case. This would mean that the total amount spent to repair the home would be roughly the same as it was in 2008 and far exceed any estimate of its current value. It must be remembered that the author's own witness described the necessity of these works as purely aesthetic. I don't think it's justified in a context where the slope is almost imperceptible, has no structural impact and at best seems to have caused the inconvenience of having to use stops. In these circumstances, reducing the value is the appropriate measure in this case. I accept the evidence that, despite its now undisputed structural soundness, the house probably has some reputation and that a savvy buyer would probably be looking for the crossover's demise and asking for a discount. However, I don't see that it can reach 50% of the value. I therefore assign the value of €75,000 under this concept to reflect a depreciation of about 25%.

161. In these circumstances, there is no need to consider the cost of alternative accommodation.

162. Chimneys, however, belong to a different category in that they pose real safety concerns. Therefore, an amount must be given to cover the cost of fixing them as standalone works. Since the editor was rather vague about this, I will award him €11,000.

163. Finally, there is the issue of hardship and inconvenience. There is no doubt that the plaintiffs endured very intrusive, noisy and messy work during the Phase 1 work. The situation was particularly difficult considering that there were three small children in the home. Under these circumstances, I think 25,000 euros is a reasonable premium.

Walsh vs Jones Lang Lasalle Ltd (HC)

[2007] Judgment IEHC 28 by Judge Quirke, delivered January 24, 2007
In this case, the plaintiff, David Walsh, is seeking damages from the defendant to compensate him for the damages he allegedly suffered as a result of the defendant's negligence and negligent misrepresentation.
The plaintiff alleges that on 28 September 2000 he bought property (No. 77 Upper Gardiner Street, Dublin) for the amount of IR £2,342,000.00 for investment purposes. He intended to rent the property in units to commercial tenants.
The defendant is a well-known auction house that was commissioned by the owner to sell the property.
Plaintiff alleges that Defendant specifically informed her that the property had a total area of ​​23,057 square feet. The precise measurement of the area of ​​the property was therefore described in the defendant's sales prospectus, which the defendant made available to the plaintiff. The plaintiff claims that he based his purchase decision on the defendant's estimated built-up area.
In fact, the total area of ​​the lot was 21,248 square feet (1,817 square feet less than what the defendant presented to the plaintiff). The plaintiff complains that the defendant acted negligently in misjudging the usable area of ​​the property and that the defendant made a negligent error in the declaration by publishing this misjudgment of the usable area in its sales prospectus.
The defendant failed to exercise the necessary and proper care that a buyer can expect from a reputable auctioneer and appraiser and breached the defendant's duty of care towards the plaintiff. Plaintiff alleges that he suffered losses, including loss of income, as a result of Defendant's negligence and negligent misrepresentation.

1. In July 2000, the defendant was commissioned (by the landlord) to sell a two-story house
Corner building on Upper Gardiner Street in Dublin, privately contracted at the best possible price.
The defendant prepared and published a one-page sales brochure advertising the property, among other things, as "a two-storey mix of retail, warehouse and office space... in Dublin city centre". ”
On the front page of the brochure, the property was described as "2,142 m2- (23,057 sq ft)" under his management. - Land area 0.13 hectares (0.31 acres)”
On the last page of the brochure, under the heading "Accommodation," (a) the ground floor was described as 12,594 square feet, (b) the first floor was described as 10,463 square feet, and (c) the total area of ​​the lot was described as having a total area of ​​23,057 square feet. Corresponding dimensions are given in square meters.
The correct measurement for the first floor area was 8573.5 square feet. The correct measurement of the total lot area was 21,248 square feet.
The brochure contained a color photograph of the premises, a site plan, descriptions of the property's possible uses, its location and similar details. The following paragraph is published in fine print at the bottom of the cover:
"While every care has been taken in preparing these details and are believed to be accurate, they are not guaranteed and interested buyers/renters should ensure that the information provided is accurate."
2. In July 2000, the applicant was interested in acquiring commercial and investment properties in north-central Dublin City. At the time he owned property on Cumberland Street North, Dublin.
He noted that the property at 77 Gardiner Street was for sale. He toured the facility on July 13, 2000 and returned to the facility on July 14, 2000.
He spoke to Mr. "Woodie" O'Neill of the defendant company and has expressed an interest in purchasing the property. Mister. O'Neill has provided you with the above sales brochures.
3. By letter dated July 21, 2000, Mr. O'Neill informed Mr. Walsh, inter alia, that:

"Dear David,
Calle Gardiner Superior 77.
I refer to the ongoing discussions in connection with the sale of the previous property. Several interested parties have expressed interest and we are on track to finalize the on-site tender. Any interested party is informed that final and "best" bids for the relevant property will be received in writing by this office by 12 noon on Friday, July 28, 2000."
The letter included a copy of a draft contract and terms of sale relating to the property, as well as requests for the seller's attorneys.
4. Plaintiff hired a solicitor to review title and hired Mr. Val O'Brien (a real estate appraiser) to do what is known as an "informal condition assessment" of the property. Mister. O'Brien testified as evidence that he regularly conducts "condition inspections" of properties, but has never been asked by potential buyers to measure the floor area of ​​properties before bidding.
5. Through an undated handwritten letter from the Claimant to Mr. O'Neill dated 28 July, the Claimant disclosed the following to the Defendant, among other things.
"Referring to your letter of 21 July I would offer £2,342,000 for this property. … If you need clarification please contact me on 4961753.”
In evidence, the plaintiff said his offer was based on a "back side" bill that he could earn the following rental income as a property owner:
(1). Commercial space in front of ground floor – I.R. BRL 20.00 per square meter.
(two). Storage room on the ground floor – I.R. BRL 8.00 per square meter.
(3). First Floor - I.R. R$ 20.00 per square meter.
Based on his calculation the total potential rental income from the property would probably be around IR £320,000.00 per annum and he has estimated the total gross value of the property at around IR £2,500,000.00 (after deducting significant costs). Your offer was based on the areas specified in the prospectus.
About the paragraph "withdrawal" at the end of the prospectus cover he said: "I would have known about the resignation. I don't remember reading it carefully. I have found that... all precautions have been taken. I knew that Jones Lang was an extremely honest company.
He said he has bought properties before and since and that he "...never surveyed a building before making a purchase...I rely on the reputation, credibility and integrity of the person who advertises...".
6. On August 9, 2000, plaintiff entered into and signed a purchase and sale agreement for the property. He then hired Mr Tony Rooney of Messrs Palmer McCormack, Chartered Surveyors, to help lease the property (he also contemplated occupying part of the property for his own business).
Following the author's instructions, which Mr. Palmer McCormack submitted a report on the property to her bankers (Messrs. ACC Bank). The report was included in a letter from Palmer McCormack to ACC Bank dated August 15, 2000. The report states, among other things:
“The property … is approximately 23,000 gross square meters on a nearly 1/3 acre lot. (We did not measure this building and took the footprints from the Jones Lang Lasalle sales brochure.)
The first level office space is approximately 10,463 gross square feet and has a rental value of IR £15.00 per square foot net in our opinion. Approximately 4,000 square feet on the first floor needs a remodel and upgrade and we understand that Mr. Walsh intends to bring this space up to today's office standard."
The plaintiff's bank did not investigate the accuracy of the measurements and did not conduct its own study in relation to the property.
7. Mr Rooney was able to let the first floor and a small part of the ground floor to the Commissioners of Public Works for a period of four years and nine months from 1 April 2001 at a rent of IR £20 per square foot. The lease was negotiated over an extended period and included significant internal modifications to the building to accommodate the needs of the Health Service Executive who eventually occupied the relevant parts of the building once negotiations were complete.
8. By letter dated March 20, 2001, Mr. Val O'Brien, surveyor for the concession building, informed the Claimant that the total area of ​​the property is 21,248 square feet (8,573.5 square feet on the first floor and 12,674.6 square feet on the first floor). .
The plaintiff stated in evidence that he was surprised by this information as he believed that the total area of ​​the building was almost 20% larger based on the accurate measurements in the defendant's prospectus. He said business would be "unsustainable" if every potential buyer couldn't rely on accurate measurements from supposedly reputable auctioneers and estate agents.
He said commercial property buyers believe that "disclaimers" of the kind the defendant relied on can be found in most auctioneers' brochures and are intended to protect the auctioneers from liability for "slight" misstatements.
He stated that his opinion on this is reinforced by the fact that the defendant admits that between ten and twelve potential investors who are very interested in buying have seen the property but have not measured it. Had they done so, the major structural misjudgment would have been discovered before the property was sold.
9. Mr Barry Smyth, who is a Chartered Surveyor in the Gentlemen. De Vere White
As evidence, Smyth claimed that it would be highly unusual for investors to value properties before offering to buy them. He said he has never encountered circumstances where this would have happened. He said most auctioneers have some sort of disclaimer in their prospectuses. He said these disclaimers included " effort to protect the agent from relatively minor errors...I hope your measurements are accurate...I hope buyers have confidence in my measurements..."
Mister. Peter Rowan of Lambert Smith Hampton, Auctioneers, presented evidence on behalf of the defendant that a prudent investor or prospective buyer should carry out a detailed inspection and survey all areas before purchasing a property. He said it is neither normal nor prudent and not considered acceptable practice to rely solely on measurements provided in sales brochures prepared by the seller's representative.
9. Mr. Nigel Healy, director of the defendant company, described the "disclaimer" as a way of advising the buyer to conduct inspections and measurements as a form of "due diligence". He said the measurements in the brochures are "a general guide" for potential buyers.

The plaintiff did not contest the effectiveness of the contract he had concluded for the purchase of the property. He has not asserted any claim for damages or termination of the contract due to untruth or material breach of the terms of the contract.
Her lawsuit is limited to her allegation that the defendant violated one of the defendant's duties of care by incorrectly calculating the square footage of the property and by publishing the incorrect calculation in its prospectus. Consequently, it is alleged, the defendant was guilty of negligence and negligent misrepresentation resulting in harm (including continued loss of income) to the plaintiff.
The questions to be resolved by the court are:
1. Given the facts of this case, did the defendant have a duty of care to the plaintiff to ensure that the estimate of the square footage of the property that the defendant published in its prospectus was correct?
2. If so, has the defendant breached this duty?
3. if so, (a) the claimant has been guilty of negligence or breach of duty which caused or contributed to the damage allegedly suffered by him, and
if so, (b) the extent to which the claimant caused or contributed to its own alleged loss and damage, and
4. what damages the plaintiff may demand from the defendant.
Mister. Sanfey SC argued on behalf of the defendant that the defendant had no duty of care to the plaintiff to ensure that the information published in the defendant's sales brochure was correct. It held that such an obligation existed only where there was a 'special relationship' between the parties, as advocated by Lord Reid in Hedley Byrne & Company Limited v. Heller & Partners Limited [1964] AC 465.
Referring to the "Disclaimer" in Defendant's sales brochure, Mr. Sanfey argued that it could not be said that a special relationship existed between Plaintiff and Defendant where Plaintiff was specifically recommended the accuracy of the information provided by Defendant to confirm.
In support of his assertion, Mr. Several English and Irish authorities were also represented at Sanfey SC, including Smith v. Eric S. Bush [1990] 1st v. 831, Bank of Ireland v. Smith [1966] I.R. 646, McAnarney v. US. Hanrahan [1994] 1 I.L.R.M. 210 and McCullagh v. Lane Fox & Partners Limited [1996] P.M.L.R. 205 BC Chr
He argued that in such cases courts must consider a "third element" alongside "reasonable foreseeability" and "proximity". It found that in Caparo Industries Plc v. Dickman [1990] 2 AC 605 the House of Lords ruled that liability for financial loss arising from negligent speech is limited to cases where the speech or advice was given to a known recipient for a specific purpose. Purpose of which the author was aware and on which the addressee trusted and acted to his detriment. In this case the Court (Lord Bridge) found, inter alia, at pp. 617/618) that:
It turns out that, in addition to the foreseeability of the damage, the necessary ingredients for any due diligence case are that there must be a legal relationship between the debtor of the duty and the debtor “proximity” or “neighborhood” and that the situation must be such that the court finds it just, equitable and reasonable that the law imposes on one party an obligation of some magnitude in favor of the other. ”
In the most recent case, Wildgust and Another v. Bank of Ireland and Another [2006] 2 ILRM 28, the High Court (Geoghegan.J) noted the “… sharp distinction between actual negligence on the one hand and actual negligence on the other.” Noting that this “third element ' (described as 'reasonableness in imposing a duty of care') by the Supreme Court (Keane C.J.) in Glencar Exploration Plc v. Mayo County Council (No. 2) [2002] 1 IR 84, and without acknowledging that “the negligent speech statute is a separate statute from the negligent act statute,” the court reviewed the negligent speech offense history, citing “ other special relationships" identified by Lord Reid in Hedley Byrne.
Geoghegan, J. continued, “For Hedley Byrne, the only alleged relationship was that between the researcher and the person who provided the information. Hence the emphasis on trust on the part of the researcher. However, it is a small extension of that, and I believe subsequent case-law warrants it, for a person other than the plaintiff to suffer harm as a result of an incorrect answer and for the existence of such a person and the reasonableness and foreseeability of such harm to be apparent to the respondent's awareness must have existed, there was also a special relationship with him, which established a duty of care.”
In the same case, the Supreme Court (Kearns J.) found that “…I am in favor of an interpretation or, where appropriate, adjustment of Hedley Byrne's principles that includes more than just the person to whom the false statement is addressed. In my opinion, the "proximity" test for negligent misrepresentation should also include persons from a limited and identifiable class upon whom the claimant can reasonably rely in the context of a particular investigation causing him or her to to act or not to act in any particular manner in connection with that transaction.”
In the present case, the information contained in the brochure prepared and published by the defendant was intended for a very specific and identifiable group of people.
The defendant is a large company that has existed for some time. It has rightly earned an excellent reputation for competence, honesty and integrity in its dealings. It presents itself as a company with particular skills and experience in the commercial property markets in Ireland and abroad. It builds on its excellent reputation to encourage potential clients to avail its services.
The brochure is expressly designed to bring an inner-city commercial property to the attention of potential buyers, to encourage them to bid, or 'bid', collectively for the property. It was an integral part of a bidding process aimed at maximizing the price potential buyers would pay for the property. It was also designed to maximize the fee that the defendant would earn from the sale of the property.
Prospective buyers are expected to rely on the information contained in the prospectus when deciding whether or not to make an offer to buy.
On the face of it, therefore, the relationship between plaintiff and defendant was close enough to constitute a "special relationship" of the kind found by the Supreme Court (Geoghegan and Kearns JJ.) in Wildgust.
On behalf of the defendant, it was alleged that the "disclaimer" attached at the end of the prospectus of the defendant excluded the existence of the "special relationship" alleged on behalf of the plaintiff. It has been argued that the existence of the "disclaimer" in this case introduced the "third element" mentioned above and made it unfair, unfair and unreasonable for this court to impose an obligation of the kind alleged on the defendant. I don't accept that.
The information contained in the pamphlet was released by the defendant with the express purpose of influencing a limited number of identifiable individuals. The publication of the "disclaimer" is irrelevant. The complainant was a person to whom the brochure was specifically addressed and who was influenced by the information published in it. I am satisfied with evidence that you have relied on the measurements contained in the prospectus to calculate your exact offer or "bid" for the purchase of the property.
In my view, the issue to be resolved in relation to the "waiver" is whether its presence in the prospectus and its precise terms are sufficient to exempt Defendant from liability to Plaintiff in relation to Defendant's negligence in measuring the area. of the floor of the property and negligent misrepresentation by the defendant in publishing the wrong dimensions of the floor area. As for the tests, I don't think they're enough.
I accept the evidence provided by the plaintiff and Mr Barry Smyth that it is not and has not been the practice for prospective buyers of commercial property in the Dublin area to measure the area of ​​properties before making an offer to buy. I also accept Mr. Rooney's testimony on the matter.
I also accept the evidence from the author and Mr. Barry Smyth that the "disclaimer" and similar "disclaimers" published by reputable auctioneers have historically been, and have been, considered relatively minor errors of measurement by prospective buyers.
While I also accept Mr. Peter Rowan and Mr. Healy that prudent buyers should measure floor areas and conduct detailed inspections whenever possible prior to the purchase of real estate, I am pleased to see evidence that where detailed and accurate measurements of commercial real estate are found in real estate brochures are provided by reputable and experienced auctioneers, it is the practice for potential buyers to rely on the accuracy of these measurements subject to possible minor error of judgement.
The accuracy associated with floor area measurements is of significant importance. The brochure stated that the first floor area was exactly 10,463 square feet. The correct measurement for the first floor area was 8573.5 square feet.
The "waiver" contained a sentence with the following terms.
"While every care has been taken in preparing these details and are believed to be accurate, they are not guaranteed and interested buyers/renters should ensure that the information provided is accurate."
Plaintiff consented as evidence that he was "aware of the waiver...(and)...stated that all arrangements had been made." He knew that Jones Lang was an extremely honest company.
It's hard to accept that "every care has been taken in preparing these details" because the floor space (perhaps the most important detail to be found in the brochure) has been exaggerated to the point where potential buyers have been seriously misled . The area of ​​the first floor (which had a rental value of around R$ 20.00 per square meter) was overestimated at over 1,800 square meters.
There is no doubt that the defendant published grossly inaccurate measurements of the floor area of ​​the property in its prospectus. He knew or should have known that the applicant and other potential buyers to whom the prospectus was addressed would trust and be influenced by such apparently accurate measurements.
However, the defendant argued that they were not responsible for any mistake on their part, since the "waiver" provided that the information "... is not guaranteed and interested buyers/tenants must convince themselves of the correctness of the information provided. I do not accept that this provision is sufficient to relieve the defendant of liability in the circumstances of this case.
The duty of care asserted by the plaintiff is to ensure that the calculation of the built-up area of ​​the property published by the defendant in its prospectus is correct. The present case is concerned with the existence of this obligation. If the duty existed, then it was a duty to reasonably protect the plaintiff's interests under the circumstances. An obligation on the part of the defendant to protect the interests of the plaintiff is not indicated. It is not alleged that the defendant had no right to put his own interests or those of another party ahead of the interests of the plaintiff. What is alleged is that the Defendant had a duty in the circumstances of this case to ensure that information provided for the alleged benefit of a limited group of people (including the Plaintiff) was reasonably accurate in the circumstances.
If the defendant wished to reserve the right (a) to publish in its sales prospectus precise measurements which in reality were grossly inaccurate, and (b) to release itself from liability to the group of persons to whom the prospectus and its contents were addressed, so Defendant was required to advise Plaintiff and other potential buyers that the published measurements, which appeared to be accurate, were unlikely to be entirely reliable and should not be relied upon under any circumstances.
Defendant failed to meet this obligation by including a cryptic sentence in the small print of its prospectus, which purported to have taken particular care in preparing all the details of the prospectus but advised prospective buyers to “verify the accuracy of the information provided”.
Given the practice followed by buyers and sellers of commercial real estate in Dublin at the material time, the Defendants' "waiver" was a fairly inadequate means of informing potential buyers that the apparently accurate measurements of floor areas advertised in such a conspicuous manner , in the sales brochure were not entirely reliable.
It follows that the "Disclaimer of Liability" posted at the bottom of the first page of Defendant's booklet did not relieve Defendant of liability in respect of negligence and negligent misconduct of the kind asserted on Plaintiff's behalf.
I am satisfied with the facts of this case that the damages claimed on the plaintiff's behalf were a reasonably foreseeable loss to the defendant. The defendant is a reputable and experienced firm of real estate agents and auctioneers. Its members are familiar with the need for accuracy in surveying commercial building surfaces.
They were and are aware that the total rental income that can be obtained from a commercial property will usually be the primary factor in calculating its value. The built-up area of ​​the property is an important factor in determining the total achievable income of the property.
In order to take these estimates of potential buyers into account, the defendant had the property inspected and measured and the results published in its prospectus. However, the defendant was negligent in measuring floor areas and failed to take reasonable steps to ensure that the information it published in its brochure was accurate.
The defendant knew or should have known that the plaintiff (and other potential buyers of a property) would take special care in assessing the value of the property (and consequently the value they were willing to offer for the property). Reference to the achievable rental income of the property. Rental income, in turn, depended on an accurate measurement of the space available for rent. The defendant wanted to provide this precise measurement in its brochure.
It was clearly foreseeable for the defendant that an overestimation of the built-up area of ​​the property would lead to an overestimated estimate of the income that could be achieved from the rental of the property and a corresponding inflation of the appraised value of the property. The defendant also expected that the buyer would incur losses when purchasing the property due to an overestimation of its value and earnings potential.
It follows that the losses and damages suffered by the plaintiff in this case were reasonably foreseeable by the defendant. Having determined that (a) the relationship between plaintiff and defendant was close enough to constitute a "special relationship" of the species identified in Wildgust and (b) that the loss allegedly suffered by plaintiff was reasonable under foreseeable in the circumstances; and (c) that the imposition of such an obligation on the Defendant would not be unfair, unfair or unreasonable in the circumstances. It follows that I am satisfied with the facts of this case, that the defendant owed the plaintiff a duty of care to ensure that the estimate of the constructed area of ​​the property which the defendant published in its prospectus was correct.
Since incontrovertible evidence has conclusively determined that the ground floor area of ​​the property was overestimated at over 1,800 square feet, it follows that the defendant breached its plaintiff duty.

On behalf of the defendant, it was alleged that any loss or damage suffered by the plaintiff was "caused solely or alternatively by his own negligence and/or negligence which contributed to his failure to carry out an inspection of the premises before he entered (the)... the contract and the completion of the purchase of the premises...if it had been prudent to do so..."
As I indicated above, I accept the evidence provided by the plaintiff and Mr Barry Smyth that it is not, and has not been, common practice for potential buyers of commercial property in Dublin to measure the size of the property before making an offer to buy . I also accept Mr. Rooney's testimony on the matter.
Consequently, I do not consider it negligent that the plaintiff did not inspect the premises prior to the conclusion of the contract before acquiring the property.
In these proceedings, no indications were found that it is, was or was practicable for prospective buyers to measure property areas after the conclusion of the purchase contract and before the conclusion of the contract.
Mister. Peter Rowan and Mr Healy stated that they believe prudent prospective buyers should measure floor areas and carry out detailed inspections before offering to buy commercial property in Dublin. However, I do not understand experts who suggest that, as in this case, if a prospective buyer has relied on the exact measurements given in the sales agent's sales prospectus when making the purchase offer, it would be desirable to have those measurements between the date of signing the sales contract and the date of to have the purchase confirmed by inspection and measurement.
It may be that the miscalculation would have been discovered had such an inspection and investigation been carried out on behalf of the plaintiff. However, no evidence was presented in that proceeding to support the claim that such an inspection or investigation should have been carried out to confirm the accurate measurements contained in the brochure.
Under these circumstances, I am not convinced that contributory negligence on the part of the plaintiff could be proven in these proceedings.

Mister. Barry Smyth, on behalf of the author, and Mr. Rowan, on behalf of the defendant, submitted evidence relating to the damage suffered by the plaintiff as a result of the overvaluation of the ground floor area of ​​the property.
I am satisfied with the evidence and the weighing of the probabilities that if the prospectus of the defendant had included accurate measurements of the floor area of ​​the property, the plaintiff and the other potential buyers would have submitted lower bids or "bids" than those submitted. It is likely that the plaintiff was still successful in purchasing the property based on a "back calculation" of the kind that led to his offer or "bid".
Mister. Smyth, on behalf of the plaintiff, estimates the damages claimed by the plaintiff at €590,000.00. This calculation is based on the fact that in the past a 'blue-chip' (Public Works Office) tenant was acquired who was willing to lease all the space available to the applicant for a contractual rent of €25.39 per square meter rent. Foot.
Mister. Smyth calculated the plaintiff's loss as the principal amount of the reduction in plaintiff's income from the property (based on a projected return of 7.5% and allowing for acquisition cost, including 6% stamp duty).
Mister. Rowan, testifying on behalf of the defendant, estimated the potential damage to the plaintiff at €368,244.00. His calculation was based on depreciation of the facilities at the flat rate applicable to the property, or value of €153.57 per square meter. He calculated the depreciation of the property at €368,224.00 due to the fact that the built-up area was overestimated at 1889 square meters. The hype was actually 1,817 square feet or more.
I am convinced that Mr. Rowan best represents the approximate loss suffered by the plaintiff as a result of the defendant's negligence and negligent allegation. He paid significantly more for the property than it was worth at the time of the ad. The depreciation of acquired property is probably the most appropriate measure of its loss. You are therefore entitled to compensation of €350,000 to compensate for this loss.

Patrick Stafford vs Denis Mahony

, Desmond Smith und Robin Palmer, (Keane Mahony Smith)
1976 Nr. 1668P

supreme court

March 21, 1980

[1980] I.L.R.M. 53

Doyle J.

delivered its judgment on March 21, 1980, saying: The plaintiff, Mr Patrick Stafford, is a gentleman who lived in England until early 1973, when he moved to Dublin. The defendants are partners in a firm of auctioneers and appraisers operating in Dublin under the name and style of Keane Mahony Smith. The lawsuit relates to the plaintiff's allegation that he had commissioned the defendants as auctioneers to advise him on the acquisition of real estate and that he had suffered damage through negligent deception. He claims he employed the defendants' services in March 1973 to find a property suitable for living in but would be a good investment as it could be immediately resold at a profit. He claims the defendants took him to a location known as Collegiate School, Celbridge, Co. Kildare owned by the Incorporated Society for Promoting Protestant Schools in Ireland, hereinafter referred to as the Collegiate School. He was persuaded to purchase this property because the defendants claimed that the property and facilities could easily be resold at a better price and that it was otherwise a first-class, useful investment property. he informed the accused. He claims the site was actually a bad investment; that the defendants' estimates were exaggerated and that the property, unknown to the plaintiff, was the subject of some local authority urbanization plans which provided for the passage of a public road through the property, and that the defendants denied this fact, which the author did not known, or to point out the effects of such a development plan on the future value and usability of the property. He had to resell the property at a loss.

Defendants, in their defense, deny that they were held by plaintiff *55, as their auctioneers then alleged, d Georgian house and locate the property known as the Collegiate School in his name. They state that they gave no professional advice or representation to the plaintiff, and their defense alleges that the plaintiff, Mr. Patrick Stafford, stepped in alone at the last moment of signing the deed of sale on December 21, 1973. It was later revealed, as the evidence in the case unfolded, that this defense argument referred to an alleged private agreement between brothers James and Patrick Stafford for their mutual convenience, which Mr. Patrick Stafford represents his brother in signing the contract. His office would then and thereafter be governed by a separate private written contract between the brothers. As a corollary and consistent with this defense plea, the defendants have denied any negligent or otherwise negligent testimony by the plaintiff, Mr. Patrick Stafford, and any negligence or breach of duty on their part which caused the damage alleged by the plaintiff.

The plaintiff, Mr. After reporting his return to Dublin from London in early 1973, Patrick Stafford testified that shortly thereafter he met Mr Denis Mahony, one of the defendants, and hired him as his adviser to help find property. about twenty miles. from Dublin He visited some properties in June 1973, notably the premises known as Hamwood House near Maynooth, which he visited with the accused Denis Mahony. This property, Stafford said, seemed attractive to him and he was interested in pursuing the matter, but the sale did not go through as Mahony subsequently sold the property to another of Keane Mahony Smith's clients. Later, on the advice of Mr Mahony, he visited another property called Newtown House, near Leixlip, which was a house on grounds and seemed in some respects to suit his needs but on account of certain developments being proposed in the immediate area , Mr Stafford thought that if development took place and the purchase of this property did not take place, the future value of the premises would not increase.

Finally, in November 1973, he claims that Mr Mahony suggested looking at the premises known as the Collegiate School at Celbridge. He visited him several times and discussed a possible purchase with Mr. Mahony in his office. Eventually they had quite a lengthy discussion during which Mr Mahony pointed out that he, Mr Mahony, could sell the property for £100,000 at any time. He also informed Mr Stafford that an outlay of £10,000 to £15,000 would be sufficient to make the place suitable for residence. It should be emphasized that the site was used as a girls' boarding school for several years and was designed accordingly with dormitories, classrooms and the usual school equipment for such an occupancy. installations. Concluding this interview in Mr. Mahony, the author said he had given the matter some thought and returned about a week later when he was meeting with Mr. Palmer, another *56 member of the firm. Palmer assured him the property was good value for money. He claimed that the two acre field adjacent to the plot with planning permission was only worth the purchase price and informed Mr Stafford that planning permission could easily be obtained. After further consideration, Mr. Stafford says he decided to buy it in early December 1973 and Mr. Mahony to buy it on his behalf. He hired as his attorney Mr. Thomas Bacon, director of the prestigious firm of James G. O'Connor & Co. to act on their behalf.

A purchase agreement was signed on December 21, 1973. The form used was a paper copy prepared by the Incorporated Law Society and it is important at this stage to review the terms of the memorandum attached to the contract. The body of the memorandum consists of a printed document with spaces to properly include details about the parts, purchase price, and other matters. The seller's name, Incorporated Society for the Promotion of Protestant Schools in Ireland, is on the memo and the buyer's name is James Stafford. Crossed out and the name "Patrick" was taken from Mr. Thomas Bacon, solicitor to Mr. Patrick Stafford. Also in Mr. Speck's handwriting is the date December 21, 1973; the address of Mr. Patrick Stafford of Ardoyne House, Pembroke Park, Dublin 4 and an amendment to the purchase price, said to include auction fees, to £73,500 and a deposit of £10,000 leaving a balance of £63,500, also made by Mr. Bacon. Mister. Bacon also entered the new closing date, i.e. January 31, 1974, replacing the original closing date of November 30, 1973, which had been entered as the previous dates. It should be noted that the claimant stated in paragraph 5 of the application that he paid the purchase price of £70,000 and £3,500 for fees, £1,750 of which was received from a company called Osborne King & Megran, the company of the seller. The auctioneers and defendants received £1,750 as counsel for the plaintiffs. This claim was challenged at paragraph 4 of the defence, which found that the said sum of £1,750 which the defendants would have received was not received as an adviser to the plaintiff, but as 50% of the commission in connection with the sale of the said premises to the plaintiff.

In speaking directly, the writer declined to explain under what circumstances his brother James' name was originally entered as the purchaser of the property on the memorandum accompanying the contract, except that at one point his brother James, he was in contact with Keane Mahony Smith and this was made clear by Mr. Mahony during the lengthy interview in which he claimed to have made the negligent misrepresentations on which he relied. Mister. Patrick Stafford said that about two months after the completion of the deed of sale, sometime in February 1974, he employed the services of Mr. Frank Barry, Architect, to survey the premises and estimate the cost of conversion to private residence. Mister. Barry reported within days that £10,000 or £15,000 would be a complete waste of money if spent on the spot. It would take many times that amount to bring it into a reasonable livable condition. The author *57 stated that after receiving this report he had decided to resell it and informed Mr. Mahony. He claims Mr Mahony reassured him there would be no problem getting £100,000 for the estate. Nothing seems to have been done to organize a resale for at least a year. In the meantime, the plaintiff has completed the purchase from his own funds, he said. The sale finally closed on May 14, 1974. The author appears to have discussed the matter with other real estate agents and decided that the property would be difficult to sell. So he decided to build on the property and applied for a building permit in 1975. This was denied in April and the refusal appealed unsuccessfully. It states that in late 1975 Mr Desmond Smith, one of the accused, agreed to negotiate the sale of the premises and they were eventually sold on 17 November 1975 for £50,000.

In the course of the hearing, it was demonstrated that at the time of the facts, and indeed in 1974, there was a sharp general depreciation in the prices of real estate of this type.

The complainant said he was surprised to receive a complaint from Mr Smith in November 1975 worth £1,750 in auction fees for resale. He had Mr Smith that if he wanted 3.5% fees, he, Stafford, would seek damages in respect of the original transaction. The subpoena in the present case was issued on April 30, 1976. The auctioneers instituted proceedings in the Circuit Court to recover their resale fees.

During the custody hearing, the perpetrator claimed to have carried out the sale with his own funds. On cross-examination he claimed that in December 1973, when the lease was signed, he had enough money in the City of Dublin Bank to buy the property and that he had in fact paid the deposit with a check for £10,000 made out to the Signature of Mr. Bacon. When he titled Mr. Bacon: 'Re: Collegiate School. We are enclosing a check for £5,000 here as agreed,” he said, not believing his brother paid any money in connection with the purchase; that he didn't know then. He denied having acted as the first buyer at the time of the purchase agreement, or as a replacement for his brother, who would have to buy through a public company, and the delay in obtaining the necessary State Commission approval for a sale to a public company. He later agreed that the £10,000 deposit was paid by two checks for £5,000, one from his brother (and I quote) "who owed me a few cases of wine". He denied the existence of any agreement with his brother James. whereby he, Patrick, had the option of buying the property for six months or together and claimed not to have known James was interested in the property. In this statement of fact and in other important matters, the terms of Mr. Bacon's attendance records and correspondence relating to the sale of the premises by Mr. Bacon on behalf of Mr. James Stafford as purchaser up to the date of the bill of sale are contradicted. As Mr. Patrick Stafford's testimony conflicts with Mr. Bacon and Mr. Bacon's, particularly a December 21, 1973 attendance list, * 58 #19 in the post book and a January 16, 1974 letter from Mr. Speck for Mr. Patrick Stafford, dismissed the author's evidence. Mister. James Stafford made no statement or written agreement between himself and his brother, nor was any note or memorandum drawn up by him.

Mister. Denis Mahony, the first named defendant, testified in evidence that he knew in 1973 that James Stafford was interested in buying Celbridge Collegiate School but that he had not personally raised the matter and had not seen the property, which was in the Responsibility of Mr. Palmer. He dealt with Mr. James Stafford. He first toured the facility with Mr. Palmer and Mr. Patrick Stafford when a resale was being considered. Patrick Stafford never suggested to him that he was (I quote) "tricking him into making a bad offer". he, Mr. Mahony had never done business with Patrick Stafford prior to signing the contract in December 1973 and had made no statement. him as claimed. On cross-examination, he agreed that Patrick had visited Keane Mahony Smith's office in 1973; I had seen him there ten or twelve times and talked about it. Patrick Stafford asked about all types of real estate. he, Mr. Mahony believed that Patrick Stafford bought the Collegiate School from his brother James in 1974 because he thought it would represent a large capital appreciation. I quote Mr. Mahony: “He told me. He never gave me specific instructions to buy a specific property. He knew he wanted to buy a mansion. I was one of the people in the firm with whom he dealt." I am pleased that Mr Mahony has given a truthful and credible account of his own transaction and that of members of his firm with Mr James Stafford and Mr Patrick Stafford respectively, as far as he was aware of these transactions.

Another and perhaps minor part of plaintiff's evidence relates to the alleged dealings he had with Mr. Palmer, also a member of Keane Mahony Smith and a defendant in this lawsuit. Although Mr. Palmer, unlike Mr. Mahony, is not specifically mentioned in the Complaint as telling Mr. Stafford to buy or inducing him to buy, but I believe I have related the allegations against him to Mr. Patrick Stafford. In fact, the issue of the plaintiff obtaining an urbanization permit for him to develop part of the property does not appear in the petition originally filed, but in an amendment requested and obtained during the course of the proceedings. be supplemented with a paragraph alleging that the defendants represented and indicated that planning permission could be obtained for development of most of the land, making such land worth only the asking price for the entire property. In another concurrently admitted amendment to paragraph 7 of the originally filed Complaint, Mr. Palmer was entered first. The amendment, as granted, allowed the paragraph to claim that such advice was given orally by the Defendant Denis Mahony and one of the Defendants' employees, Robin Palmer, and so Paragraph 7 continued as before: "and the Plaintiff was caused to Said to give advice And he did. and paid the charges to the defendants by and in faith in said notice." In paragraph 7, as originally worded, the date read "before January 11, 1974," but this was first changed to January 23, 1973 and at an even later date *59 to read "before December 21, 1973". Patrick Stafford was still not sure when exactly Mr Mahony or Mr Palmer had told him they had submitted building permits.

Mister. Palmer is first met by Mr. Patrick Stafford during the long meeting he has in Mr. Mahony. It was a meeting that lasted around 45 minutes at which a discussion is said to have taken place between Mr Mahony and Mr Mahony made most of the declarations he now relies on, particularly regarding the value of the property and the prospect of one immediate resale at a much better price. Mister. Stafford says he saw Mr. Palmer at that meeting, or perhaps when he returned shortly thereafter. He claims Mr. Palmer informed him that the property represented good value for money, and in particular that the six-acre field that is part of the property, once planning permission was obtained, was worth the price alone. that such a building permit could easily be obtained. Mister. Stafford said of this guarantee (I quote): "It gave credibility to the purchase. I made no decision but said I was very interested. He went on to have another conversation with Mr Mahony shortly thereafter, but this time there was no mention of planning permission. He had decided in early December that the property was what he was looking for and hired Mr Mahony to buy it on his behalf.

During his testimony, Mr. Mahony, the first-named defendant, mentioned that Mr. Palmer had been a member of the firm that worked on behalf of Mr. James Stafford. As mentioned above, Mr. Mahony first came into direct contact with the establishment when the resale problem arose and was told by Mr Patrick Stafford that he had bought or was planning to buy the Collegiate School from his brother James. Mister. Mahony then attended Collegiate School for the first time and was tutored by Mr. Palmer and by Patrick Stafford. The clerk who made the resale of the premises to Mr Patrick Stafford was Mr Smith. When the complainant was questioned by Mr. Baron, Mr. Mahony gave essentially the same account of the circumstances of his first active interest in the property of the Collegiate School and the fact that Mr. Palmer looked after it when Mr. Patrick Stafford decided to buy his brother James. Mister. Mahony expressed his belief that until Mr Patrick Stafford informed him that he was buying the premises from his brother James, no one in the office was aware of this circumstance, which he claimed had become known to him in 1974. Mahony assumed it was in response to Mr. Barron who knew or had learned that Patrick Stafford's name was on the bill of sale because he was the purchaser at the time the bill of sale was signed, December 21, 1973. I thought you got that information from Mr. *60 Palmer. Mahony specifically waived the protracted November 1973 meeting that Patrick Stafford had sworn to attend. He claimed that no meeting or gathering was held to discuss all the ins and outs of a purchase by Patrick Stafford. He further said that if such a meeting between the plaintiff and Mr. Palmer, Mr. Mahony might not have known about it. He never met Mr Patrick Stafford in 1973.

Mister. Robin Palmer, partner of Keane Mahony Smith and third named defendant, stated during his testimony that he had seen the details provided by Osborne King & Megran regarding the Collegiate School's property and thought it was for his client, Mr James Stafford. I was looking for a very representative home with trees and a mature environment. Until she saw these details, she had no other property of Mr. James Stafford. When she heard it was on the market it was for rent but Osborne King & Megran had informed her they were considering selling it. He took Mr. James Stafford to view the property probably on September 18, 1973. This was the first time he, Mr. Robin Palmer, saw the property. Describing its appearance, he said that he thought it was Mr James Stafford, but that it would need part demolition, particularly the bedroom at the back of the building, to convert it into a gentleman's residence. He estimated it would cost perhaps £60,000 to convert it into habitable premises. He reported this to Mr James Stafford and said (and I quote): "I have made it very clear that this is not a for-profit property, a 'change'. It would suit your needs if you were to spend a lot of money on it." . Palmer went on to claim that the Incorporated Society of Protestant Schools, the sellers, were asking £80,000 for the property. On September 19, 1973 Mr. Palmer took Mr James Stafford's architect, Sr Frank Barry, to inspect the property and three days later Mr James Stafford made an offer of £70,000 which was accepted.

All of these transactions, Mr. Palmer said, took place in late September and early October 1973. He asked the gentlemen a few questions. Hayes & Sons to ask the seller if the contract had been signed, but no one knew until late December 1973 or early January 1974 that Mr Patrick Stafford's contract. Before he knew this fact, he did not know that Mr. Patrick Stafford could be the buyer. He had not been with Mr. Patrick Stafford on the property until the time the deed of sale was signed. Between that date and the closing date, he had a discussion, i.e. H. between the months of January and May 1974, with Mr. Patrick Stafford. He claimed I hadn't told him he could get planning permission and sell part of the land for the asking price. He knew that between May and July 1974 Mr. Patrick Stafford hired Keane Mahony Smith to resell the property. Mister. Palmer said (and I quote), "I don't think I was instructed. Eventually my partner, Mr Desmond Smith, sold for £50,000.

Under questioning Mr Palmer said Mr Barron what James Stafford had told him when Patrick agreed to buy the property from him. He, James Stafford, said it was not appropriate; that his brother would take his place in *61. Palmer received this information from James in late December 1973 or early January 1974.

The activities of the Keane Mahony Smith firm were carried out in various departments, Mr. Palmer was with Mr. Mahony, in the agricultural department, which was the department of the company dealing with properties such as Celbridge Collegiate School. He said that any question about a gentleman's residence from Mr Patrick Stafford would have to go to him or to Mr Mahony. It hadn't reached him. Your discussions with Mr Patrick Stafford were essential when he wanted to resell the property. He was at lengthy discussions as Mr. Patrick Stafford described prior to the signing of the contract in 1973.

As I am Mr. Patrick Stafford to the extent that it is inconsistent with Mr. Speck and Mr. Mahony and with the documentation taken as being by Mr. Bacon while he was being Mr. Mahony, it would be inconsistent if I now referred to Mr. Patrick Stafford Mr. Palmer, which I just summarized. In view of the careful and lengthy legal reasoning that Mr. Barron, on behalf of his client, the author, I feel it necessary to review the proposals he has made regarding the law governing the relationship between the author and the members of the. the defendant company in question.

Based on the assumption that Mr. Patrick Stafford had discussions with Mr. Mahony and Mr. Palmer during which he received certain information amounting to harmless but misrepresentations which led him to buy the premises, Mr. Barron directs a well-researched trial investigation into the doctrine of innocent misrepresentation and its consequences. Mister. Barron relied primarily on the Court of Appeal in Esso Petroleum Co. Ltd v. Mardon [1976] QB 801. In this case the Court of Appeal intended to base its judgment on the decision of the House of Lords. in the case of Hedley Byrne & Co Ltd v Heller and Partners Ltd, the recognized authority which for the first time has fully resolved the issue of the duty of care required of a person providing information or advice. In general, I think that the Court of Appeals in Esso v. Mardon significantly broadened the application of the principle established in Hedley Byrne. The principle on which this decision was based was set out by Lord Denning MR at p. 820 as follows:

It seems to me that Hedley Byrne... correctly understood covers this particular statement: When a man who has or claims to have special knowledge or ability makes a statement to another, whether it be advice, information , or opinion, with a view to inducing you to enter into a contract with them, is required to use reasonable care to ensure that the representation is accurate and the advice, information or opinion is reliable. If he negligently gives false advice or misleading information or if he expresses a wrong opinion and thereby misleads the other party into concluding a contract with him, he is liable for damages.

Omrod LJ at p. 287, after reviewing the principles on which Hedley Byrne based the decision, stated: *62

The parties had a relationship sufficient to create an obligation on the plaintiffs. There is no magic in the expression "special relationship"; means nothing other than a relationship in which one of the parties would be legally held to have a duty of care to the other for a variety of possible reasons. In this case the author had all the expertise, experience and authority of a large and efficient organization concerned with developing gas stations to sell their oil through dealers who would invest a significant amount of capital in the business . .. The evidence shows that they clearly took responsibility for the reliability of their own [estimated annual consumption].

Shaw LJ expressed similar views and it is difficult to avoid the views of these learned judges being influenced to some extent by provisions of the English Misrepresentation Act 1967, which had been in force for some years at the time of the trial. . However, in 1963 at the time of Mr. Mardon, the plaintiff.

Hedley Byrne is reported in [1964] AC 465. It is difficult to summarize briefly the implications of this extremely important decision, but I think it may be summed up by reading Lord Devlin's words on page 530. He would have said:

I therefore content myself with the statement that there is a duty of care in contractual relationships. Such a relationship can be general or specific. Examples of a general relationship are lawyer-client and banker-client…. More may need to be set up. When a general relation of this kind exists, it is not necessary to do more than prove its existence, and duty follows. If, as in the present case, a certain ad hoc relationship is invoked, it must be examined on the basis of the specific facts of the case whether there is an express or tacit promise of liability.

He goes on in the next sentence to present a doctrinal aspect that seems important in considering the present case, namely; I consider this theorem as an application of the general notion of proximity.

In Lord Morris' speech there is an analysis of Derry v Peek (1889) 14 app. Cheese. 337, also referring to Lord Shaw's speech in Nocton v Lord Ashburton [1914] AC 932, at p. 972:

…Once the relationships of the parties have been determined as one in which one person is required to provide another with information or advice on which that other person may rely as a basis for a transaction, liability for error shall be tantamount to misrepresentation in any statement made is attributed to the advisor or whistleblower, even if the information and advice was given in good faith and not fraudulently.

After discussing other speeches in Derry against Peek, Lord Morris commented [1964] AC 465 at p. 502:

The analysis in the present case and in similar cases therefore becomes an analysis of whether there was a relationship between the parties that gave rise to an obligation and, if so, whether that obligation involved a duty of care.

Lord Morris fuhr fort:

I think it should not be taken for granted that if someone who has a special ability agrees, regardless of the contract, to use that skill to help someone else with that ability, then a duty of care arises. .

He goes on to make a remark that may be useful to the plaintiff in the present case:

In addition, if a person is in an area in which a person is located in such a way that others can reasonably rely on his or her judgment or ability or ability to make a careful investigation, you accept responsibility for the provision of information or Giving advice or allowing her information or advice to another person who you know or should know trusts her creates a duty of care.

The power of this last remark, as I understand it, is that when Mr James Stafford received advice which he might reasonably have expected, pass it on to his brother, Mr Patrick Stafford, or call your attention, and if Mr. Patrick Stafford put his trust in him, so the duty of care would have extended to him. However, the remark clearly provides that there must be one person making the statement and another person to whom the statement is being made or likely to be communicated.

In my opinion, the application and scope of the doctrine of negligent but innocent testimony giving rise to an action for damages has been correctly set out by Davitt P. in Securities Trust Ltd v. Hugh Moore and Alexander Ltd [1964] IR 417. 421 expressed his opinion that contrary to the restrictive interpretation given by Derry v Peek previously, the law now provides that a claim for damages can be based on a not guilty, i.e. H. not fraudulent but negligent testimony, said the learned judge Consider Hedley Byrne's recent decision at the time. He explained:

The suggestion was accepted and applied that circumstances can create a relationship between two parties in which when one solicits and receives information from the other, the other is obliged to use reasonable care to ensure that the information provided is correct. in the case of Hedley Byrne & Co Ltd v Heller and Partners Ltd, recently decided by the House of Lords.

After reviewing the circumstances of the case before him at the time, in which Mr. Kevin Anderson, President and CEO of the plaintiff company, requested information from the defendant company, the Learned Judge determined that Mr. Anderson, who had filed the complaint, discontinued was a shareholder, but the plaintiff company was not registered as the owner of shares in the defendant company. Davitt J. asserted that the complainant had a right to information and a right to receive it personally as a member; he had no right to receive him as a representative of the plaintiff firm, so he said:

In my view, there was no relationship between the parties in this case [ie, plaintiff's company and defendant's company] beyond what would exist between defendant's company and anyone else (other than Mr. Anderson) who dared could read the copy to be delivered; or, moreover, between this society and any member of the community in general, natural or legal persons, who were aware of the last sentence of article 155 of the erroneous new edition of the statutes.

This was the document that led to the misrepresentation. The wise judge further said:

It can hardly be said that the defendant company had a worldwide obligation to take care to avoid mistakes and typographical errors when reprinting its articles. In my view, the attorney is correct in stating that in this case the defendant company had no obligation to the plaintiff company to ensure that the copy of the articles to Mr. Anderson was an accurate copy.


Following the principles thus established by Davitt P, I have concluded that in order for liability to arise for negligent or non-fraudulent disclosures giving rise to a claim, there must first be a person transmitting the information or disclosure entrusted to The ; second, there must be a person to whom that information is to be disclosed or who can reasonably be expected to disclose the information; third, that the person must act to their detriment on the basis of such information or representations in order to prove that they are entitled to compensation. It follows, I believe, that if Mr James Stafford was the plaintiff in the present case and had proved to the satisfaction of the court that the defendants, or any member of the firm for which he was employed, had given him false information. his prejudice, based on his skill and experience, he would have brought up such a case. I do not believe that responsibility extends to his brother Patrick, although during his various visits to the offices of the defendant company he became aware of the nature of the transaction his brother James was conducting up to the date of his execution. The purchase agreement. Definitely Mr. Patrick Stafford made no such case. His case is that he personally sought express representation and advice on certain facts from Mr. Mahony and to a lesser extent Mr. Palmer, whereupon he acted to his detriment and suffered harm. It is clear from the burden of proof I have assumed that I cannot accept this statement as I do not accept the testimonies of Mr Mahony and Mr Palmer on these matters and in particular Mr Bacon and the documentation he obtained during the consultation of Mr James Stafford in the preparations for sale. Therefore, the action must fail.

Hazylake Fashions Ltd v. Gouverneur und Bank of Ireland Company

1987 No. 1941P

supreme court

13. April 1989

[1989] ILRM 698
(Murphy J.)

13. April 1989

Murphy J.

Judgment of 13 April 1989 stating: Hazylake Fashions Ltd (which I shall refer to as the Company) commenced trading at Easkey, County Sligo in January 1985. The company's business consisted in the manufacture and sale of children's clothing mainly for the export market. The managing director of the company is and always was Mr. Jean Claude Fabien. Mister. Fabien is a man of considerable business experience and is and was particularly familiar with exchange and banking procedures.

From the beginning of the Easkey trade, the company had had a bank account with the defendants (which I shall refer to as a bank) at its Sligo branch on Grattan Street. However, foreign bills of exchange were discounted on behalf of the Company by Bank Paribas in Luxembourg. In October 1985 Mr. Fabien decided to explore the possibility of transferring the Paribas company's international banking operations to the bank so that Bank of Ireland would take care of all of the company's banking needs. As a result of this decision, Mr. Fabien met with Mr Eoin Crowley, Manager of Bank of Ireland's International Banking Division in Galway. Mister. Fabien and Mr. Crowley agree on two points discussed at their meeting. Firstly, both parties agree that no indication was given of the discounting of unaccepted bills of exchange and secondly, that the Bank would require the Company to take out export credit insurance with the Insurance Corporation of Ireland under a scheme operated by that insurance company. Surprisingly, there was little evidence of what role the bank was being asked to commit to. No doubt the intention was for the bank to cash and debit the accounts on behalf of their client, but no evidence was ever presented that they made any commitment on behalf of that client. The scheme adopted by the parties was most evident in the documentation prepared in connection with the export finance insurance program. The said documents show that the bank had agreed to advance the company up to 90% of the face value of certain bills of exchange drawn by the company and that the insurance company, subject to various conditions and covenants, guaranteed the payment of the total amount * 700 of advances up to at a specified agreed limit of the total amount outstanding at any time. Apparently the bank contented itself with making the advances partly covered by the bills of exchange, but mainly on the basis of the security given by the Insurance Corporation of Ireland. From this I conclude that the parties have agreed that the bank will advance 90% of the total value of all bills that are accepted into the program and presented within the period covered by it, subject of course to the established rotation limit. Credit.

When asked whether the bank had ever promised a discount or advance on unaccepted bills of exchange, Mr Crowley insisted that the possibility was never discussed lest it be accepted. He expressed his position vividly, saying that it was inherently unnatural for bankers to talk about unaccepted bills. In fact, Mr. Crowley's opinions are not supported by export credit insurance documentation, which defines that an eligible instrument includes both an accepted and an unaccepted bill of exchange. This interpretation of the definition is reinforced by Clause (1) of the Guarantee itself which, in paragraph (d) thereof, imposes the condition that the Bank be unaware of any default on assumption at the date of prepayment.

Even more impressively, Mr Crowley's attention was drawn to a brochure published by the Bank of Ireland entitled Export Finance Scheme for Non-Capital Goods which contained the following paragraph:

The program aims to provide exporters with fast post-shipment financing at attractive interest rates. Foreign currency interest rates can be more favorable than Irish pound rates and borrowers under the program have no currency risk. Even though I.C.I. expressly exclude, the advance payment can be made on unacceptable bills of exchange or promissory notes. This eliminates the need to send approval letters/notes before funding is provided.

Despite these conflicting views, I am satisfied that all the documentation (in particular a letter dated 27 May 1986 from the Insurance Corporation of Ireland to the company, further referred to) makes it clear that the plan referred to in the present case bills of exchange accepted was restricted and which was otherwise to be so restricted in October 1985 by both the Bank and the Company.

Steps were taken after the October meeting to establish export insurance coverage. The paperwork was not completed until March 1986. The agreement offered the bank a guarantee for advances made between March 1, 1986 and March 31, 1987, up to an advance limit of no more than $20,000 at a time. The first five letters sent to the bank for discounting and collection were received by the bank on April 16, 1986. It is important to note that four of these letters related to goods that had been sent almost two months before the letters were sent to the bank. Bank. This appears to have been an event that Mr. Crowley called for a new meeting with Mr. Fabien, which took place on April 17, 1986. Crowley says one issue he raised at that meeting was the delay in paying bills. He was careful to send the invoices at the same time as the goods. However, it was Mr. Fabien, who testified that Mr. Crowley with the *701 signature authentication of the acceptor. Mister. Crowley wanted acceptance to be carried out at the acceptor's bank and notification of acceptance telexed directly to the International Department in Galway. That this was the case is fully confirmed by the documentation prepared by the bank for these transactions. Mister. Crowley explained to Mr. Fabien and his office manager, Ms. Jackie Cunningham, what documents were needed and how to fill them out. In fact, he personally completed a series of documents to illustrate what was needed. This included a so-called debt collection letter, which allegedly came from the bank and was addressed to the bankers referred to. The letter related to the invoice in question and contained specific instructions for invoicing and payment. In the collection instructions column, the company needed to include a specific requirement for the recipient to notify the Bank of Ireland of Eyre Square, Galway, of acceptance by telex/swift. Again the company has additional payment instructions for Mr Crowley to remit the proceeds back to Eyre Square, Galway, using the same procedure. This reminder letter was carbonized in duplicate. The original was titled Original Mail, the first copy was titled Bank File Copy, and the second copy was titled Exporter Copy.

Obviously, the collection letter should be sent by the bank, which will send a copy to the customer itself and keep a copy for their own files. Apparently, Mrs. Commer explained, sometime in late 1984 or early 1985, the international department changed its system and delegated the task of transmitting instructions to the drawee and its banker to the customer. In this way, the customer sent letters that appeared to be from the bank, when in fact they were filled out and sent by the company. In my opinion, the evidence for the April 17, 1986 meeting and the content of the documentation after that meeting confirmed beyond any reasonable doubt that it was the Bank's intention to discount or advance bills of exchange that had been properly accepted and not against bills of exchange not yet presented for acceptance . It seems impossible to believe that Mr. Crowley would have taken such steps to ensure the authenticity or reasonableness of a particular assumption when in fact he had been willing to consider an advance against a bill which had not even been submitted for approval. .

The fact that the whole scheme applied only to accepted bills of exchange was reinforced by the (already mentioned) letter from the insurance company to the company dated 27 May 1986, for which the renewable fixed credit limit was increased from 20,000 to 40,000. That letter indicated that the guarantee to the bank related to prepayments on bills of exchange drawn and duly accepted by a buyer under a covered contract.

The letters delivered to the bank in the rest of April 1986 and in May of the same year had already been processed under the previous agreement by the customer, who requested acceptance of the letter in a manner satisfactory to him *702 and not to the satisfaction of the Bank. The new system did not go into operation until the end of June 1986. On the 26th of this month three unaccepted notes were sent to the bank's international department in Galway. It seems that the goods were shipped and the invoice was issued at the same time. The three tickets were discounted on June 30th. Since the evidence indicated that Easkey's communications took an average of seven days to reach the French banks involved in the transactions and that these banks had to contact their customers and request the execution of the acceptance, this should have been obvious to everyone. . which raised the question that the bills of exchange in question not only had not been accepted but could not then be presented for acceptance. In fact, only one of the three bills appears to have been accepted, and that was on September 17, 1986, nearly three months after the advance. Between July and November 1986 a further twelve unaccepted bills of exchange were presented and promptly, if not promptly, honored by the bank in circumstances which clearly indicated that the bill of exchange could not have reached the drawee had it not been received before the output would have accepted. Advance payment

Given the agreement between the parties as I found it, why was this progress premature? Was it the result of an agreement or a mistake?

In support of the claim that there was an agreement, express or implied, that the bank would in fact discount unaccepted bills, reference was made to part of Ms. Cunningham, in which she said that Mr. Your assistants. Woman. Commer on how some of the roles need to be filled. The specific document was a form required for the purposes of the Exchange Control Acts and the evidence presented by Miss Cunningham which appeared to be significant was that she had been instructed to fill in the disbursement date on advances which the Bank disburses to the would company. a date three to four days after the invoice date for the goods shipped to the foreign customer. It was provisionally indicated that this was the intention of the bank to make an advance payment within three to four days of receipt of the documents, regardless of the fact that acceptance could not have taken place within this period. In fact, it turns out that from Ms. Commer to Miss. Cunningham was February 27, 1986, the date on which the company dispatched the goods to a foreign buyer, but it is also clear that this invoice relates to goods for which a bill of exchange has already been drawn and accepted by the drawee. In the circumstances, I would place little value on the evidence, but I would not question the integrity of any of the witnesses.

I am convinced that the agreement between the parties related only to the bills of exchange accepted and that this agreement was never expressly or implicitly modified and that consequently the early advances made by the bank and accepted by the company were due to a clerical error. were almost certainly caused by the continuation of the practice established in relation to the system originally adopted between the parties for dealing with bills of exchange accepted prior to being presented to the bank for collection. No doubt the situation was aggravated by changes in banking procedures made by Ms. Commer and occurring at about the same time or more or less.

There was a conflict between the evidence presented by different witnesses about how, when and who discovered the error. I think Mr. Crowley is correct in saying that his assistant manager informed him of the error on November 27, 1986. In fact, an unaccepted bill of exchange was received that day, which was honored by the international department of the bank. However, I believe that Mr. Crowley is wrong when he says he has Mr. Fabien for the week beginning November 27, 1986. In fact, this evidence is necessarily false since November 27, 1986 was a Thursday, not a Monday. I think it is unlikely that Mr. Crowley had the opportunity to speak to Mr. Fabien before mailing the unprotracted letter to the bank on November 24, 1986 and mailing it to the bank on December 3, 1986. In fact, it could have been the receipt for that letter. Exchange rate on Friday December 5th, the Mr. Crowley to Mr. Fabien early the following week, December 8th or 9th. Although I am of the opinion that the communication took place a little later than Mr Crowley believes it was much earlier than Mr Pat Burke, the manager of the Galway office, was implying. Also, I accept that the communications initiative is the responsibility of Mr. Crowley and not Mr. Fabien. Again, there is disagreement between the parties regarding Mr. Fabien reporting that an error occurred in the past which resulted in the discounting of unaccepted tickets and that in the future only accepted tickets would be discounted with consequent late payment. make progress on foot from them. Crowley recalled that Fabien's attitude was not a problem, while Fabien himself says he panicked when he heard the news and Crowley warned it was impossible for the company to do business without cash. I'm sure Mr Fabien was concerned, perhaps not immediately, but once he realized the importance of doing the right thing. Indeed, Mr. Crowley said that Mr. Fabien adopted his usual aggressive attitude.

I think Mr. Fabien was more disappointed or worried than hurt. I think at some point he must have realized that the bank was misapplying its own system and that the correction would inevitably put more strain on the company's liquidity, which was at its limit at the time. In fact, the man with the true allegation was Mr Pat Burke, manager of Bank of Ireland's Sligo branch, who was unaware of the exact terms of the agreement between the company and the international division. He allowed the company to withdraw money from his checking account at his branch with the expectation that the credit department in Dublin would transfer the money to the branch shortly after his customer presented the bills of exchange.

After the error was discovered, the bank refused to redeem the notes until informed of the acceptance. However, even then, a conscious decision was made to discount three unaccepted bills of exchange. This decision was taken by the Dublin Credit Division with the aim and effect of liquidating the overdraft which the Company had accumulated on its Sligo branch account.

Mister. Fabien explained that the company was forced to cease production on March 7, 1987 due to cash flow constraints. In fact, there is some ambiguity as to the precise meaning of this statement. His cross-examination revealed that production had ceased but that the company continued to exploit its trading connections, acting as an agent for the sale of goods to its former customers in France and elsewhere. In this sense, it can be said that the company continued its activity but hired another manufacturer to compensate it for the products.

Under these circumstances, the plaintiff company sought damages from the defendant bank on the following grounds:

1. That there was a contract between the company and the bank in which the bank undertook to discount unaccepted bills of exchange until the contract was terminated with a notice period of at least six months.

2. That the defendants were negligent in failing to inform the plaintiff in April 1986 of the delay that would result from the bank's requirement to accept bills of exchange in the form required by the bank before they were honored by the bank.

3. That, taking into account the special relationship between the Company and the Bank, the Bank would have been liable to the Company for any declaration made negligently which would have resulted in financial loss for the Company. In this context, cashing checks not accepted within three to four days of receipt by the bank was considered an implied declaration.

The first of these arguments fails because I have already established that, in fact, at no time did the bank have any contract to discount unaccepted bills of exchange, let alone to continue this practice for any period of time.

The second argument is based on a font change by adding an extra paragraph in the details as follows:

(g) Failed to inform or advise Plaintiff that if Defendant discounted only accepted bills of exchange, there would be a delay of up to fourteen weeks between the submission of the bill of exchange and the discounting.

Even assuming that the bank was required to notify the company of the implications of the lawsuit, I believe the evidence does not support that the lawsuit itself involved the alleged delay, or that a delay of fourteen weeks from the filing of the letter would be material or other than the delays that would otherwise occur in processing the transaction. The test made it clear that the purchase obligation was imposed on the company. That it was the company that issued the bill of exchange and mailed it to the withdrawing bankers with the appropriate direct collection letter. Consequently, the bank's only function was to receive telexes/rapid acceptances from the bankers referred. There was no suggestion that there had been or could have been any delays in this section. Obviously there was some delay in sending the draft to Continental Bank, and *705 it was reasonable to assume that there would be some delay in Continental Bank's application for enforcement by its client, but the overall objective of the proceedings became changed to my knowledge to leave this aspect of the transaction in the direct control of the bank customer. The company had the opportunity to put pressure on its customer to complete the transaction with minimal delay. I don't understand how the bank could have foreseen the success the company would have in seeking or advising its clients.

It seems to me that it would be impossible to review the decision in Hedley Byrne and Co. 417 on the facts of the present case.

(Video) Medical Malpractice Litigation: The Medical and Legal Perspectives

Where Hedley Byrne v. Heller extended the concept of negligent acts causing financial loss to negligent misrepresentation with the same result, this case would further extend the statute to implied statements. But even if that extension is justified, it is difficult to infer from the parties' files an allegation that it was carried out negligently and caused economic damage. It cannot be argued that the bank was negligent or otherwise led the company to believe that the bills of exchange were accepted before they were honoured. This was obviously impossible given the dates on which the various transactions were made. If it is claimed that the early discounting of invoices was a representation that this process would continue, then the company is effectively claiming that the original contract was modified and there is no evidence (or argument) to support that conclusion. The reality is that the bank acted negligently in the sense that it failed to take reasonable steps to protect its own interests. They did not wait for the letter of acceptance before receiving the discount and may have lost insurance coverage as a result. In my opinion, they have made no representations, express or implied, to the company. The company was merely the beneficiary of an unfortunate administrative error in the banking system. I agree that correcting this error in a very short time for the company must have contributed to the serious financial problems it was experiencing at the time, but I do not see that the bank failed in its duty by making an error regarding that has done running their own business or in troubleshooting when they are identified. Given the circumstances, it seems to me that this argument, too, must fail.

Finally, I would like to add that the evidence presented in this case does not shed any light on Mr Fabien. All bills of exchange presented to the bank, whether accepted or not, have been duly paid and the bank has been fully reimbursed for all advances it had made, plus interest and all costs and charges due to it.

The fact that advances were made to the company earlier than expected could be for Mr. Fabien, but it should be noted that he accrued interest on these advances from the date they were paid, so the bank benefited from the advances as much as the company . It is particularly important to stress this aspect of the problem, *706 as unfortunately during the course of the hearing an article was included in RTE's midday news, an article on corporate matters which, given some of the findings, caused or implied problems to the complainants of great concern. In fact, these allegations were completely irrelevant to any questions I had to decide for the purposes of this trial.

TE Potterton Ltd v Northern Bank Ltd
1986 No. 7503P

supreme court

19. June 1992

[1993] I.L.R.M. 225
(O'Hanlon J)

19. June 1992

Topic: Banking and finance

Keywords: duties of bankers; reviews; beneficiaries

Bank - Check - Check returned by bank indicating draft required to confirm payee - Beneficiary accepts subsequent check - Applicant does not receive full payment of previous check - Whether the bank owes the payee any obligations - Whether the bank has a calculated behavior set the day to deceive the beneficiary

The author devotes himself to the auction and sale of cattle. Tansey Farms Ltd (the Company) was a frequent buyer of cattle at the plaintiff's markets for several years until 1985. Payments for these purchases were made by checks drawn on the company's account with the defendant bank. In a sale on 28 November 1985 the company bought cattle valued at £39,983. A postdated check dated December 6, 1985 drawn by the defendant bank was offered as payment, which was presented for payment on December 4, 1985 and sent to the defendant bank for payment in a timely manner. . The check was returned by Defendant on December 9, 1985 with the notation "Refer to the issuer, resending an amendment requires an acknowledgment from the issuer," indicating that an amendment to the check required an acknowledgment from the issuer. On December 12, 1985, the check was presented again for settlement, unchanged and without further consultation with the issuer. The check was returned with the original words but with a line through the words "resubmit". During this period the plaintiff sold a further shipment of cattle to the company and was paid on 6 December by a further post-dated check dated 13 December 1985 for £13,298. This second check was presented for payment and was marked 'ref in the drawer' by the defendant. The author did not receive a permanent payment from any of the checks. The company went into liquidation in July 1986. There was evidence of a flexible procedure by the defendant in paying money from his client's account in cases where the allowable overdraft amount was reached. Evidence was found that during the relevant period of December 1985, Defendant paid a substantial sum of money on the basis of checks issued by the Company. Plaintiff sued Defendant for negligence and breach of duty based on Defendant's notice of refusal to pay by check, which Plaintiff characterized as negligent misrepresentation of the true state of affairs and prompted it to act on its behalf. .

Confirmed by O'Hanlon J when he admitted the author's claim that:

(1) The general rule that a paying bank has no obligation to a payee of a check other than its customer is qualified when the bank willfully *226 engages in conduct likely to deceive the check for its own purposes of the Check in a manner that could result in financial loss to that payee and where there is no legal justification for such action by the Bank;
(2) There was no justification for returning the first uncashed check on the grounds that it contained tampering that could reasonably require acknowledgment by the issuer.
(3) The reference to the amendment was a device devised by the defendant to get out of an awkward situation where the account could not pay the checks coming in for payment, but the defendant was unwilling to formally void the checks as he had thought it possible likely to be funded in time.
(4) The words written on the check when it was returned were calculated and had the effect of giving the complainant a false sense of security and leading him to believe that payment was being withheld for technical reasons, namely the way the check was filled out.
(5) By notifying the reason for the refusal to pay the check, the defendant undertakes to act honestly and carefully and not to deceive the plaintiff by giving a false reason.
(6) The defendant violated his duty of care because he was willing to justify the refusal to pay.
Cases to which the judgment relates
Bank of England v Vagliano Bros [1891] AC 107
Bank of Ireland v. Smith [1966] IR 646
Dublin Port & Docks Board gegen Bank of Ireland [1976] IR 118
Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465
Robinson v National Bank of Scotland Ltd (1916) SC 154
Brian McCracken SC and Vincent Foley for the author
Eoghan Fitzsimons SC and Sunniva McDonagh for the defendants

entered judgment on June 19, 1992, stating: Plaintiff's company operates a livestock auction and sale business with markets in Trim and Delvin, Co. Meath and market sales are held every Thursday in Delvin. Liam McMahon, who ran his business through a private limited company, Tansey Farms Ltd, with farms at Roslea, Co. Fermanagh and near Clones, Co. Monaghan, was a cattle buyer at the markets prior to 1985 and throughout the year of the author. Where appropriate, these cattle purchases were paid for by checks drawn on Tansey Farms Ltd's account with Northern Bank Ltd, The Diamond, Clones, Co. Monaghan.

In a sale by the author on November 28, 1985; said Liam McMahon, speaking on behalf of his company Tansey Farms Ltd.

The check in question was presented for payment by the plaintiff at his own bank, Ulster Bank Ltd, on 4 December 1985 and sent to the defendant bank for settlement, but was returned by the defendant bank on 9 December 1985 with the note 'refers to the drawer". Resubmit change requires subject confirmation" (short for "modification requires subject confirmation").

The plaintiff's bank, Ulster Bank Ltd, re-presented the check for settlement on the plaintiff's behalf on 12 December 1985 with no alteration and no acknowledgment by the drawer of any part of the making of the check, on which occasion it was returned to the defendant with the original words 'see drawer' and 'change requires conf from drawer' but with a line through the words 'resubmit' which was part of the original message when the check was first rejected.

Mister. Edward Potterton, director of the plaintiff's company, said they were not overly concerned when the check bounced a second time. He contacted Mr. McLoughlin, manager of the defendant bank's cloning branch, and told him to see Mr. Liam McMahon. He complied and told him that "there was a problem". Meanwhile, on December 5th, another shipment of cattle was sold to Tansey Farms Ltd and paid for by a check dated December 13th, 1985 which was paid to the plaintiff on December 6th, 1985 and when presented for payment it was found with the Note "see drawer" returned.

The plaintiff company never received a permanent payment from either check. On 23 December 1985 proceedings were instituted against Tansey Farms Ltd and a judgment was obtained against them in May 1986 but the company was wound up in July 1986 and nothing was recovered from the judgment. Against this background, the present proceedings against the defendant were initiated on the grounds that the damage suffered by the plaintiff was due to the defendant's negligent handling of the check dated December 6th in a breach of duty. 1985 presented to you for payment on or about December 9, 1985 and arising out of your refusal or failure to pay within a reasonable time.

Defendant denies any negligence or breach of duty in the circumstances of this case and denies any duty of care to Plaintiff. It is alleged that the plaintiff suffered no loss or damage as a result of the facts alleged against the defendant, and it is alleged that the plaintiff was guilty of contributory fault even where the defendant was negligent (which is disputed).

Edward Potterton claimed in the course of his testimony that the defendant did in the critical period of the first weeks of December 1985 pay sums of the order of £80,000 on the basis of checks made payable to Tansey Farms Ltd.'s account. During this time.


Mister. McLoughlin, then manager of the defendant bank's Clones branch, said that in 1985 Tansey Farms Ltd was allowed to overdraw its account up to a limit of £40,000. From time to time, more leeway was given if the company could demonstrate that there were future payments that could be relied on, such as B. VAT and MCA credits. It was the practice of Mr. McMahon to call the bank weekly to see what checks had been received for payment and tell the bank what was owed to the meat processing company. "Depending on their guarantees, we would either pay them or send them back," McLoughlin said.

He said the check payable to the plaintiff for £39,983 arrived on Friday 6 December 1985. Two other checks were received the same day (or the day before), one for around £17,000 and the other for around £3,000. . As the account could not serve everyone, they were postponed to the following Monday. Two checks received on Thursday were retained and paid on Friday.

The witness then said (contrary to his earlier statements) that the checks held up to Monday were four, for the following amounts: £39,983; £37,642; £3,956; £340. It was decided to pay the three smaller amounts and return the larger check with two separate endorsements. He said that the note "Referred to the drawer - found again" should have conveyed to the author that there were not enough funds in the account to pay the check. When the check was presented again for payment around December 12th or 13th, a flood of checks had arrived; the funds were not yet sufficient; the words "resubmit" were crossed out and the check was returned with the words "see drawer change requires drawer configuration." was written in capital letters or block letters, while the other words were in general script.

Mister. Anderson, who was an assistant manager at the time, said the check for £39,983 arrived on the morning of December 6 and, had it been paid, would have put the account £9,000 above the £40,000 overdraft limit. It was decided to pay the two smaller checks in accordance with standard banking practice.

In connection with the issue of liability in this case, a number of issues need to be considered. First, I need to determine whether the return of the uncashed check was warranted on the grounds that it exhibited tampering that could reasonably be expected to require the issuer's confirmation before the issuer's bank could safely cash it.

In my opinion, returning the uncashed check was not justified on this basis. Although the word "nine" is written in capital letters and the other words in common script, it appears to have been written at the same time, with the same pen, and in the same handwriting as *229 throughout the remainder of the check writing.

In addition, testimony was given by John Pearson, a farmer who did business with Tansey Farms Ltd, and also by Liam McMahon of Roscommon Co-Op Marts Ltd, who also did business with that company, each of whom received checks from the company had written the same word "nine" in capital letters and the remaining words in common script in early 1985 and had been cleared by the defendant bank without hesitation when presented for payment.

I conclude, based on the evidence on file, that the Defendant's question regarding the change requiring the issuer's confirmation was merely a device invented to get the Defendant out of an embarrassing situation involving more checks required for payment when the account was cashing, but they were unwilling to formally void their customers' checks because they believed (based on past experience) that if they had more time to do so, they were likely to finance.

I believe Tansey Farms Ltd was allowed to operate its account fairly flexibly for a considerable period prior to the company's eventual collapse, but there was always a risk that the liberty afforded by the bank could result in losses to the company's creditors.

I do not accept the bank witnesses' claim that the words endorsed on the check when it was first returned were intended to convey two distinct messages to the author: that there was insufficient funds in the account to pay the check, and that neither was the check's record required confirmation from the exhibitor.

I believe that the words written when the unpaid check was returned were intended to give the payee a false sense of security and make them believe that the payment was only withheld for technical reasons related to the way the payment was made check over. If this had actually been a concern for the bank, they could have resolved it immediately with a simple one-minute phone call to their own client.

Whilst it is generally accepted that a bank is under no obligation to anyone other than its customer when a check is presented for payment, I believe that this general rule needs to be qualified where the bank is deliberately engaging in conduct for its own ends. capable of misleading the payee of the check in a way that could result in pecuniary loss for the payee and where there is no legal justification for such action on the part of the Bank.

The general rule that a paying bank has no obligation to the payee of a check has been affirmed by the High Court in Dublin Port & Docks Board v Bank of Ireland [1976] IR 118. Kenny J said on page 141:

With the exception of claims under Section 74 of the Bills of Exchange Act or to specially cleared checks (Article 79(2) of this Act) or to checks marked as good by the paying bank, the general principle is that a Payee not entitled to sue bank where check was made out if check bounces: Hart's Law of Banking, 4th ed., p. 340

The court dealt with the obligation of the bank to which the check was drawn to pay at the end of the check and the order in which checks should be paid when the total presented for payment exceeds the funds available to cover.

Another issue to be resolved arises in the present case, where the claim is not based on the defendant's bank's failure to pay at the foot of the check upon presentation, but on the communication that the defendant sent to the plaintiff's bank as a bank presentation. , and therefore also to the author by refusing payment at the end of the check. The plaintiff asserts that this message, with the alleged reason why the check was undeliverable at the time, represents a negligent misrepresentation of the true circumstances and caused the plaintiff to act to her detriment or to refrain from taking measures of her own. would have taken if the true position had been made public.

A banker is required by law to cash checks made out to a customer in his name provided he has sufficient funds at the time and is available for the purpose or provided the checks fall within the limits of an agreed overdraft. You must pay checks immediately or refuse payment; a request for reinstatement is tantamount to dishonor. (Halsbury, Laws of England, 4th ed., Vol. 2, paragraph 163; Bank of England v. Vagliano Bros [1891] AC 107, 141, 157).

Situations where liability for damages relating to negligent misrepresentation or otherwise relating to negligent misrepresentation may arise have been investigated in a number of cases both here and in the UK over the last few decades.

In Bank of Ireland v. Smith [1966] IR 646 Kenny J., then Supreme Court Justice, dealt with a situation where sellers in a judicial sale acted through auctioneers as agents published an advertisement for land for sale. that he had made a fundamental mistake in the description of the property. The learned judge felt that the announcement, though made innocent and honest, was a misrepresentation.

In these circumstances, it ruled that it would be against the seller's conscience in a court sale not to be bound by any statement made by his agent in connection with that sale, and further ruled that the buyer was entitled to claim damages for infringement to require guarantee. against seller.

Kenny J. also considered the alternative claim presented that an auctioneer acting on behalf of a seller must ensure that the buyer will rely on any statements made about the property and therefore has a duty of care to the buyer and is liable to pay damages to the buyer , if The statement was *231 wrong and carelessly made. Having already established that the auctioneers' declaration was honest and innocent and without negligence on their part, I believe that part of their judgment must be taken as obiter dicta.

He said on p. 660:

In my opinion the decision in Hedley Byrne & Co. Ltd v Heller v Partners Ltd provides no support for this surprising claim. He believes that where a person solicits information from another person in circumstances where a reasonable person would know his or her judgment would be relied on, the person providing the information must use reasonable care to ensure that her answer is correct, and if not, she is also liable for damages: But the relationship between the person seeking the information and the person providing it must, if not on a fiduciary basis or arising out of a contract for pecuniary interest to use Lord Devlin's phrase, before any liability can be 'contractually equivalent'...that is, assuming responsibility in circumstances where a contract would be formed without consideration.

In the case of Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465, cited by Kenny J, the scope of liability for negligent misrepresentation is broader in Lord Reid's speech than in the passage from Lord Devlin's speech. Lord Reid explained the position as follows on p. 483:

I believe that our current law is based on common sense that innocent but negligent misrepresentation is generally not grounds for action. There has to be more than one wrong statement. So I'm reaching out to the authorities to see what else is needed. The most natural premise would be that the speaker or the writer has assumed some responsibility, either expressly or by circumstance, and that does not seem to me to be contrary to any authority in this House. Where there is a contract, there are no difficulties with regard to the parties to the contract: the question is whether there is a guarantee... Then there are cases when a person does not limit himself to making a statement, but provides a gratuitous service. I do not intend to go into the cases in this regard, but at least they show that in some cases that person has a duty of care outside of a contract, and to that extent opens up the possibility of arguing that there might be a duty of due diligence when making a due diligence statement independent of the contract fact or opinion.

Lord Reid then refers to a series of decided cases culminating in Lord Haldane's trial in Robinson v National Bank of Scotland (1916) SC 154 and continues:

This passage makes it clear that Lord Haldane did not think that due diligence should be limited to cases of a strict fiduciary relationship*232 which had been recognized as fiduciary by the Court of Chancery. He speaks of other special relationships and I see no logical stopping point outside of all those relationships where it is evident that the party seeking information or advice was trusting the other to exercise the due diligence that the circumstances under the given circumstances required. that it was reasonable for him to do so and when the other gave information or advice knowing or ought to have known that the applicant trusted him. I say "need to know" because when it comes to negligence, we now use the objective standard of what a reasonable person would have done.

I think there are three paths open to a reasonable man who knows himself to be trustworthy or trustworthy in his ability and judgment. You may remain silent or refuse to provide requested information or advice; or he might give an answer with the clear qualification that he accepts no responsibility for it, or that he gave it without the thought or investigation that a careful answer would require; or you can simply respond without any such qualification. If you choose the latter route, I think you should consider that you have accepted some responsibility for having answered carefully or for having entered into a relationship with the asker that requires you to exercise due diligence appropriate to the circumstances .

See also what was said by Lord Morris de Borth-y-Gest, whose legal testimony Lord Hudson agreed with.

In all cases where negligence, misrepresentation or negligent representations are pleaded as a cause of action, the question then arises as to whether there was a contractual relationship, express or implied, or any other special relationship such as Lord Reid refers to, between the parties on what can justify an obligation to pay compensation for financial losses that can be attributed to the fact that the plaintiff acted in faith in the defendant's account.

Since Hedley Byrne & Co. Ltd v Heller & Partners Ltd and since Kenny J interpreted his actions in Bank of Ireland against Smith, particularly in the current area of ​​wrongdoing. Misrepresentation and negligent misrepresentation as noted in McMahon & Binchy, Irish Law of Torts, and the case book which forms a companion volume to this excellent textbook.

If Bank of Ireland seller c. Smith had left jurisdiction for an unknown destination, taking with him all proceeds of the sale, and the auctioneers were found guilty of negligence as to the details of the property for sale. Consider it another "scary thing" if the unlucky buyer were trying to recoup some of their loss from negligent auctioneers.

Coming back to the present case, when the plaintiff, through his own bank, deposited the check drawn on Tansey Farms Ltd's account for payment at the defendant's bank*233, the defendant, like an ordinary banker, was obliged to cash the check immediately, if any, to this time sufficient time and available funds for the purpose or whenever the check was within the limits of the agreed overdraft. Otherwise, the defendant had to refuse payment immediately. If this had been done unconditionally, the result would have been that the applicant would have been immediately made aware of the inability of the company issuing the check to honor its obligations, and the applicant would have had to accept whatever it was. He still had steps to secure payment and take any other action that could be taken to protect himself. In these circumstances, no liability could have been attributed to the defendant.

However, the defendant went further and undertook to tell the plaintiff the reason why she refused to pay the check at the time. In doing so, in my opinion, he has undertaken to act honestly and diligently and not to mislead the plaintiff by stating an untrue reason, but a false one (as alleged in the statement of defense and supporting evidence on behalf of the author).

This puts the case, I believe, within four walls of the kind of situation envisaged in the last quoted paragraph of Lord Reid's speech in the Hedley Byrne case (assuming it has yet to be done), where Mr Deputy deals with the three options , available to a reasonable man who willingly offers information or advice to another person, knowing that his ability and judgment are reliable and that the other person trusts him to exercise the degree of care that circumstances may call for.

If, in such circumstances, you respond without qualification or disclaimer, "You must [...]".

I contend that the Defendant breached the duty arising from the particular circumstances of this case to answer carefully and fairly, since she agreed to state the reason for her refusal to pay at the bottom of the check, and that the Plaintiff did so herself caused financial damage and decide the question of liability in favor of the plaintiff and against the defendant.

This leaves the question of damages, which is fraught with difficulties. What would have been the outcome if the defendant had "confessed" and immediately returned the check with a note clearly stating that there was no money to pay it?

Tansey Farms Ltd's McMahon said the bank had occasionally allowed him to overdraw as much as £73,000 depending on how many shares he had available from time to time and that he had plenty available in November and December. He continued: "If Mr. Potterton had on the 10th/11th December 'no return'. I'm sure they would have settled me before I accepted another check *234'... 'I would say some of their cattle were still there. '

Potterton stated in Evidence that "if there had been no funds I would have asked McMahon to give me back the cattle; they were still ours until the check cleared... We would have followed the second check much more quickly if we had known that it wouldn't be possible." ". he knew'.

Tansey Farms Ltd. bank accounts presented as evidence. show that up to and including 17 December 1985 substantial borrowings were made and up to and including that date similarly substantial payments were made from the account and finally the account was overdrawn up to an amount of £45,314.59 from 17 January 1986. early December It was discovered on December 3rd in 1985 for £65,114.54. Mister. McMahon said if he could find a place to stay, people would come in and get paid.

This tells me that when individual creditors were aggressive towards the debtor, there were times when Mr. McMahon would bank when he was making a presentation and make sure they were paid on the spot, putting them ahead of the pack. Corps of creditors left with no remedy after the company's final bankruptcy.

It is my opinion that if the author had found Mr. McMahon's critical condition as soon as expected if the defendant had dealt openly and frankly with the check when it appeared for payment, the plaintiff would have acted immediately and put as much pressure on Mr To pay McMahon, to distribute a portion of any money remaining to him in his claim and/or to return any shares he still owns.

While it is very unlikely that the plaintiff recovered the full amount of his claim, I think it is likely that something significant was salvaged from the Tansey Farms Ltd sinking in this way and I estimate what is listed at 20,000 £ . I also take into account what I consider a probability that if the bank had not used the device with which it would have postponed the day of settlement in connection with the check made out in favor of the plaintiff, it would have considered the deposit to be more complete Name, four other checks presented at the same time totaling over £40,000 leaving the claimant without payment.

On this basis, without finding contributory negligence on the part of the plaintiff, I hold the defendant liable to the plaintiff for negligence and breach of duty as a result of the plaintiff's claim in these proceedings and quantify the damages in favor of the plaintiff at the above amount of £20,000. I am also awarding the plaintiff interest on this amount under the terms of the Courts Act 1981, but as the plaintiff has not been very diligent in handling his claim I will order the interest to be extended from the October 21, 1989 due date of the Letter of Intent is September 21, 1989.

Kelly vs. Boland

John V Kelly, Peter J Murphy, Brendan J Murray, Peter A Farrelly, Charles A Lorigan and Patrick J King vs Harry Boland, Frank Donnelly, Paul Carty, Stan McHugh, Denis Mehigan, Michael Morris, Michael McMahon and James Stewart (advertising by Haughey Boland & Co)
1983 Nr. 3190P

supreme court

July 30, 1985

[1989] ILRM 373
(Lardner J.)

Lardner J

issued its judgment on July 30, 1985, stating: In this lawsuit, plaintiffs seek damages for negligent declarations and negligence of defendants in the transactions leading to the purchase by plaintiffs of the assets and trading company Royal Tara China Ltd Agreement of 4 November 1977 for £380,000 and in the preparation of that company's accounts, which were made available to the plaintiffs during the negotiations, for the accounting periods 31 December 1973 to 31 December 1976 inclusive.

The plaintiffs are a group of businessmen who in 1977 were shareholders and directors of Cavan Crystal Ltd, which manufactured glassware. This company was established some 12 to 14 years ago and Mr. Brendan Murray, the third plaintiff, described it as doing very well in 1977, having established a satisfactory trade in Ireland and abroad through its sales organization. In early 1977, plaintiffs considered diversifying into another product that would complement glassware and concluded that fine china met that need. They discovered that Royal Tara China Ltd, a Galway based company, was the only manufacturer of this type of porcelain in Ireland. This company was founded in 1953 and has since been owned by Mr. Kerry O'Sullilvan and his wife. In 1977 and the years before, Mr. O'Sullivan was managing director, responsible for production and sales.

The auditor of Royal Tara China Ltd since its inception was Mr. Stan McHugh, third defendant, and the remaining defendants were his partners in the firm of Haughey Boland at the time of the record, known chartered accountants.

Mister. As it turned out, Kerry O'Sullivan was an acquaintance of Mr Peter J Murphy (the second applicant), the managing director of Cavan Crystal Ltd. In early March, *375 1977, Mr. Brendan Murphy (another director of Cavan Crystal Ltd) and Mr. Peter Murphy met with Mr. and Mrs. O'Sullivan in Galway to ask Mr. O'Sullivan's advice and questions whether he would be interested in acting as a partner or consultant in the proposed new company. At that time, the plaintiffs were considering the construction of a new Chinese porcelain factory in Cavan. The meeting with the O'Sullivans was brief. Mister. O'Sullivan was a sick man suffering from a terminal illness, although he was excited when he heard the plaintiff's plans and was willing to help. Shortly afterwards Mr. O'Sullivan died and the plaintiffs learned that Royal Tara China Ltd was for sale. Mister. Murphy attended the funeral in Galway and shortly thereafter Mrs O'Sullivan wrote to Mr Murphy sending two copies of the company's most recent accounts. Later, in April, Ms. O'Sullivan sent Mr. Murphy additional bills for some, but not all, of the years 1967-1976. Two weeks after the funeral, Mr. Murphy said and Mr. Murray visited the factory twice and subsequently visited with Mrs. O'Sullivan on several other occasions. Also present were Mr. Morris, who had technical knowledge and skills as a ceramic artist and had been hired as a consultant by Royal Tara China for a few months, and Mr. Enterprise. On several occasions Mr. Murphy saw the factory in operation. His goal was to collect as much information as possible about Royal Tara China Ltd. In mid-April, Mr. Murphy and Mr. Murray reviewed the accounts and Mr. Murphy prepared his analysis and summary of the reports he received from Ms. O'Sullivan. , which included the financial statements for the years 1967, 1968, 1972, 1973, 1974, 1975 and 1976. At this time the audited accounts for 1976 had not been prepared and the accounts for the year ended December 31, 1976, which were given by Mrs. O'Sullivan to Mr. Murphy and Mr. Murray, were internal company accounts, the from company accountant Mr Sean Keane and reported a commercial loss of £6,084. Then, in June, the authors received draft accounts for 1976, which I will come back to later in my judgement. This draft account for 1976 showed a net trading profit for the year of £946 and this figure became Mr Murphy and he adjusted the figures in his summary accordingly.

The evidence shows that Mr Murphy and Mr Murray visited Galway on several occasions and held talks with Mrs O'Sullivan. First, they said they seemed interested in getting the purchase price paid for a sizable down payment, with the balance due in multiple installments over a number of years. Mister. Murphy and Mr. Murray went out and calculated the numbers and then came back and gave them to Mrs. O'Sullivan. Mister. Murphy says that Mrs. O'Sullivan said he had to do that with Mr. McHugh. He says she changed her mind from meeting to meeting as they tweaked their proposals or offers. None of the proposals made in early summer 1976 were for Mrs. O'Sullivan.

The commitment of Mr. Stan McHugh, the fourth defendant, with Mr. Murray appears to have first appeared in May 1977. He became Mr Murphy when he was in Galway for examination in April 1976 and understood in *376 that he thought a sale by the O'Sullivans was a possibility. Then, in May, Mr. Murray, whom Mr. McHugh had never met before, was called Mr. McHugh in Amiens Street, Dublin at the end of the day. He said he saw Mrs. O'Sullivan a few days earlier. They had a long conversation in the office. As it was late, Mr. McHugh invited him to lunch at the Hibernian Hotel, and there they continued their conversation. Mister. Murray says they discussed the big picture, which Mr. McHugh said the company is doing well and the O'Sullivans are doing well; that Mr. O'Sullivan was unable to attend to the business and the results on the accounts were still very good; that they didn't have the accounts at dinner and didn't discuss the numbers at that meeting. He says that Mr. McHugh told him that he had been an auditor and director for many years and knew the company well and that he, Mr. Murray, accepted what McHugh said in good faith. During the trial, plaintiffs attempted to rely on some of these statements, allegedly made by Mr. McHugh as collateral.

Mr McHugh's recollection of that meeting is that Mr Murray said he had made Ms an offer. O'Sullivan a few days earlier and they discussed it, but he made Mr. McHugh. McHugh agrees he could have said the O'Sullivans did well on the deal, but said he didn't discuss the specific terms of a buyout.

Subsequently, on May 26, Mr. Murray and Mr. McHugh spoke on the phone. Mister. Murray was en route to Galway that day with what he called a "global offer" that he had given Mrs O'Sullivan. According to Mr. McHugh, this was the last meeting with Mr. Murray until November 4, 1977, when the deed of sale was signed. There is conflicting evidence as to how often Mr. Murray and/or Mr. Murphy met with Mr. McHugh prior to November 4, 1977, when a contract was formed. Murphy says they have met on other occasions, some in Galway. He has no record of such meetings and his diary records no meetings. McHugh said that apart from his first meeting with Murphy in Galway in April, his only meeting with Murphy before November 4 was in May, when Murray called his office and later had dinner with him. In this connection I believe that Mr. McHugh is more specific and I accept what he says about his meetings. However, there was an exchange of letters between Mr McHugh and Mr Murphy after Mr Murray in Galway. In a letter dated June 13, 1977 to Mr. Murphy, Mr McHugh wrote:

Last Thursday and thereafter I had brief conversations with Mrs O'Sullivan in which she referred to her visit to Galway last week. He said he didn't fully understand or remember exactly the exact numbers you gave the day before. I understood that she was saying that I had asked her to make a written offer and with that in mind she asked me to write to her to make the formal request. You will understand that we have other interested parties to continue the business as a going concern by purchasing shares in Royal Tara China Ltd. to acquire. From what I have between you and Mr. Murray, you have already received all the information you need. can make a formal offer to purchase all of the share capital.

Regarding this letter, Mr. Murphy replied on June 23 as follows: *377

This is a continuation of your letter of the 13th of the present and my subsequent phone call. From our point of view we have already decided to build a bone china factory and the original idea was to build a new factory in Cavan. At that time we didn't know that Royal Tara was on the market. Since Royal Tara is already on the market, we are of course interested.

Negotiations so far have been really unsuccessful as by proposing a long-term payment we understood that this was for Mrs O'Sullivan. A lot has happened since then though, so we'd better start from the beginning. Since we began negotiations you have received a number of interesting leads and I am sure by now you have some awareness of the market value of the company. If it is still available we would like to meet with you at a convenient time to discuss a possible purchase. In relation to your request to make us an offer, we believe there may be a better chance of success if you could contact us at our meeting via Ms. O'Sullvan regarding the price, housing requirements or any other specifics of the offer for sale. .

I accept that this was the last time Mr. McHugh was involved in talks related to a sale. Evidence of the immediate subsequent communications between Mr. Murphy and Mr. Murray with the O'Sullivan family is unclear other than the fact that no offer was made, which the O'Sullivans accepted. On 26 July 1977 Mrs O'Sullivan wrote to Mr Murphy complaining that he was unable to offer £300,000; She explained that there are now three companies very keen to close the deal and said she's not really looking forward to doing anything before September 24 when her daughter Judi gets married. Murray and Murphy say discussions have cooled after this letter.

Mr. Murray's evidence then was his and Mr. Murphy regarding the sale was when they met Mr. Paul Carty in the month of September 1977. Mr. Murphy thought they had had Mr. Carty in Dublin three times. Mister. Carty says his first contact with the plaintiffs was on Friday, October 14, 1977 when Mr. Murphy and Mr. Murray arrived at his office. Mister. Carty, one of the defendants, has been an accountant and partner at Haughey Boland since 1966. His field of activity includes the purchase and sale of companies. Mister. Carty kept a diary in which she recorded appointments and time spent on appointments. His practice was to write in an attendance book what happened at each session. From this he made a note for the customer file. After checking his 1977 diary entries and attendance book, he said he learned that Royal Tara China Ltd was up for sale on 14 July 1977 when Mr McHugh consulted him on a technical matter. Other than that, he himself was not involved at the time and had no knowledge of the plaintiff's or Cavan Crystal's interests. Around 19.08. McHugh sent him a memo urging him to start negotiations for the sale of Royal Tara China Ltd. After 08/19 Carty noted that the plaintiffs were interested and that they were on a list with four or five other interested parties. Parties such as the Royal Copenhagen Porcelain Company and Beleek China. The Royal Copenhagen Porcelain Company was very interested and made an offer which Carty would be happy to recommend and which the O'Sullivans would accept.

After examining the conflicting evidence regarding the number of meetings and the times at which they spoke between Mr. Murphy and Mr. Murray on the one hand and Mr. Carty on the other hand, I believe Mr. Murray five or six times about meeting Mr. Carty, if before october 14th and mr murphy met him three times in dublin if before october 14th is wrong and i accept mr carty on the subject.

There is also a difference from what happened at the October 14, 1977 meeting. Carty says that Mr. Murphy and Mr. half an hour. She recalls that Mr Murray said they came to ask about the liquidation of Royal Tara China Ltd as Ms O'Sullivan directed them to Mr Carty on the phone on October 11th. Mister. Carty said they'd be there at the last minute. Negotiations with another company were in the final stages. He received an offer from the Royal Copenhagen Porcelain Company (although he did not publish it) for £340,000, which he was able to recommend. As she entered the meeting, she felt like falling between two pews and wondered what to ask for. He decided to ask for £380,000 as a take it or leave it award and he did. He gave them 24 hours to make an offer and said he would be at his office at 12:30 p.m. M. on Saturday, October 15, because they wanted time to discuss the matter with their co-investors.

Mister. Carty says he explained the basis on which the offer and sale must be completed, that the balance must be used by December 31, 1976, and that buyers will be protected in the event of a loss for the period beginning December 31, 1976 must . At the time of possession there would be a provision in the contract that the sellers would have to make up for that loss and, if there was a gain, a surcharge proportional to the purchase price should be made. He said he felt he should provide the information he had on the 1977 deal and said he had Sean Keane from the 1st. He explained that these accounts were prepared showing an equilibrium trading position with inventories as the equilibrium value and the annotations to these accounts showed that inventories were grossly inflated. He went on to explain to them that in his opinion, assuming a closing share of the same value as the opening share, there would be a trading loss of around £6,000 for the seven months ended 31st July 1977. He says that Mr. Murphy asked and told me what figures were in those accounts for commodities, sales and inventory as of July 31st, and that Mr. Murphy wrote down those figures. Neither he nor Mr. Murray showed much surprise and gave the impression that they were not overly concerned. No offer was made at that meeting and they had 24 hours to return if they wanted to make an offer.

Mister. Murphy said that regarding the occasions when she spoke to Mr. Carty, he could not say with certainty what was said. He considered that they had been informed of the factory's performance and that the 1976 accounts, which were in draft form, could be considered equivalent to the authenticated official accounts. He agreed that at the last meeting on October 14 Mr Carty said if they wanted to buy Royal Tara China Ltd they would have to offer a price of £380,000. Murphy wasn't sure if blueprints for managerial accounts had been made. They were there. He does not recall taking notes or having Mr. Carty read any part of these management accounts, or that these accounts showed no income for seven months to the end of July 1977, or that they were accompanied by a note that raw materials and china were too expensive. inflated.


Mister. Murray agreed as evidence of that meeting that Mr Carty said he already had an offer for Royal Tara China Ltd which should be accepted unless an offer of £380,000 was received. He did not recall Mr. Carty having or reading excerpts of handwritten business accounts for seven months ended July 31, or he, Mr. Murray taking notes, or Mr. Carty reported having none for seven months achievements. He also doesn't recall hearing that the inventory and commodity numbers were too inflated to indicate a break-even situation. He said "it didn't seem like it was anything very substantial" and that he had an explanation and a lot more information.

Having considered the testimonies of these three witnesses as to what happened at the October 14, 1977 meeting, I fully accept Mr. Karty's testimony. The impression he gave me was that his memory is more reliable based on his diary and attendance register. I am firmly convinced that Mr. Murray and Mr. Murphy are true witnesses, but I do not believe that they show or claim a clear recollection of many matters in which there is conflict, and I am not satisfied that their recollections of those matters are not confused. and inaccurate.

On Saturday October 15, 1977, the day after that meeting, Mr Murphy called Mr Carty and offered £380,000 on behalf of the plaintiffs for the assets of Royal Tara China Ltd. A formal offer letter dated October 15 was sent to Haughey Boland. As a result of a telephone conversation with Mr. A letter of confirmation, also dated October 17, was sent to Carty on October 17, 1977, stating that the offer was for all of Royal Tara China Ltd's tangible assets as detailed in the latest balance sheet, the buyers taking responsibility for the existing ones Royal Tara debts assumed by China Ltd. The next step was taken at a November 4 meeting at the offices of the sellers' attorneys, Drs. Kennedy and McGonagle when they presented a draft purchase agreement, which was discussed and some amendments agreed. at the request of Mr. Murray and Mr. Murphy, to whom I need not refer in detail.

I now turn to the purchase agreement of November 4, 1977. The sellers were Royal Tara China Ltd and its three directors, Mrs Eileen O'Sullivan, her daughter Mrs Judi Toussaud and her son Mr Paul O'Sullivan. The buyers were the six originators of this action. Paragraph (1) provided that sellers must sell and buyers must buy on the following terms:

(1) The goodwill of the Chinese porcelain manufacturing company which the seller carries on in all its branches, including wholesale, together with the exclusive right to use the name Royal Tara China or a similar name as a name or part of a name under which the aforesaid business being carried out hereinafter and representing Buyer, its agent or agents as the conduct of said business in the continuation and succession of Sellers and for the benefit of all manufacturing processes used by Seller in said business, including licences, patents and formulas, if any, and the proceeds, to the extent transferable, of all ongoing contracts of Seller in said business with its customers and suppliers;

(2) Seller's interest in the details of the property set forth in the initial listing of the property;

(3) the China stocks and all trading stocks of the seller in this deal;

(4) The equipment listed in the second Schedule to this document and all other equipment, machinery and equipment of Seller in this business;

(5) liabilities to the seller in this transaction;

(6) Cash and balances in Seller's bank accounts.

for. (2) deals with the purchase price and states that the purchase price will be £380,000, an amount calculated on the basis that the buyer has purchased the seller's "Net Assets" as shown in the seller's balance sheet on December 31, 1976, a copy of which is attached. The purchase price was split as follows: (a) for the seller's interest in the said property, the sum of £285,000 (b) for factory and office machinery and equipment, the sum of £6,279; (c) for the “Current Assets” of the Sellers, the sum of £109,768.

The sum of these three is the total of £401,047 less provisions for current liabilities of £21,047 giving a net total of £380,000. This paragraph now provides that the Supplier's auditors shall prepare an audited balance sheet (hereinafter referred to as the audited balance sheet) of the Supplier as soon as practicable by the scheduled completion date. for. 2(2) provided that the amounts shown in the Audited Balance Sheet for the Seller's total gross assets, including debts owed to the Seller, are less than £161,410, the Seller shall pay the Buyer the difference between £161,410 and the amounts shown therein . for. 2(3) provided that where the amounts shown in the audited balance sheet for the total gross assets of the seller, including debts owed to the seller, are £161,410, the buyer must pay the seller the difference between the amounts shown in the audited balance sheet exceed sheet itself and £161,410. for. 2(4) provided that for the purposes of this clause "Total Gross Assets" means the total amounts in the Audited Balance Sheet for Fixed Assets plus Current Assets. for. 2(5) provided that the audited balance sheet as at 30 November 1977 must be prepared by the Seller's auditors in accordance with Seller's accounting practice and performed on the same basis as the previous audit. for. 2(6) provided that any adjustments to the Purchase Price contemplated by this Clause are made by the Buyer's solicitors of the audited balance sheet within one month of the date of delivery to the Buyer. Each party shall pay to the other party interest at the rate of 15% per annum on the amount of such unpaid payments to the other party on the due date of the one month period to the date of effective payment. for. 2(7) then provided that any differences or disputes that might arise between the parties in relation to those calculations or calculations would be submitted to arbitration. The contract included a clause to pay a deposit of £95,000 on signing of the contract and pay the balance of the purchase price by 30 November, the deadline. for. (12) contained a guarantee from the sellers and directors and each of them to the buyers:

That the Company's Profit and Loss Account for the year ended December 31, 1976, a copy of which has been provided to the Purchaser, gives a true and fair view of the Company's financial position as of that date.

Subsequent to the execution of that contract and in accordance with the terms contained therein, the accounts for the eleven months ended November 30, 1977 *381 were prepared by the defendant's firm and the firm's employees were present at the inventory of those accounts. Plaintiffs make no claim as to the accuracy of these accounts and they are acknowledged by all parties as correct. The sale was completed on 30 November 1977, including the necessary adjustment provided for in Clause 12, and the plaintiffs took over management and caused a new company, Royal Tara China Ireland Ltd, to be formed, becoming shareholders and directors to complement theirs Mr. Michael Kilroy and the business was transferred to this new company which became responsible for its management and operation.

I now refer to the manner in which this purchase was funded. After the plaintiffs' offer to purchase the assets of Royal Tara Chain Ltd for £380,000 was accepted and a contract signed, the seven plaintiffs jointly underwrote £120,000 of the purchase price and intended to compensate partly through grants from Industrial Development and partly through a loan from Allied Irish Banks. These proposals were discussed with the Autoridad de Fomento Industrial and the bank and as far as I understand the evidence their approval was obtained prior to the completion of the sale but before formal approval was given the applicants had to make a detailed written presentation to the Autoridad de Fomento Industrial and also to the Bank about the existing assets and companies to be acquired, their proposals for their future development, the number of staff, the provision and proposals for their financing, including budget forecasts for the first two financial years of the new company, these forecasts based on the sales forecast of each year. This written submission, submitted by Mr. Murphy, became the I.D.A. with a letter dated November 14, 1977 and was also presented to the bank, both institutes financed the purchase. I do not intend to look at the presentation in detail, but I think it gives some indication of the applicants' visions and forecasts regarding the development and management of the company they wanted to buy and what they believe on the basis of all of their estimates is the information they received about the former company and which they allegedly should have received had they not been misled by the former company's 1975 and 1976 financial statements.

From viewing this presentation and the evidence, it is clear that the authors planned and intended to start a new company. There would be a new CEO. The workforce would increase significantly from 50 in 1976 to 81 in its first year of operation and 151 in its second year. Salaries were to increase from £76,401 in 1976 to £140,000 in 1978 and £332,000 in 1979. Facilities and equipment would be improved. The production pattern would change because although 21-piece tea sets were the former company's main product, the plaintiffs planned to introduce the production of individual gift items. Production quality would improve significantly; While much of the old company's production was second-rate and sold at a lower price, the new company was intended to have more of the premium production that would fetch a higher price. This would require less inventory *382 to be held and would increase the unit value of each item. Volume production would also increase significantly.

Another important part of the plaintiffs' proposals was to appoint a sales manager and, in my view, introduce new products from the company in stores that Cavan Crystal liked. This should result in a very large increase in sales. While total sales were reported in 1976 at £164,277, the new company's projected sales would be around £500,000 in the first year and £850,000 in the second year. Murphy said in evidence that he estimated the new company's production capacity at 60,000 tea sets, which was double the old company's production in 1976, and said that this was based on his estimate of the factory's production capacity plus the best. and amendments proposed at a cost of £11,000 the first year and £14,000 the second year. His sales projections were based on information from Cavan Crystal. This required the new company to more than double the old company's production achieved in 1976 in its first year. I notice two problems here. None of these projections or plans appear to have been communicated to Mr. McHugh, Mr. Carty, or the other defendants at any point in the trial before or even after the November 4, 1977 settlement. The information on which they relied came from sources other than the accused. Secondly, it is clear that these projections and plans were also made with knowledge of the situation and circumstances of the former company; which was headed by one person, namely Mr. Kerry O'Sullivan; that he had been in poor health for at least two years before his death and that management was weak and lacked an adequate sales organization; that in the six years from 1970 to 1976 the production of 21-piece tea sets fell from 46,482 to 27,925; that the workforce fell from 80 to 53 and that net profits from trading varied between a loss of £8,945 in 1974 and a profit of £940 in 1975 and £946 in 1976.

With the completion of the sale on November 30, 1977, Mr. Michael Kilroy. He had trading experience in various fields in the United States of America and Ireland for the ten years prior to 1977. None of these experiences related to the making of Chinese porcelain, although he says he was familiar with the basic principles of its manufacture. manufacturing. In his main review, Mr Kilroy said that when he went to Galway as chief executive he made few changes to the team. He began counting the stock produced in the first few weeks by the team he had inherited and found very low production figures of £1,500 a week. Production at that level took five or six weeks. After this period, he came to the conclusion that the company would not survive long at this level and a decision to switch production would have to be made. For this purpose, another 20 to 30 people were hired over a period of three to four months. A designer was hired to create a variety of bespoke gift items. In the past, the company produced 21-piece tea sets, which required large inventories to accumulate and ship because each set contained so many pieces. Kilroy said it took more than two years to implement those changes. He also saw a significant improvement in product quality, rising to 65% *383 “better” after the first six months. He said when he got there there was no manager except for a factory manager and a Mr. Morris who was a consultant on Chinese china.

On cross-examination, he said none of the new gifts had been produced for the first six months and that production remained on the standard line of 21-piece tea services. For 1976 the account showed a turnover of £164,000 i.e. H. over £3,000 a week for 47 weeks during the six months to 31. He accepted that the closing stock for the period was £24,792 so the closing stock for that period had increased by £22,000 and total manufacture including sales was £120,000 was, indicating production of £22,000 a month, or £5,000 a week with no new product launch lines. . He then agreed that the first few weeks could have been pretty bad at £1,500 a week production, but rapid improvements were made within six months after that. He explained that as soon as the extent of the problem was established, ie two months after December 1977, he doubled the price of tea sets, thereby increasing the unit value of the product. When he took over, he was very concerned about the lower than expected level of production. What was wrong, he thought, wasn't the factory or the job. When asked why they couldn't produce more, he said he couldn't give an answer without reference to historical events. He then went on to say that the company had production difficulties in the first phase, which included poor quality facilities and equipment and a shortage of adequate and experienced workers. This last factor was particularly true at the supervisory level. In addition, no sales force was hired until approximately 12 weeks after the acquisition, as the company initially had no stock to sell. It was suggested to him that the shares finalized at the time of the takeover were £2,569 and he agreed that, moreover, the company initially had no shares for sale and no new shares were available for sale before the start of 1978. Eventually he accepted, the company made a loss of £125,000 in the first 14 months after the takeover. The following year, 1980, the loss was £45,000. In 1981 there was a pre-tax profit of £69,168; 1982 profit of £126,023; and in 1983 a profit of £78,417 and in 1984 a profit of £152,611.

After completing this sale and taking over management in the early months of 1978, the authors found that the production and sales they had projected were not being achieved and began examining the accounts of Royal Tara China Ltd for 1976, among others and earlier years. On August 25th, 1978 Mr. McQuillen wrote to Mr. Carty complaining that stock values ​​in the 1975 and 1976 accounts appeared to be understated, resulting in inflated earnings for 1976, and seeking compensation for breach of the terms of clause 12 of the contract included warranty. I understand that these proceedings were subsequently stayed pending submission of the matters at issue at the time to arbitration, which has not yet been resolved. Meanwhile, in 1983, the authors' attorneys filed a lawsuit against Drs. Haughey Boland & Co. and the present proceedings were instituted *384 by subpoena dated March 19, 1983.

In their statement of claim in these proceedings, the plaintiffs first allege that the defendants acted as auditors in preparing the financial statements of Royal Tara China Ltd for the dated 31 audit of the company's financial statements for those years and in making certain representations in the negotiation of the Agreement to sell the company to the authors. Paragraph 6 alleges that the Defendants, in their capacity as auditors of said company, declared before the Plaintiffs: (a) that they properly certified the Company's financial statements for the years ended December 31, 1973 through December 31, inclusive, 1976 , (b) that the accounts of the company have been correctly prepared as at the dates stated and give a true and correct state of affairs and financial affairs of the company, (c) that the accounts and balance sheet as at 30 , 1977 have been prepared in accordance with clause 2 of the contract of sale and checked. It has been claimed that these representations were partly oral and partly written. To the extent they were oral, they were made at various negotiations and meetings which took place prior to November 4, 1977 between the plaintiffs, on the one hand, and the directors of the Company and the defendants acting on behalf of the others, on the other, and to the extent made in writing, from the accounts and financial statements of the company, which were presented to the plaintiffs during the hearings and at meetings of the defendants on behalf of the stockholders of the company to which the plaintiffs were entitled.

It is alleged that the Defendants intended and knew or should have known at the time of this Statement that the Plaintiffs would place their trust in them and cause them to invest the sum of £380,000 in the Company's assets and business ventures. and conditions included in the sales contract. Therefore, it is alleged that the defendants failed to properly investigate or verify the information upon which the financial statements for the years ended December 31, 1973 through December 31, 1976 were prepared. It is said that they did not give due consideration to their veracity or accuracy as they reflected a totally inaccurate and misleading view of the company's business standards and financial affairs.

It is further alleged that in preparing the November 30, 1977 financial statements and balance sheet, the defendants failed to disclose in the auditor's report accompanying the financial statements that there was a change in the method of acquisition of inventories in the November 30 financial statements and balance sheet gave 30 . 1977 and that the annual accounts and the balance sheet were not properly prepared and did not reflect the true and correct position of the company, but on the contrary gave a misleading and false picture of the business structure and financial position of the company at that time, to understand that the Accounts for the years ended December 31, 1973 through December 31, 1976, inclusive, misrepresented the true value of stock and trading shares of the named company, resulting in a misleading and inaccurate calculation as to the truthfulness and correct value of stock and work in progress of the Company on November 30, 1977. It was alleged at the time that the underestimate of the true value of the Company's inventory and work in progress*385 resulted in a false, misleading and incorrect calculation of accumulated profit and loss for accounting periods ended December 31, 1973 through 31 December 1 977

Finally, it is alleged that those statements and accounts dating from 1973 to 1977 induced the plaintiffs to pay the price of £380,000 for the assets and operations of Royal Tara China Ltd and suffered damage as a result.

Defendants requested details of these allegations by letter dated July 25, 1983, and in their response dated July 25, Stan McHugh and Mr. Paul Carty, Mr. Brendan J. Murray and Mr. Peter J. Murphy noted that the Company's business was and always was sound and (2) that the accounts certified by the Defendants were provided to the Plaintiffs at various times between March 1, 1977 and November 4, 1977 by the O'Sullivan family and/or by Mr. Stan McHugh and Mr. Carty and that these figures are the basis for discussions with the O'Sullivan family and Mr. McHugh and Mr. Carty happened. (3) It is said at the time that there were traditionally two main irregularities in Royal Tara China Ltd's inventory, namely: (a) many items were removed from inventory altogether; (b) many other items have been included at a very small fraction of their cost or value. (4) It is alleged that these discrete actions were introduced into the Company's operations in 1975, 1974 and earlier in 1975 and 1976 to show profitable business results, when in fact those years would have shown if the actions had been carried out correctly would be a trading position that runs into losses.

At trial the plaintiffs waived the damage claims they had made in their letter dated January 25, 1984 and, after being permitted to do so, provided further details in a further undated letter at the trial. therefore reformulated their claim to (1) claim the sum of £105,000 as the difference between the price paid and the actual value of the company's tangible net assets; (2) The sum of £95,000 is the estimated profit available for distribution in the form of dividend income to shareholders in Royal Tara China Ireland Ltd for the period 1 December 1977 to 31 January 1980. The defendants have put forward a defense which I need not detail. In fact, it was a treason and a denial of a breach of duty and a denial that the plaintiffs made the statements alleged in the complaint, or any statement.

The first question that arises from the case files is whether the defendants had a duty of care towards the plaintiffs when examining the annual accounts of the company and, if so, for which years?

At trial, the defendants' counsel acknowledged that such due diligence was due in respect of the accounts for the year ended December 31, 1976. As far as I understand, this allowance was granted on the basis that these accounts were audited. from Mr. Stan McHugh in April and May 1977 and certified by the auditors in June 1977, and in evidence he openly admitted that at that point, after Mr. O'Sullivan's death, he knew that Mrs. "Sullivan and his *386 families were actively considering and considering selling the company. But it is not admitted that the defendants owed the plaintiffs a duty of care with respect to the financial statements as of December 31, 1975, or as of December 31, 1974, or as of December 31, 1973, because it was said that they had not considered the sale was or could reasonably have been drawn by Mr. McHugh at the time of the audit for those years.

In their due diligence submission, plaintiffs' counsel relied essentially on that of Lord Wilberforce in Anns v Merton London Borough Council [1978] AC 728, pp. 751-752, where he said:

Through the trilogy of cases in this House, Donoghue v. Stevenson [1932] AC 562, Hedley Byrne & Co. Ltd v. Heller & Partners Ltd [1964] AC 465 and Dorset Yacht Co. By now the position has been reached that it is a finding that there is a duty of care in a particular situation, it is not necessary to relate the facts of that situation to previous situations in which a duty of care was determined. Rather, the issue must be approached in two steps. The first question to be asked is whether there is a close relationship, or a sufficiently close relationship, between the alleged delinquent and the injured party that, on reasonable consideration of the former, negligence on his part is likely to have caused damage to the latter where prima facie a duty of care exists. Second, if the first question is answered in the affirmative, it is necessary to examine whether there are considerations which should negate, limit or limit the scope of the obligation, or the persons to whom it is owed, or the damage to which it does not lead -compliance can To give reason. .

Counsel for the defendants contended that in cases of negligent misrepresentation or misrepresentation the issue fell within the formulation of the principle set out in Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465. Lord Morris said at p. 502 :

It follows, I believe, and should now be taken for granted, that where someone who has a special ability agrees, regardless of the contract, to use that ability to help another person who needs that ability, a duty of care is required. turn up. It makes no difference whether the service is to be rendered by means or by words. In addition, if a person is in an area in which a person is located in such a way that others can reasonably rely on his or her judgment or ability or ability to make a careful investigation, you accept responsibility for the provision of information or Giving advice or allowing your information or advice to anyone else who you know or should know relies on it creates a duty of care.

This latter test, if applied, would require complainants to rely on the examiner's skill and diligence as part of the liability test as well as part of the chain of causality. Both solicitors referred me and relied on a recent English decision, JEB Fastners v Marks, Bloom & Co. [1981] 3 All ER 289, a case which raised very similar problems to this case and which contains a useful overview. the English and some New Zealand decisions, Scott Group Ltd v McFarlane [1978] 1 NZLR 553. On p. 296 Woolf J. said:

without establishing a principle claiming generality, based on the authorities I have cited, the correct criterion for determining whether there is a duty of care in this case seems to be whether the defendants knew or reasonably should have known at the time Timing of the audit of the financial statements Evidence that a person could rely on those financial statements to make a decision about whether or not to take control of the entity and could therefore suffer losses if the financial statements were inaccurate. Such an approach limits those who are entitled to claim a breach of duty. First, they must have relied on the financial statements, and *387 second, they must have done so in circumstances the examiners knew they should or should have known. If the circumstances make it unreasonable to rely on the accounting, the auditor is not required due to a lack of explicit knowledge. This limits the circumstances in which audited financial statements can be relied upon and the period over which they can be considered. The longer the accounting period from the date of issuance of the auditor's report, the more difficult it is to demonstrate that the auditor should have expected the reliability of his report under the circumstances.

I respectfully accept this as a statement of the appropriate responsibility check to be applied in this case.

Applying this test to the financial statements ended December 31, 1976, I have no doubt that the defendants had such a duty of care, and indeed, as I have said, the defendants' counsel had such a duty of care. the course of the process. This year's examination appears to have taken place in April and May 1977 and the accounts were certified in June 1977. Murphy and Murray first approached the O'Sullivans in March, and the O'Sullivans' Sullivans had been actively considering selling the company since April 1977. Stan McHugh learned of this at the time of the audit and subsequently noted that there were a number of potential buyers that the complainants were one of before the accounts were confirmed.

With respect to the annual financial statements as of December 31, 1975, the defendants do not concede any duty of care to the plaintiffs. The auditor's report for these accounts is dated October 28, 1976 and it is assumed that the audit was carried out in the preceding months. 1976, Mr. Kerry O'Sullivan's health impacted management and the company's performance. Mister. McHugh says, and I accept his evidence, that he was unaware this year that the O'Sullivans were considering a sale and there is no evidence that it was, but that it was a possibility at the time. There is, however, the additional element cited by the Plaintiffs in relation to the 1975 financial statements, namely that the balance sheet and income statement figures for that year appear in comparison to the 1976 financial statements, which are certified and submitted by the Defendants were the course of the sales negotiations in 1977 to plaintiffs and other interested parties. It is my opinion that the authors, in examining the 1975 financial statements, should have reasonably foreseen and considered that a sale of the business might occur and that those interested in purchasing should refer to the 1975 financial statements as of December 31, 1974 and December 31, 1973, there is no evidence that these accounts were presented by Defendants as auditors during 1977 for the purpose of negotiation with the prospective purchaser. The evidence was that the plaintiffs received these bills from Mrs. O'Sullivan without the intervention of any of the defendants. As of this writing, I am not convinced, based on the evidence I have heard, that the defendants, as auditors, contemplated selling the company. And in the circumstances of this case, I do not think it has been established that the defendants had any duty of care in preparing accounts for those years, either in relation to plaintiffs as potential buyers*388 or in relation to interested buyers in general.

At this point it is appropriate to refer in general to the professional duties of the auditor in matters of accounting. The evidence for the plaintiffs, which I accept and which has not actually been disputed, was prepared by Mr. Alan Maloney, an independent chartered accountant who has been in practice since 1963 and has acted for Messrs. Craig Gardner from 1965 and taught accounting at University College Dublin for a number of years.

He described the essential characteristics of an audit as "preparing an independent report to the shareholders of the financial statements prepared by the directors". two or three years earlier. It would then determine what arrangements the entity has in place that would result in the preparation of reliable financial statements and make any examination and review of those arrangements it deems appropriate to determine their reliability. He then compared the actual draft financial statements prepared by the directors with the agreements that led to them, ie the company's accounting records. And finally, having determined (a) that the Company has made the proper arrangements resulting in the correct accounts, (b) that the system is reliable through testing, and (c) the accounts have been compared to the results of that system, I would conduct a general assessment of the draft accounts to ensure that they present an appropriate picture in relation to the income statement and balance sheet.

Of course, an auditor cannot examine all of the Company's transactions during any given accounting period. They are concerned that an appropriate and adequate system is in place to record transactions, that such transactions are properly authorized and that Company assets are properly maintained and protected.

Coming from these general considerations to the specific issue of inventory, Mr. Moloney said the inventory was a physical census and recorded as a list. He described the auditor's duty and concern, first, to determine what arrangements the entity had in place to maintain an accurate inventory and, second, to test those arrangements. It was clearly not one of the auditor's duties to carry out the inventory. That was up to the company to do. The auditor's duty was to verify that the customer was operational and to make the necessary arrangements for the correct counting of inventories with a view to their later valuation. One way for the auditor to fulfill this duty was to attend the inventory and observe during the inventory.

Mister. Maloney then described the type of arrangement that an inventory would constitute. They would, he said, include a single count of all inventory to ensure whatever was inventory was also recorded as a purchase on the company's books. An important feature of this was also the identification of low-quality stocks that would hurt their value. After taking inventory, the next step was to ensure that the inventory counted was converted into value through pricing. This was also a feature of the company. The auditor's duty was simply to verify that the shares were valued according to an acceptable valuation principle, usually at the lower of cost 389* or market value.

At the end of the inventory, the auditor's duty was to assess whether he could reasonably rely on the client's inventory and whether the value of the shares appeared relevant to the company's balance sheet and results. If for some reason you decide that you cannot rely on the inventory, you can try other means to get a satisfactory position rating, e.g. At the end of the years, try to check the customer's inventory numbers. However, if you could not ensure the reliability of the figures resulting from the customer's inventory, you should qualify the auditor's report.

Mister. During his statement, Maloney was asked about the case where a chartered accountant was unable to attend the probate audit. His response was that there was no professional standard or practice statement for the auditor to look to when taking stock. It was his choice to participate or not. It has been recognized in the industry and recommended in the mission statement that inventory tracking is the best way to verify inventory adequacy. But the auditor as a professional can decide for himself what he would do in the circumstances of the individual case.

Having determined that there was a duty of care in relation to the 1975 and 1976 financial statements, I must next consider whether Mr. McHugh, as the Company's auditor, pleaded negligence in the audit of the Company's financial statements guilty for these years.

Plaintiff's salient point was that, due to the negligence of defendants, and particularly Mr. McHugh, the Company's audited financial statements for the years ended December 31, 1973 through December 31, 1976 were false; that they misreported, i.e. they underestimated the company's trading inventory during those years, which in turn led to a misleading overstatement of trading profit or understatement of trading losses during those years. This case was formulated in two ways. First, it was alleged that, in violation of Mr. McHugh, no serious inventory checks were conducted in any year. And second, in order to determine that the stock numbers in the audited financial statements for each of those years were incorrect, an exercise was conducted by the plaintiff's accountant in which he attempted to estimate, or calculate, the true stock values ​​for each year. . Condition. I will consider each of these points individually.

The main evidence relating to them was provided by Mr. Kenneth McQuillan, a practicing chartered accountant for over 30 years. Their evidence was that a review of the auditor's working papers for each year did not reveal that any year other than 1977 was a physical inventory survey or a serious inventory audit. There were no working papers showing the pricing policy. , the basis for rating the stocks, or how that rating was prepared. There were no comments about the stock or if they were in good condition. In no year has there been an audit report rating that would inform a person reading the financial statements that the stock may not have been properly audited or rated. The Institute of Public Accountants has issued statements and recommendations for action that set out the required professional standards. These were: Audit Statement, K1-U9, (Inventory Assistance), issued 1968; Audit Statement, K1-U11 (Inventory and Work in Progress), issued 1969; and Statement of Standard Accounting Practices, GP (Inventories and Work in Process), effective January 1, 1976.

According to Mr. McQuillan, which to my knowledge was based on a review of audit working papers from 1973 through 1977, the recommendations and professional standards set forth in these statements were not followed or complied with in any year through the 1976 financial statements.

Defendants' defense of these allegations of failure to properly audit the Company's financial statements and of inaccuracy and negligence in relation to the audited financial statements necessarily depends in large part on Mr. Stan McHugh, the fourth defendant, who was the auditor of Royal Tara China Ltd in all the years in question and was responsible for auditing the disputed accounts. I turn now to examining his evidence.

Mister. McHugh trained as a chartered accountant in 1936 and practiced from 1937 until his retirement in 1979. He practiced most of that time in his own firm as Kenny McHugh until that firm merged with Messrs. in 1971. Haughey. Boland, whose partners are the defendants. He is now 73 years old. He knew Mr. Kerry O'Sullvan and remained on good terms with him for many years. In the early years of the last war, Mr. O'Sullivan was making earthenware in Dublin. In 1953 Royal Tara became China Ltd and Mr McHugh became an accountant until 1977 when the company was sold. He has personally audited the company's accounts over the years, doing all the work himself and never having an audit team present. After a few years, in the late 1950s, he became a director of the company, but he says he was never closely involved with the management business and was actually a director in name only. He described Mr. Kerry O'Sullivan as an experienced potter who knew his business from the start. For a time he was an employee of Arklow Pottery. He described it as a "one man show" and how he handles the production himself and as the sole manager and director of sales and marketing. It was Mr. O'Sullivan usually organizes a trade show in May or June to showcase their wares to Dublin, Limerick and Cork's largest wholesalers and retailers once a year in Dublin and Galway. In Dublin, this exhibition was held for a week at the Central Hotel or the Gresham Hotel. Mister. O'Sullivan took orders for his products. Besides, he didn't hire any salespeople. After the show he returned to Galway with a fairly full order book and planned production for the next few months to fill those orders. He had a policy of not piling up inventory before receiving orders, and by the end of the fiscal year, which was the end of the calendar year, he intended to liquidate all of the company's inventory. He didn't want to build up an inventory and write an overdraft facility at the bank. Factory workers were given a week's holiday over Christmas and the remainder of the holiday in July, around the time of the Galway races. As a result of this policy, inventories at the Company's fiscal year-end *391 were at their lowest in December. Mr. McHugh expressed his opinion that Mr. O'Sullivan's conducting therefore tended to inflate the stock-to-turn ratio figure.

Mister. McHugh described how Mr. O'Sullivan began manufacturing in one room in Dublin and grew into a business occupying a purpose built factory in Galway. When he was in good health he was very strong and the business was profitable. 1969 Mr. O'Sullivan became seriously ill and had a kidney removed. He recovered very well from that. About a year before her death in March 1977, she was not feeling very well and was hospitalized at times. In the last two years it had lost its vitality. During this time, when it failed or was out of business, its control was reduced. He spent less and less time in the factory. Sales were badly affected. Inventories tended to build up and productivity fell.

Since 1955 Mr. Sean Keane worked as the company's accountant. She worked as a typist in the office and was responsible for getting out all the company's books and taking care of the salaries.

The annual audit of the company usually took place in March or April. McHugh says he has been to Galway every year and usually worked there for two or three days. Mister. Keane would produce draft bills prepared in great detail. He would have all the ledgers and ledgers done. Mister. McHugh described that the company has a very complete set of accounting books that are perfectly adequate. Rarely had he seen such a well-preserved collection of books. They were the sole responsibility of Mr. Keane and Mr. O'Sullivan had no part in them. Mister. In fact, McHugh said he had not supported a physical inventory on December 31 of any year since the company was founded in 1953. O'Sullivan for talking to him and for the action lists he receives each year. Mister. O'Sullivan assured him that he personally conducted the inventory, that the inventory existed, that it had been measured, quantified and valued, and believe that Mr. O'Sullivan acted reasonably and fairly. He believed that an accountant had a right to trust the firm's trusted employees, and Mr. O'Sullivan was an employee and major shareholder of that firm. McHugh said he didn't think it was necessary to attend the estate in person because of the owner, Mr. O'Sullivan, being in full control and his policy of reducing inventories to their lowest levels by the end of the year . When asked about the shares, he said that in his opinion they were of a size that was not relevant to the company's balance sheet or sales.

McHugh said the shares are, or can be determined from, the nominal book. In this book all material purchases of the year are listed. At the end of each year the value of the shares was expressed in money to close the account. The account also showed the materials consumed, and a record of items completed or inventory was kept in a checking account. Inventory numbers in the ledger were entered from inventory sheets created in the inventory. Mister. McHugh said the nominal ledger contained a summary of all of the company's transactions for 392* per year and described it as one of the most closely guarded ledgers he had ever encountered in his experience as an accountant. He said if he went to Galway every year for the exam he would tell Mr. O'Sullivan about the stock in December and Mr. O'Sullivan or Mr. . They were prepared by Mr. O'Sullivan and described each type of stock item and the quantities stated. He examined these share sheets but left them at the Society's offices in Galway and took no copies with him. However, he received and carried with him a summary sheet for each year, which was a summary of a series of detailed inventory sheets for that year, and this was sufficient for his work requirements. Mister. McHugh then said that when he receives the inventory lists, he will test the purchases recorded in the period and the period immediately after year-end. And kept track of after-sales records to track out-of-stock for customers from time to time. She denied taking reasonable steps to verify the accuracy of the stock figures.

Regarding the 1976 financial statements, he agreed that there were no records or evidence of the audit program for that year, but said the same program had been carried out in previous years. He said the working papers contained a record of the actual inventory breakdown and that this was a summary of the detailed inventory listings.

In the 1976 bill, Mr. Keane noted the measures as "assessed by the manager". The audit was conducted in April 1977 after Mr. O'Sullivan actually rated the stock, but after 23 years of experience with the company he thought he (Mr. McHugh) could give an opinion on the validity of the stock numbers. Regarding the items marked as "estimated" in the draft invoices, he said he could go back to the original inventory sheets and come to a non-estimate conclusion about quality and value.

It is appropriate at this point to express my assessment of Mr. McHugh as a witness. Mr. McHugh's evidence relates in part to matters for which he was the only one able to provide direct evidence of what happened or what he did. At other points it was possible to consider your testimony together with the testimonies of other witnesses who are equally qualified to testify, or in relation to available examination papers. Having considered your conduct as a witness and your testimony, I believe you to be a true and reasonably diligent witness who, as far as I can ascertain, is not prone to exaggeration or distortion. In several instances he openly admitted facts very contrary to his case and did not attempt to conceal them, although he gave reasons or explanations to justify his behavior. He is a witness whose testimony is generally recognized as true and reliable.

I now turn to consider whether the plaintiffs have established that Mr. McHugh failed to show the care and skill which a skilled and reasonably diligent accountant should exercise, firstly in relation to the inventory for the years 1975 and 1976, and secondly, by failing to carry out a proper investigation or verification of the information contained therein on which the accounts for those years were based.


There was actually no dispute between the parties about the duties of an accountant in relation to inventory. Both have accepted professional opinions from the Institute for Public Accountants. To do this, the auditor must determine what arrangements a company has made for an accurate inventory and provide evidence of this. One way in which the auditor could fulfill this obligation, and one that was recommended, was to participate in the inventory and to observe the procedures followed. Mister. Alan Maloney said there is no professional standard or practice that requires the presence of an auditor. You have the choice to participate or not. It has been considered and recommended in the industry that inventory support is the best way to test or verify the adequacy of an organization's server practices. But the accountant as a professional could decide for himself what to do in the circumstances of the individual case. At the end of the inventory, the auditor had to assess whether he could reasonably rely on the company's balance sheet and earnings-relevant inventories.

In the present case, in the inventory and audit of the 1975 and 1976 financial statements, Mr. McHugh had audited the company's accounts for over 20 years. He knew Mr. Kerry O'Sullivan and had discussed accounts and matters such as estates with him on many occasions. He was familiar with the way Mr. O'Sullivan ran the business and knew that he personally did the accounting. He had many years of experience with the company's bookkeeping and the books kept. He held her in high esteem, and so did Mr. Keane, the company secretary. He said that he believed in Mr. O'Sullivan and in Mr. Keane. But he admitted that he did not take stock in 1975, 1976, or any year before 1954 and that of Mr. O'Sullivan.

Regarding the accounts for 1976, he said he didn't know if Mr. O'Sullivan had done the accounting or whoever. Mister. O'Sullivan was unable at the time and may not have taken stock. When he came for the exam, he was given worksheets with numbers that had the word "estimate" written on the front. But he said it was about values ​​and was pleased that a balance had been drawn up. He reviewed the sales and purchase records for the following weeks and was satisfied with the consistency of the inventory sheet numbers and the inventory numbers in the audited accounts. Given all the evidence on this point, did Mr. McHugh fail to exercise due diligence regarding the probate, particularly by not appearing at the probate in 1975 or 1976?

If those two years were exceptional, and I've attended, observed, and been content in some previous years, it would be some time before the simple fact of not participating in those two years led to the conclusion that there was a lack of diligence . But 1975 and 1976 followed 20 years earlier in which he never took part in the probate audit. I know that professional standards have tended to become more demanding over the past 40 or 50 years. 1975 and 1976 Mr. McHugh was nearing the end of his career and retirement *394 and his conduct in the probate process in recent years may have been considered acceptable. But I have come to the conclusion that Mr. McHugh failed to exercise due diligence by not attending or observing the inventory.

The additional allegation made by the plaintiffs is that Mr. McHugh failed to conduct a proper investigation or verification of the information on which the accounts for those years were based. I regard this as a different and greater allegation than failure to participate in the probate audit and is related by plaintiffs to the allegation that the auditor's working papers for 1975 and 1976 and for prior years were incomplete and incomplete. and that others that one would expect to be available simply weren't there. Only one examination program was prepared for one year between 1973 and 1976, and records of examination work done in most of those years were scant and incomplete or missing. Indeed, the fact that such documents are erroneous, incomplete or missing is cited as evidence that the required audit work was not performed.

Mister. McHugh supported these claims, first, by saying that if an auditor conducted the audit in person without the assistance of employees, and it was the company's director who signed the certificate and audit report, there was no need for the auditor to edit a narrative Create a record of work done. Second, he positively stated that for each year he examined the company's books, particularly 1975 and 1976, there were inventory sheets listing all factory inventories counted and that he cross-checked the inventory numbers against the book. Order, the nominal book and subsequent sales records in the sales book.

Perhaps it should also be remembered that the 1975 and 1976 accounts were audited more than eight years ago and six or seven years before the plenary session for this action was convened, and the papers may have been lost. The parties agreed that there is no professional standard requiring retention of a worker's ID card for any period of time.

In relation to all of these matters, Mr. McHugh has been subjected to extensive questioning. In my opinion, having examined all the material evidence, the allegation of failure to examine or verify the information on which the 1975 and 1976 financial statements were based was not raised. I accept Mr. McHugh's evidence and I am not entirely convinced that the incompleteness of the audit working papers demonstrates that adequate audit work was not done.

There were two other allegations in the claim statement that are worth addressing here. First, it is said that stock levels at Royal Tara China Ltd have traditionally had two main characteristics, namely that many items have been removed from stock entirely and many other items have been listed at a very small fraction of their price or value. Second, these undervalued inventories would have been built into the company's operations in 1975, 1974 and earlier in 1975 and 1976 to affect profits. I don't think any of these questions *395 have been supported by the evidence.

There is another allegation made by the plaintiffs, giving details of their claim in the Complaint by letter dated January 25, 1984, to which I must now refer. It is alleged that Mr. Sean McHugh and Mr. Paul Carty falsely told Mr. Murray and Mr. Murphy at meetings prior to the November 4, 1977 agreement that the Company's business was and has always been very sound. As proof, Mr. Murray and Mr. Murphy said Mr. McHugh and Mr. Cartyles had expressed something quite different, namely that business was good and the O'Sullivans were doing very well. Details of the terms of these latest statements were never disclosed to the defendants before the trial. I am not satisfied that Mr. Murray and Mr. Murphy are accurate or reliable as to these statements made by Mr. McHugh or by Mr. Carty on the alleged occasions. In addition, I am not entirely satisfied that, if such statements were made, the plaintiffs relied on them in their decision to enter into the purchase agreement.

Another allegation by the plaintiffs is that the defendants did not prepare the balance sheet and accounts for the eleven months ended November 30, 1977 on the same basis as the accounts for previous years, as was necessary for the defendants to know . pursuant to the terms of clause 2(5) of the Plaintiffs' Agreement with the Sellers. The plaintiffs accepted that the accounts for the eleven months ended November 30, 1977 were true and accurate. However, since the accounts for 1976 and for previous years were erroneous and deficient in all respects alleged by the plaintiffs, it could not be claimed that the balance sheet and accounts for 1977 were prepared in accordance with accounting regulations. . supplier practice or on the same basis as the audits of previous years. I have previously expressed my opinion on these allegations in relation to the 1976 accounts and I do not believe that the allegation made in relation to the 1977 accounts has been substantiated.

Given that Mr. McHugh was guilty of negligence and of failing to comply with the standard of care recommended and maintained by the profession, I now turn to examine whether the plaintiffs made their allegation that the stock numbers in the audited financial statements for 1975 and 1976 were the only years In my opinion, false and misleading and resulted in false profits or losses.

Plaintiff's argument in this regard relies primarily on Mr. McQuillan. It is understandable that as of 1978 there was no way for you to directly verify the 1975 and 1976 inventory numbers by counting, or to directly verify the values ​​of those inventories. He was forced to resort to other methods. The starting point was the business books of the company: the purchase book, the sales book, the nominal book, the working papers available from the auditors and the audited annual financial statements. The exercises you did were indeed directed to the stock numbers for each of the years 1973 through 1976, and I refer to your statement on those years, although I'm only interested in the numbers for 1975 and 1976. McQuillan said he developed two independent *396 methods to recalculate inventory values ​​for those years.

The first method, which he calls the calculated method, was to take the total purchases of each commodity recorded in the company's purchase ledger for each year and calculate the average monthly purchases for that year, dividing the grand total of each commodity press by twelve Its calculation is then based on the following assumptions: (a) that the average monthly purchases of each product can be equated to the average monthly usage of that product; (b) that there are no opening balances at the beginning of the financial year; (c) no inventory is consumed during the month of purchase; and (d) the purchase is made on the date of the recorded purchase invoice.

During this exercise, Mr. McQuillan tabulated each year's holdings as far as he could reconstruct them from the books; he had the numbers on the controversial papers which Mr. Sean Keane had prepared; and prepared summaries of purchase amounts recorded in the purchase ledger.

Using the information available from these sources, he calculated the shares he believed should be in the company in each of the years concerned. He concluded that inventories for all years 1973 through 1975 were underestimated and 1976 inventories were slightly overstated, which inflated the earnings figures reported in the 1976 financial statements. McQuillan reported profits and losses for those years as follows. In 1974 the accounts showed a loss of £8,945. According to his calculations, the loss should have been £12,708. In 1975 the accounts made a trading profit of £1,940. By his calculations there should have been a proven loss of £366. In 1976 the accounts showed a trading profit of £949 while by his calculations they should have shown a loss of £15,843. From these calculated numbers he saw a completely different trend. He said that if he had seen the audited accounts from 1973 to 1976 before the company was sold, he would not have been impressed with the gains, but he would not have sounded the alarm like the losses.

During interrogation, Mr. McQuillan admitted that when he conducted the exercise, he did not consistently use the calculated method of estimating stock numbers. In some cases, it gave obviously incorrect results when used. In those cases he didn't use it, but took an average value that he felt was appropriate under the circumstances. He agreed that it was a method that in some cases could lead to obviously erroneous results, he disagreed that the calculation method was highly unreliable unless it was applied mechanically. By that I understood him to mean that in some cases where he got what he thought was an incorrect result, he didn't use that method of calculation. He admitted that in those cases he used whatever numbers he thought appropriate or reasonable under the circumstances. He agreed that this method of calculation was not a recognized method of examining stocks and said that he would not issue a certification that the financial statements give a true and fair view of the company's position based on this method.

Mister. Alan Maloney, testifying on behalf of the plaintiffs, said Mr. McQuillan appeared to be a reasonably practical attempt at estimating inventories. It accepted the *397 criticisms made by the defendants, but did not consider that they were Mr. McQuillan. The assumptions of Mr. McQuillan were fair, but not quite right. Overall, he described it as fairly accurate in his assessment.

Mister. Michael Norris, one of the defendants, in his testimony criticized the assumptions on which Mr. McQuillan continued. He described them as artificial and said a variety of factors could affect these assumptions. I understand that you are questioning the assumption that average monthly usage can be offset by average monthly purchases. He said that usage would be influenced and dependent on customer orders and production itself would vary from month to month, and his conclusion was that this method of calculation, as a criticism of the inventory figures in Mr. McQuillan's reports, did not seem to be a reliable method adapted to provide a critique of these inventory figures.

Having reviewed all of the evidence relating to this method presented by Mr. McQuillan as a critic of the inventory figures in the 1975 and 1976 audited accounts, I must decide whether he provides a sufficiently reliable standard on which to base an assessment relating to the audited accounts can. There are at least two aspects that cause me concern and doubt.

First, it seems to me that the assumptions on which it is based make it a very rough and imprecise standard. The assumptions on which it is based appear to have little or no concordance with the style and practice of the business which the evidence shows Mr. O'Sullivan's. They seem to be overlooking their make-to-order practice, keeping inventory levels as low as possible during the year and reducing them to a minimum by the end of the year.

Second, Mr. McQuillan admits that this method of calculation sometimes gave figures that were clearly wrong or impossible, and that in such cases he made his own estimate of the specific number of resource reserves that he thought fit and gave up. Incorrectly calculated value. I do not believe that I have used Mr. McQuillan's calculated method as a reliable standard for determining whether the inventory figures in the audited 1975 and 1976 financial statements are incorrect or inaccurate.

Mr. McQuillan's second method used a calculated value called inventory/sales or inventory/sales ratio to determine that the inventory figures in the audited financial statements for 1975 and 1976 were incorrect. It has been claimed that this is the ratio of the value of inventories at the end of a company's fiscal year to total sales for that year. Mister. McQuillan used the stock-to-turn ratio value in this way. First, he referred to the published statistics on the stock-to-sales ratio for companies manufacturing porcelain in the UK. These gave stock-to-sales ratios for companies like Wedgewood ranging from 2.7 in 1979 to 3.5 in 1984 and for Aynesley ranging from 3.4 in 1979 to 2.9 in 1982. McQuillan thought that was normal, which was what he would expect. He said*398 that in his experience with companies in the manufacturing industry, the maximum inventory/sales ratio was on the order of four. A ratio of three was good, a ratio of six felt like it wasn't really possible.

He then took the year-end shares and annual turnover or sales figures shown in Royal Tara Ltd's audited accounts over a number of years and calculated the share/sales ratios for those years as follows:

1971 stock/sales ratio of 36

1972 stock/sales ratio of 42

1973 stock/sales ratio of 28

1974 stock/sales ratio of 15

1975 stock/sales ratio of 12

1976 inventory/sales ratio of 5.

Mister. McQuillan considered these figures absurdly high and concluded that the inventory figures in the audited accounts for those years were incorrect.

He said that the 1971 financial statements for eleven months ended November 30 allowed him to calculate a stock/sales ratio of 6. He then decided to use this ratio of 6 and calculate Royal Tara China Ltd's holdings for each of the years 1976 to 1971 to the sales figures reported in the audited accounts for each of those years. And the inventory figures so calculated, he claimed, showed that the inventory figures in the audited financial statements for those years were incorrect.

On cross-examination, he was first asked whether the published UK industry figures referred to manufacturing companies, which were giants in the industry, but even the smaller registered companies were doing business on a very different scale from Royal Tara China. Ltd and were not comparable. Mister. McQuillan accepted that they were all much larger but disagreed that this would make any comparison between them unfair and unreliable. Defendants also argued that a company like Royal Tara China Ltd could choose its financial year-end, choose a time when business was dormant and the stock was at its lowest, and that the balance sheet numbers at the end of the year were correct not necessarily consistent with the average of the values ​​over the year. Mister. McQuillan accepted that these claims were correct. However, he did not want to accept that smaller companies are more likely to make significant changes from one year to the next.

Regarding the stock-to-sales ratios, Mr. Michael Norris said they were influenced by the nature of the underlying business, economic and business factors such as market demand and management style or requirements. He considered the latter to be more important than the type of industry. During the recession, when customers knew they would have no problem getting supplies, there was a tendency to stock up with suppliers and place orders when needed. When business was good and demand increased, the opposite was true. Here this company, Royal Tara China Ltd, was small; O'Sullivan knew his customers well and his management style was to manufacture or produce when orders were received and to change stock once *399 orders were completed and available for delivery and this would result in stock being at finished goods left behind. at least. He said that this company was a small company whose fiscal year ended December 31, during which time the company was closed for public holidays and the management policy and practice was that any inventory that might be changed was changed prior to this year's financial statements would and that this was the case would directly affect the inventory/sales ratio. He also said that in his experience, the inventory-to-turnover ratio was not used as a basis for an audit opinion. It was usually used as an indicative factor showing what a company's business position was.

I considered the evidence relating to this second method, presented by Mr. McQuillan as verifying the accuracy of the audited inventory figures in Royal Tara China Ltd.'s accounts. arbitrarily. in a sense; other than an amount which it considers acceptable as reflected in the audited accounts for the eleven months ended November 30, 1977. This was the year that Mr. O'Sullivan passed away and there are several factors that may make him uncharacteristic of previous years. However, Mr. McQuillan used this stock ratio of six to recalculate the 1975 and 1976 stock numbers to use the stock numbers so calculated as a yardstick for judging that the stock values ​​recorded in the audited accounts are incorrect. I do not believe this to be a reliable basis for making such a judgment and, using this method of calculation, I am not at all convinced that the stock values ​​in the audited 1975 and 1976 financial statements are incorrect.

In conclusion, therefore, I believe that the Plaintiffs, in examining the Plaintiffs' allegation that the share numbers in the audited financial statements for those years were incorrectly reported and therefore resulted in a misleading and incorrect calculation of profits and losses for those years, that the Plaintiffs have failed to meet the burden of proof placed on them to prove their case against the odds.

In the circumstances, I do not need to determine whether plaintiffs relied on the disputed 1975 and 1976 audited account numbers in concluding the November 4, 1977 settlement with the vendors. I don't need to consider any damage issue either.

The author's claim fails and is dismissed.

Haughey gegen J & E Davy t/a Davy

[2014] Judgment IEHC 206 by Judge Peter Charleton, delivered on April 10, 2014
1. James Haughey, the author, was born on July 5, 1985 and is 28 years old today. Both parents are dead; his mother since 1998 and his father since 2002. He has no brothers or sisters. He also has no close relatives or dedicated friends to look after his interests. When he was 8 years old, he had a stroke. Two years later he suffered a serious stroke. He was severely affected, losing mobility and having trouble swallowing. Her late father, a doctor, stopped working and, like her late mother, became involved in her rehabilitation. Considerable progress has been made. The family moved from Ulster to Dublin and James Haughey first attended Saint Michael's College on Aylesbury Road and was later sent by his father to board at Clongowes Wood College in County Kildare. While he was at this school, his father died. His colleagues showed him considerable friendship; although much of it appears to have been formal and administered by the Jesuit priests who ran the school. These priests were also determined to look after his interests and ensure that when he left school he had some success on his behalf. So he was appointed director of the debating club, a position similar to the one he held, for whatever reason, at his previous school. He went to University College Galway and fought his way to a law degree.

2. Defendant J&E Davy is a brokerage firm. His documents are cited as writings. The company has considerable experience in stocks and equities. It advises clients on the type of investment that is right for them because company representatives know the potential client and what their goals, financial resources and acumen are. Davy can simply be used as an agency to buy and sell stocks and derivatives without taking any responsibility as all decisions are made by the client without any involvement from the company. Davy can also take on a client's sum of money or investment pool and can use his undisputed experience to invest in financial instruments at his own discretion. Between these two extremes lies the Advisory Account, where Davy advises clients on the appropriate course, but where the client is free to accept or reject that advice. This is the type of account James Haughey has been keeping with Davy since August 25, 2005, a month after his 20th birthday. By registering for this account, James Haughey has also agreed to pay applicable fees for this service to Davy.

3. During the many long days of this process there was considerable debate about the skill, intelligence and cunning of James Haughey and how he would appear to his advisers. There was no debate about Davy's abilities. It is accepted by all that the company is excellent and capable. The type of investment James Haughey committed to Davy in highly competitive circumstances was contracts for difference. It's not just simply buying and selling stocks and shares. With round numbers for now, James Haughey would say he made $2 million and lost $3.5 million under Davy's tutelage, paying the company almost $400,000 in commissions and fees for its services. Damages of around 2 million euros are being demanded. With that in mind, he claims Davy was negligent and broke the contract. Davy replies that the bad choices were made by author James Haughey and that he was careful and prudent in his legal, contractual and advisory duties and properly disposed of his experiences. In short, the author was a fool. In addition, Davy's investment approach was seen as beyond reproach, as were the checks and balances inherent in his client's organization when dealing with stockbrokers. Paradoxically, the most serious criticism of Davy's structures related to her checks and balances came most strongly from Davy's senior portfolio manager, who was closest to these events.

4. Given that this case depends entirely on the facts, and that most of this difficult court has been devoted to a careful and repeated analysis of the character and qualities of James Haughey, it is fitting to recall the function of a tribunal in to remember questions in fact. A court must hear all that is relevant, compare statements and documents with all evidence, use prudence and common sense in deciding all matters, and watch and hear every witness carefully, bearing in mind that the burden of proof rests with the court and the plaintiff. The final question is what the court will accept and what liability may arise from facts that have proven probable. Although we remember the admonition that "there is no art in finding the mind's construction in the face," in this case behavior and attitude proved helpful in determining where the probability of truth lay. The court observed everything and ignored the distractions. while dr Damien Mohan, reviewing James Haughey for Davy in his capacity as a psychiatrist, characterized this case as investor regret, there are others who might feel regret in such a case, or it is argued that the complainant should feel regret: stockbrokers. None of these financial intermediaries were subjected to the rigorous testing that plaintiff James Haughey was subjected to. The court also considered all the falsehoods accused of James Haughey and what exaggerations and more accompanied his testimony when his interests could be furthered, and that shifting responsibility to others was sometimes the answer when contested issues. However, it should be noted that the plaintiff is not the only witness that required considerable due diligence. There was so much to question and even more about the defense testimony.

5. As already mentioned, James Haughey is the center of attention in this case. This lawsuit was about him and not about anyone else who had lost financial products with this or any other financial services company. Therefore, the following findings of fact are made by the Court in relation to James Haughey's abilities.
James Haughey
6. James Haughey is not how Davy wished to characterize him during this hearing, but neither is he a person of perfect intellectual, physical and spiritual health. Furthermore, this predicament is apparent to anyone who interacts with him in anything but the briefest of encounters. His manner of speaking, choice of words, and posture made it clear to any observer of average perceptiveness that his condition was markedly different from that of an average man of his age. Has a noticeable speech impediment; speaks in a very unusual high pitched nasal tone; uses hands when speaking unnaturally; his choice of words is sometimes inappropriate; Your reasoning can be circular; their knowledge of financial products, particularly contracts for difference, is even now very poor; and he reacts emotionally to things that affect him far more than the vast majority of Witnesses. It would be clear to any objective observer that he was severely physically beaten. Any ordinary observer would be put to the test. He also deeply resents Davy. All of the factual findings in this case about him and other witnesses are made despite the fact that he went to work for this company in late 2010/early 2011.

7. In this case, an unusually large number of expert opinions and expert opinions were analysed. The court heard all this and read the relevant documentation. Davy's witnesses presented evidence that the plaintiff faked it during the psychiatric and psychological evaluation and that the test results were structured in such a way that James Haughey was worse off than he really was. The court takes all of this into account. During an investigation, a church card and four boxes of matches were taken from James Haughey for no apparent reason. He was asked if he wanted to portray himself as a very vulnerable person. The corresponding commemorative card was for his late mother and is a very personal item; something of the sort that many people might wear in a less obvious way. The matchboxes were a springboard for cross-examination, which led to a testimony on the stand that he intended to take his own life if he lost the case. The Court cannot take this into account. However, their desperation is real. The doctor. Damien Mohan, a consulting forensic psychiatrist, found her vulnerability real and believed she was likely to follow professional advice. He considered suicide a very real risk. This proof is accepted. Of all the witnesses, Dr. Mohan most bluntly described some of James Haughey's responses during the interview as being deliberately approximated for secondary gain. Apparently it's something called Ganser Syndrome, but whatever it is, it's at least as familiar to judges as it is to psychiatrists. Included in the mix of opinions expressed by psychiatrists and testing psychologists on the subject of simulation, non-cooperation and cheating must be the apparent resentment of Davy and all of Davy's emanations that were evident in James Haughey's testimony. There's no easy answer to why certain pieces of evidence don't sit well with others, but the court is unwilling to accept simple fraud as a simple explanation.

8. Many of the tests showed alarming deterioration. Dr. Simone Carton spent five hours with James Haughey on January 22, 2014. Her assessment was thorough and compassionate. Good verbal skills and good verbal conceptual thinking noted by other experts; although those scores were lower than one might expect from someone with his purported legal qualifications. Probably, as one expert said, this verbal skill carried him through college. She found him engaging with her and adequate to provide much information, although he showed more emotion than expected on some subjects. His approach was discernible with considerable sensitivity and should produce reliable results. She described him as obsessed with cognitive skills for financial transactions, and described Davy's written application to attend a graduate program as comprehensive, selective, verbose, detailed, and competent. However, the cognitive abilities for financial transactions can be compared to a very high mountain, ranging from simple purchases at the bottom of the mountain to more dangerous and challenging things on the climb. However, James Haughey scored well below the low average on many of the tests, including new learning skills, executive functioning, verbal fluency, and effort. These results do not contradict those of Dr. Niall Pender, who found he underperformed on many tests and story collections, but far underperformed on complex visual design. He described him as having trouble getting information quickly and solving problems strategically. The heavier the load, he said, the tighter the deadline and the more complex the task, the worse James Haughey performed. This is a reasonable and probable opinion. Professor Peter Kelly, a specialist in stroke medicine, described James Haughey as having very mild dysarthria and very mild impairment of arm function. He judged her gait to be reasonably symmetrical and saw no evidence of a limitation in independent decision-making. He declined to express any views on complex decision making. The Court believes that decisions on contracts for difference require a high level of intellectual prowess and require complex decision-making well beyond the intellectual abilities of James Haughey. The few bright spots in this case came when highly intelligent and qualified medical experts read excerpts from Davy's papers and expert reports describing how these tools work and what the financial consequences can be. It is clear that everyone who asked these questions was entirely at sea without navigational aids. Financial expert Paul Keenan, appointed by Davy, said it was possible to explain these instruments and the implications of investing in them in the comfort of an hour. Nothing in the course of the case suggests that this could be true for a person of average to high intelligence, let alone a person with a disability. This opinion is not accepted.

9. In this case there are two results that no one can dispute. When James Haughey decided to seek employment with Davy in late 2010 as part of a postgraduate program designed to give him a deeper dive into the world of stock trading for a limited period of time, he had to pass two exams. There was significant inaccuracy on the part of Davy as to the nature of these tests, and persistence was required before information emerged as to what they were intended to indicate. It turns out they are general intelligence tests that can be applied to any demographic to assess their overall mental agility skills. There's no doubt that James Haughey wanted to get a job. There's also no doubt that for some reason he saw Davy as a place to work. He overestimated his abilities. In each of the tests she was below the 13th percentile for the general Irish population. Mohan, who adamantly insisted on the false explanation of James Haughey's performance, was asked to use her meeting with him to gauge where she might be going on tests like this. The doctor. Mohan estimated he would be near the 50th percentile. To the extent that James Haughey's disability was considered mild or difficult to detect by some respected physicians, this is at odds with the court's decision. Part of the explanation for this is that while the medical witnesses were correct in describing James Haughey as making a good recovery from a major stroke, they are much more used to dealing with severely disabled people. may have been favorably related. compare it. This view does not apply to stockbrokers or others associated with James Haughey. There's the comparison to an ordinary businessman, and it's proven that James Haughey falls short.

10. With regard to education, the results are clear. James Haughey rated himself "Mediocre Certificate of Completion". He had extra time for civil service exams and dictated exam answers. When he applied to Davy, he misrepresented his results to improve them. Likewise, he was admitted to University College Galway not on results but on a commendable Disability Access Scheme. His academic record is alarming, with multiple fails and fails and exams that appear to be waived or postponed. There are no brilliant results to leaven this with signs of a real understanding of certain aspects of the law. He graduated with a third class honors degree. During the access program in Galway, a typist was assigned to transcribe his lectures and e-mailed him the typed notes. Because the fine movement of your hand cannot cope with fast writing: Even your signature would cause astonishment at a superficial inspection. His passage through the university was not easy. He was and is an outsider in many ways and must have felt the social superficiality of student life as a touchstone. A Roman Catholic priest helped and supported him during his student days. But perhaps after the tragic death of a friend who appears to have been a very decent person, and certainly as a result of the stresses of university life and housekeeping, he ended up in the psychiatric ward at the Hospital de la Galway University the second on May 6th 2007 There he was treated for depression. Like many people, he did not follow the outpatient treatment properly. This date is important, as is this event. Also important is the fact that James Haughey shows no sign of withholding personal details when speaking to people.

11. Aside from finding college a burden, she also found it very impractical to travel to manage these properties and deal with tenants, having inherited property from her parents. In his candidacy for Davy there is a description of the merits of the candidate, that is, the one who is fluent and adequate. Your late friend probably helped you with a generic job application template, and the exaggeration of your college and high school results is more likely to come from your desire to get at least one interview than from a slight indication of the value of As to Hype, which every Davy employee would give him. It is also likely that there was such incitement.
contracts for difference
12. A simple explanation of how Contracts for Difference works is found in a passage from the statement by Joe Motley, Clarus' financial specialist, who called on behalf of James Haughey. Lenders call these CFDs, although it should be noted that the Bank of Ireland recorded them as "CDF" on an unauthorized document. The court does not take this into account. As Joe Motley's analysis was presented to several witnesses, including medical experts, it is now quoted:

CFDs are quite simply a form of margin investing. When you take a position in a falling stock, you only have to contribute a portion of the underlying position's present value. The ratio typically ranges from 10% (four large-cap net stocks) to 20%. This money (the "margin") is deposited with the CFD broker... and the client earns a small interest rate on it. The Client is exposed to the full fluctuation in value of the underlying position and if the position value falls, the Client may have to pay more cash margin. The CFD broker finances the entire acquisition of the underlying position and the client pays a finance charge on that amount, which is the CFD broker's finance cost plus a fixed spread. The client also pays the trading commission for the trade, which is determined based on the underlying position size and not the margin size. CFDs can also be used to take a 'short' position on the stock (which would be difficult for a retail client). In this case, the client still has to deposit margin in the range of 10% to 20%, but now receives the funding fee on top of the position value. In this case, however, the fixed spread will be deducted from the funding fee. When stocks are “long” via CFDs, the dividend yield is credited to the client, but when they are “short” it is deducted from the value of their position. CFDs offer three incentives for clients interested in short-term speculative trading: they provide leverage for the client who wishes to take more risk with a given amount of money than would be possible through outright share purchases; facilitate "short" positions; Stamp duty on purchases (1.0% on Irish shares and 0.5% in the UK) is a key transaction for active cash traders and CFDs offer a way around this... The client's level of risk on a CFD position is increased determined by the size of the underlying position. It should also be noted that short positions are inherently more risky than long positions. In an unleveraged position, the long position cannot lose more than 100% of its opening value, while there is no theoretical limit to how much you can lose in a short position.
13. Although CFDs are advocated by companies that trade them as fully reputable, some examples might suggest to reasonable people that they are seriously risky. Nothing tangible is bought and is also borrowed at a small percentage of the cost to cover the apparent totality of an instrument. Take the short selling problem briefly mentioned by Joe Motley in the quote above but explained in much more detail in the evidence: A customer may decide to sell 10,000 positions in Ryanair shares for €6, paying 10% of the €60,000 value at a price of €6,000. According to the explanations prepared before the court, when someone enters a short CFD position, they are waiting for the stocks to fall. If the price of the Ryanair trip is €18, the customer would lose €174,000 on a €6,000 bet. Davy says this is highly unlikely, as are the other extreme swings that can be calculated in terms of short and long positions through a CFD purchase. This is taken into account. But in reality, CFDs fluctuate in a very wide and exaggerated range due to the lack of a concrete position, ie. The financial analysis so meticulously performed by John Harding ACA reveals very serious swings towards the end of the approximately two and a half year CFD trading cycle that is the subject of this case. The Court welcomes this objective analysis. It was very useful. This type of derivative is suitable for those who are willing to invest their money speculatively and have the necessary assets. By issuing only 10% of the share price, a client gets a position in a share but never buys the share itself. If something goes wrong with the denomination of the CFD, whether long or short, the client has nothing to sell. All the client has is leverage, part of which, a tenth or a fifth, has already been paid. The CFD provider must buy the shares or be in a position where the books are balanced by an equal number of speculators buying and selling an equal number of shares of the shares. When buying 10%, a 10% move means the entire stake is lost. Money can be lost in shares and money made in ownership over time, but you can lose your entire holding in a CFD in a much shorter period of time. Of course, a speculator who invests in these instruments can also make a huge profit in a short period of time, since once correctly predicted, the amount staked will be multiplied by 10 depending on the outcome of the stock's fluctuations. Position and where the position is dragged at the optimal time. Some taxes are also avoided.
14. On a long position, the 10% loss was seen by Paul Keenan, the expert on this Davy case, as a wake-up call for the investor. When you have multiple positions in multiple different stocks, or even just a few, or when you have one long position and multiple short positions, careful attention to detail is required to correctly interpret these red flags. . But there is another, even more serious disadvantage of trading CFD positions. Everyone knows that stocks can go up and down. All financial market charts, except for exceptional moments, show an upward or downward trend, but characterized by ups and downs in the wave that represents stock prices. If a position falls 10% from 10%, the bet is completely lost and jumping into a long position, as it is apparently called, or falling into a short position is a significant temptation for the investor. This is because once the action is exhausted by the action of the price of the action, there is nothing left to hold to await the anticipated countermove. To do this, another cash contribution must be offered for exercising the position. A series of money calls from an investor can be answered with even more money to hold a position that may be worthless but is considered profitable in the long run. In contrast, an investor owns a stake in a company over the long term by purchasing a stock. If the stock price goes up or down 10%, the investor keeps the price of a salable commodity at 90% or even 110%, but it's still a salable commodity. In reality, a person who enters into a CFD while holding a 10% interest is actually borrowing all the money the provider needs to buy the shares, which is the other 90%. People have a natural reluctance to borrow money, but this is essential to trading. When entering into a CFD position, it is not obvious and should be carefully explained that large sums are borrowed to participate: 90% at a 10% payout. Anyone buying a CFD should be aware that even though they are betting 10% of the price, they are paying interest to borrow the remaining 90% of the price. This borrowing is part of how the provider funds its position in the stock; that is, by charging an interest rate higher than the London Interbank Offered Rate, commonly abbreviated as "LIBOR". What came to light later in this case, something James Haughey was certainly unaware of, is that a percentage of that loan profit that the provider charges the customer is paid back by the provider to the broker, in this case Davy. , through any contracted private arrangement where the agent selects a specific provider. Portfolio managers testifying in this case do not appear to know the return, at least they say, and all that is known is that the court is likely to accept commitments from intermediaries and suppliers at a high level. If 10% or 20% of the price is staked, the provider receives an interest return on that small amount of money to the client through the broker, but this is much lower than the borrowing rate and barely offsets the cost of holding a CFD position. This was unknown to James Haughey.

15. Davy claims to have given James Haughey a high degree of explanation before signing a contract for difference. Among the documents used was one dated August 25, 2005 showing examples of paired transactions, trading fees and the resulting profit from a short position. It should be noted that there are no examples of losses resulting from a short position. The document purports to explain what a CFD is, describing it as "a product traded on margin that allows the client to trade shares long or short to reflect the performance of the underlying share." The document then lists as characteristic aspects of a contract for difference:

Go Long or Short: Trading CFDs is a convenient and profitable way to reflect the possible downsides of the underlying stock. You can open a short position on physical capital with a stockbroker; However, the cost of renewing this position at the end of each liquidation period would be very high.
Profitable: There is no stamp duty when trading CFDs as the client does not physically buy the shares. However, this means that the CFD holder usually has no voting rights or benefits.

Leverage – Holders of a long or short CFD position are required to deposit margin as collateral rather than pay the full underlying value of the share. The margin requirement is generally 20% of the total contract value. CFDs are available for technology and other volatile stocks, but they can earn a higher deposit margin.

Hedging Risk – A client may also take the opportunity to short a CFD if they own the underlying physical shares. You may believe the stock is likely to undergo a short-term bearish correction and would therefore short the CFD to protect its profits and possibly control the timing of UK capital gains or avoid the cost of selling and buying back an action.

Exhale – Hold your long or short position for as long as you like. A CFD has no settlement date. It is a permanent contract. We also offer CFD futures with fixed expiry dates; See page 12 for details. [No. Page 12]

Dividends: The holder of a CFD is entitled to 80% of the net dividend. However, a short customer would account for 100% of the gross dividend.

Company Shares - As a derivative position holder, you do not have the same rights as the holder of the underlying asset. However, Cantor CFDs will, to the extent possible, allow you to participate in any corporate actions that may occur.

Funding: A client holding a long CFD position is subject to overnight funding fees. Cantor CFDs funded the value of this trade and fees for this service are allocated at LIBOR. With Cantor CFDs in a short CFD position, the client is entitled to daily cashback.

Execution: CFDs are available on FTSE 350 stocks, UK small cap stocks and all US and European stocks. Stocks with very small market capitalization must be approved before trading. Trading CFDs is just like trading on the traditional exchange and confirmation is instant or upon order completion.

Commission: A small commission charged each time a contract is opened or closed.

Taxation: All gains from CFDs may be subject to the CGT (Capital Gains Tax), but losses may also be offset by the CGT.

16. None of this is easy to understand. It is certainly difficult to determine whether a Live Intelligence client has assimilated the information before making the decision to switch without a serious analysis of the nature of CFDs, together with proper explanations and possibly proper reviews during the learning process. Away from trading real stocks or stocks bought for cash, instead betting 10% or 20% of the stock's value on a contract for difference in hopes of leverage the margin up or down, giving a return as if a stock position were 100% would have been taken. According to the court, a CFD position can generally be booked in or out very quickly. So one wonders what Davy James Haughey explained about the nature of these instruments and how very quickly a large loss can be produced on them, whether by a short trade or a long trade, and then by adverse circumstances tempted to do so Keep position open in order to be able to react to further money demands.
First contact
17. James Haughey did not initially approach Davy to enter into stock difference agreements. The court accepts that while it heard of a CFD, it did not know what it was. He had dealt in stocks and shares before, but only of an ordinary nature. Davy presents this as evidence of experience and longevity in the business, but James Haughey was only two years past his 18th birthday. What happened, there is a strong conflict of evidence. At least the beginning of the decisive day of August 25, 2005 is indisputable.

18. Among the properties inherited by James Haughey were two rented houses in Drumcondra. He had to manage these properties himself and had no property manager or agency. That day he collected the rent and went to the Bank of Ireland in Drumcondra because an idea struck him. He remembered the family dinners at Jurys, the happy moments he spent there with his mother and father and decided to buy a piece from this hotel group in the form of Jurys Doyle, which is listed on the Irish Stock Exchange. Davy presents this as a wise financial decision. The court does not accept. The amount he had to spend reached 200,000 euros and although there was a stock dealing counter in some banks, that was over his limit. So the Bank of Ireland put him in a taxi and referred him to Davy, a company he hadn't previously been in contact with. He indicated the nature of his business and met Niall Kelly. They waited together about 10 minutes until Anthony Moyles was released. This is where the conflict of evidence begins.

19. Anthony Moyles describes his memory of James Haughey when they first met as short in stature. He says they spent "over an hour" on various subjects, and during that time he noticed that their speech was deliberate and unusually accented, but unobstructed. The manner of speaking was described as similar to James Haughey's six-day interrogation in that court. A clear obstacle emerged in James Haughey's speech during this hearing. It is highly unlikely that you will not notice it and be warned of potentially serious underlying issues. Anthony Moyles said a stroke had been mentioned, but James Haughey took it lightly and described it as unaffected. He said he has more than €5 million to invest in a stock portfolio and that he has completed his first year in law and English at UCG. He never felt that James Haughey didn't know what they were talking about or had trouble understanding anything. Speaking of plaintiff's age, Anthony Moyles said, "Okay, he was 20, but we've got all the guys in Davy." James Haughey has been described as determined in his opinion, implying that he could not be commanded (something this court not accepted). James Haughey was described as being very knowledgeable about equities, mentioning specific stocks and stocks such as Zara, Indetex, European Aerospace; and as a connoisseur of the financial markets, he read the financial pages of newspapers and financial magazines. It was only very late in the hearing that "The New Yorker" was curiously identified as one of them. Based on that meeting, where a 10 is a seasoned investor's knowledge of stocks in the financial markets, Anthony Moyles gave James Haughey a rating of about 6 out of 7. He explained that Davy offered discretionary accounts and advice for execution only that a client would need to open an advisory account to trade CFDs. He said he explained with examples how CFDs have multiples in terms of profit and loss and how these would result from being tied to these financial instruments. That's spelled out clearly, he said, as is the difference between buying shares in the hotel group and taking positions in contracts for differences on those shares. The relevant leverage for Jurys Doyle was 20%. The margin call was explained as a risk control. He evaluated James Haughey from the perspective of the four main components of the agent-client relationship, namely means, knowledge, risk-taking and goal setting. He explained that the entire position would bear interest. Forms explaining the nature of the risk, the nature of the relationship and the nature of the product were prepared for James Haughey and were said to have been carefully followed. These were signed in front of him. The front of at least one of these explanatory forms, if the wording is correct, is intended to be taken home, studied and then signed. Although the meeting lasted over an hour, it should have lasted less than an hour, the court reported. The forms were then filled out by their signature. These were not completed because Anthony Moyles had a full picture of what James Haughey was like. Such is the case for Davy. Or, it was said, if the forms weren't filled out correctly, Davy's documents department would be ordered to stop him from doing the job. That part of the documents never came back to stop him. This was a serious failure by Davy to have proper controls. Anthony Moyles was impressed by James Haughey, a 20-year-old property manager and law student. I didn't know James Haughey had gotten into a disability program through a notary public. He saw him involved in speculation and noted that he was aware of the risks involved with CFDs. One of the reasons she saw him speculating was that someone was willing to invest the amount he had spent that day, €175,000, in a single stock that fell into that category. There was also limited evidence for Niall Kelly. He said he couldn't remember the meeting clearly, but he didn't notice anything unusual about this client. He doesn't remember what was said about the nature of CFD talks. Your memory may be blurry.

20. James Haughey described the meeting in a radically different way. He'd gotten in to buy shares for around €175,000, but left the brokerage house with a long position in CFDs on those shares and potentially five times the liability he wanted. This was an indication of a 20% share. He didn't understand what he was doing. He described Anthony Moyles as saying he can buy stocks the normal way or we can get into these instruments. It used a lot of terms like leverage, margin calls, caps, etc. that he claims he doesn't understand. They told him that participating in CFDs was normal and that 40% of stock trades on a particular Irish index were done this way. "Pompous terms" were used in such a way that it sometimes appeared as if Anthony Moyles was speaking Latin. The choice offered was to earn modest returns by trading stocks or join the "big boys" in the so-called CFD club. As a typical possibility, 10 times the respective profit was promised, with the leverage being 20%. Standard forms were laid out for him to sign. These were not explained. Anthony Moyles held them out for him to sign, not read. They were placed in a file. They shook hands. Anthony Moyles said he would get in touch with you. Thus began, according to James Haughey, this unfortunate series of events.

21. What was lost in Davy's presentation of the facts is the seriousness of that meeting and how it laid the groundwork for a series of toll transactions that spanned two and a half years. While this was profitable at times, it ended in a serious loss for this plaintiff. Perhaps it was all too easy for anyone to fall in love with James Haughey's apparent wealth: in the old adage, déanann ciste cairdeas. Whether conventional wisdom is correct or not, any broker who sells financial products that may or may not be appropriate for a particular client has a legal obligation to find out who that client really is. The court accepts that Davy encouraged James Haughey to invest in contracts for difference. That was inappropriate for him. In addition, any system that deals with money must have checks and balances. It is unlikely that a securities firm would attempt to dismiss a process that involves the careful completion of forms as properly handled if the appropriate forms were not completed. Unfortunately, that was the position Davy took in this case. Considering that during the course of the hearing James Haughey got into a situation where he claimed that the forms were blank and then filled out by Davy, and while this has been criticised, the actual situation is not impressive. After James Haughey signed the application form to join Davy as a client, he was given a client number on the form in his absence; this is usual administration and beyond reproach. In his absence, however, he was also classified as a "gold" client and someone with an "aggressive" investment bias. The reference to the precious metal, the court should believe and sees no reason to assume so, had something to do with the number of forms that could be mailed to him in a year, or perhaps something to do with his financial resources, or perhaps NO. . As far as an aggressive approach to the stock market goes, with a degree of due diligence, it would be something that could be responsibly worked out over the course of weeks or months. Exercising even the slightest duty of care can drive the result of a poorly thought out approach into financial ruin. Does the customer really want that? That's the kind of question a stockbroker should ask. On the form, James Haughey signed a statement at the bottom as follows:

I declare that the information provided on this form is correct and I undertake to inform you immediately in writing if any of this information changes materially. James Haughey. 08/25/05
22. Any statement of this nature is very serious as it is fundamental to the paid service. Absurdities were talked about for days about this form. You have to face reality. It's an empty form. No information given. The document raises serious doubts about the details of the requested information that would be required for any brokerage firm to provide adequate customer service. Even the contact details were left blank. In another form, an address was provided for James Haughey as caretaker of a particular street in Ranelagh where hundreds of people live in dozens of different but similar terraced houses. The result is that there is uncertainty and more about what that particular customer received in the mail. This is not careful work. Multiple addresses were used for communication.
23. The form asks the client to rate their risk attitude from 10, speculative, to 1, conservative. This is empty. The client is asked to describe their investment knowledge and experience ranging from limited to 1 to extensive to 10. This is empty. Client will be asked to provide approximate value of investment holdings within a range e.g. B. Deposits, postal savings accounts, mutual funds, stocks, options, unlisted stocks, non-residential real estate and others. This is empty. The client is expected to indicate the source of his income from work, rent and other. This is empty. The customer is asked what their current retirement plan is and it is blank. The customer will be asked for additional information that he considers relevant. This is empty. The customer is asked what their initial investment is worth. This is empty. The client is asked about their investment objective, be it growth, income, guaranteed growth, or income and growth. Another very good question, except that there is no answer. The client is asked about the return they expect from their investment, but this is left blank. The customer is asked what time horizon from up to two years to more than five years would be suitable for his investment and is also not filled out.

24. Davy argues he's trying to justify this with a pen-taken photograph of Anthony Moyles. Hours were spent on this pen image and the parts that were right and the parts that were wrong. All attempts to justify this image with the pen were in vain. Here is the picture of the pen:

Personal Information
James Haughey. 7.5.85 single. Both of James' parents are deceased.

His father died about 10 years ago and his mother died last year. He suffered a mild stroke himself in 2004 but is in very good health and does not appear to be suffering from it.

He lives in Ireland and enjoys watching all sports.

Introduction Source:

Niall Kelly from the execution site got a call and introduced me to him.

investment objective

James now wants to buy a specific stock. You've been buying stocks for over two years, and your approach is that you buy stocks when you think they're cheap. You don't want to build up a portfolio yet, but want to buy certain stocks and reduce the risk of loss by setting limits.

He will eventually try to diversify his large real estate portfolio. He has properties in Northern Ireland and Dublin. It has already started selling shares and will accelerate this process over the next 6 to 12 months.

investment knowledge

He has excellent knowledge of the market. He does a lot of research himself. He reads all of the financial press and knows how the markets work. She has just completed her first year in Law and English at NUIG.

risk attitude

James risks losing. Ready to open a CFD product and seize the opportunity to buy your specific stocks? He has once again limited his downside potential by using stop limits and is aware of the risks associated with CFDs.

business information

Jamie is a college student.

money maker

James inherited property and cash deposits worth over €5 million from his mother and father. He owns most of the properties currently rented and is currently living on rental income. I spoke to him about diversifying his portfolio and potentially protecting his rental income. James has expressed an interest in meeting me again in a few weeks after that initial arrangement.

ethical preferences

James has no ethical preferences.


James wants all correspondence to go to his attorney.

James Haughey, c/o 18 Upper Beechwood Avenue, Ranelagh, Dublin 6.

25. Apparently there was another brief encounter between Anthony Moyles and James Haughey in June 2006 when the CFD provider's account was transferred from Cantor FitzGerald to IG Markets. The result is even worse. The court was told there was no discussion or anything to discuss about James Haughey's parents at the first meeting, and yet the parents are on both forms, his father died about 10 years ago and his mother earlier. Year. He is described as someone who enjoys "watching all sports". In the June 2006 application, James Haughey is described, for an extremely unclear reason, as a client who had received the Silver designation, rather than the Gold designation, a year earlier, and his actual name is "Jim Doherty". . In both cases he is described as extremely knowledgeable about the market and willing to take a lot of risk. A quote may be appropriate:
Personal Information
James Haughey was born 5/7/85 and is single. Both of James' parents are deceased. His father died about 10 years ago and his mother died last year. He suffered a mild stroke himself in 2004 but is in very good health and does not appear to be suffering from it. He lives in Ireland and enjoys watching all sports.

Introduction Source:

Niall Kelly from the execution site got a call and introduced me to him.

investment objective

Jim's goal is to increase his investment music. I showed him our CFD product and he agreed that in order to achieve a level of returns that he was happy with over the year, we would invest €50,000 in an A/C CFD and leverage it 5 times. We would seek to invest in high quality companies that we believe offer value.

investment knowledge

He has excellent knowledge of the market. He does a lot of research himself. He reads all of the financial press and knows how the markets work. She has just completed her first year in Law and English at NUIG.

risk attitude

James risks losing. Ready to open a CFD product and seize the opportunity to buy your specific stocks? He has once again limited his downside potential by using stop limits and is aware of the risks associated with CFDs.

business information

Jamie is a college student.

money maker

James inherited property and cash deposits worth over €5 million from his mother and father. He owns most of the properties currently rented and is currently living on rental income. I spoke to him about diversifying his portfolio and potentially protecting his rental income. James has expressed an interest in meeting me again in a few weeks after that initial arrangement.

ethical preferences

James has no ethical preferences.


Regular meetings and phone calls.

James would like all correspondence to be forwarded to his solicitor, James Haughey, c/o 18 Upper Beechwood Avenue, Ranelagh, Dublin 6.

26. As regards the other documents, the Court has taken all this into account. As for the documentation stating that James Haughey did not make a will, it is unlikely that this was due to him as his health condition makes him aware that the likelihood of further strokes is higher than in the general population. His statement shows that he is seriously concerned about his health. Davy's attempt to justify this apparent lack of diligence undermined the credibility of Anthony Moyles and every other Davy witness. It's also fair to point out that Anthony Moyles must be seen as correct in his criticism of Davy's documentary section. In any organization with a set of checks and balances, all forms submitted on behalf of James Haughey would be checked for consistency and any forms lacking any material should result in the suspension of any form of trading. . Moreover, the fact that such a situation could arise is negligence. It should have led to a general diligence that at a higher level at different levels was asked what the situation between the stock broker and the customer level was like. The deeper you delve into the subject of shapes, the more extraordinary the situation that arises becomes. There was no clear idea of ​​which address the forms should go to, assuming James Haughey had multiple addresses. This last factor should have made the issue of leadership a top priority for any administration. This meeting in June 2006 was not described by any of the parties in this case as additional knowledge on the part of the customer or the company. Apparently Davy introduced requirements in 2006 that a senior manager must approve the client as eligible to trade CFDs, possibly prompted by switching to IG Markets as a provider. Has the senior manager read about it and looked at the equity situation, whether it's stagnant or not after a year of working with Davy, as manifested in these forms? There is no evidence that any degree of care was taken. Nonetheless, on June 12, 2006, James Haughey was found eligible through Davy to open a CFD account by an apparently senior person described on the form as "Member of the CFD Authorized List". with the client and the portfolio manager that controls are implemented within the team to ensure the portfolio manager keeps this exposure below this specific threshold. In fact, there was no limit. The form continues:
I analyzed the suitability of the above client for CFD trading. I met with the portfolio manager who will be responsible for managing the client's CFD account; Together we assess the client's financial situation and assess their risk appetite based on the documentation completed and submitted by the client and the portfolio manager. I have carefully considered and verified the suitability of this product for the customer's circumstances. I am pleased that there is sufficient documentary evidence that the portfolio manager took the time to discuss with the client the risks associated with this product, which are detailed in Davy CFD's risk warning letter. I am convinced that the customer fully understands these risks.
27. The Court is satisfied that this did not happen and that this form was completed on paper. These forms are designed for careful execution. The way they were treated diminished the level of care expected of a stockbroker when dealing with a client.
28. Many forms were discussed in the course of the hearing and the Court takes them all into account. It should be noted whether the statute of limitations changed from open inattentiveness in August 2005 to a warning at any time. The court is convinced that this never happened. Particular attention was paid to the conditions of the advisory service. The reality is that this is a contract under which Davy has agreed to advise the client in accordance with the client's objectives and in a manner that Davy deems appropriate for the client. That never happened. The consulting conditions limit liability to intent. The first meeting in August 2005 shows willful negligence. The June 2006 amendment and disregard demonstrate willful negligence. The exaggerations in the December 2010 application form have been mentioned above. Also, in June 2006, James Haughey filled out a similar form. In this case, the relevant fields have been filled out. The account James Haughey gives in this connection is that he was given this form and was disturbed by a memory. , whether from school or university or talking to friends at university, the commitment to extremely good faith when filling out insurance contract forms, called Anthony Moyles. As a result of this phone call and during a phone call, the form was overfilled at the urging of Anthony Moyles.

29. It has been argued that James Haughey's evidence is entirely improbable and this conflict is given special emphasis. Davy's argument is not accepted. The form is filled out in such a way that an asset base is created that is at least three times larger than the form that was not filled out a year earlier, but for which the so-called Federbild exists. This balance contradicts this: It is set at "more than 5 million euros" and is far from 17.6 million euros. This should have been consulted by the Davy Docs department and it should have been consulted by Anthony Moyles and it should have been consulted and even more so by the senior manager who authorized James Haughey to be eligible for CFD trading. There was a systems failure and a lack of accountability from management. The question asked on the form is something like: "How many of these funds are available to trade CFDs with Davy?" The answer given is "no limit". That's meaningless. It was highly negligent to have taken this form. Anthony Moyles' mental rating of James Haughey's financial experience for investment knowledge and experience was a 6 out of 7 for the previous year. On the form completed by James Haughey in June 2006, his investment knowledge and experience is rated a 5, meaning is a “ good” level of understanding based on the scale provided. As for experience trading margin or leveraged products, James Haughey answered negatively: he had none. It's further evidence that he didn't understand what was going on. This should have been asked at the stockbroker level and, more importantly, at the senior manager level. This didn't happen. James Haughey's account of this form, the most controversial of all, is not unlikely. Davy probably added something to the answer when filling out the forms in June 2006. with direct live pricing, but this has not yet been finalized. This form is for information only; But in connection with this kind of rapidly evolving situation of financial instruments, there is nothing more important than information.

30. The question arises whether, in August 2005, June 2006 and up to February 2008, Davy was aware of his limitations, or at least informed that those limitations existed, through persons associated with James Haughey. It is very likely that the Davys were also aware of this. What is even more apparent is that Davy, as a company, was informed of the restrictions and was negligent in not conducting an investigation where it was clearly necessary. As far as it can be argued that this was just a warning, Davy's legal duty was to know the customer and what was right for the customer. James Haughey's limitations were communicated to the court during the hearing, and it is also apparent, but not considered in the final judgment, that these limitations were apparent to Davy's witnesses who heard James Haughey's testimony. . If someone is notified of a restriction, to the point of finding that someone has suffered a stroke, and the notification here was much more serious, a stockbroker's duty of care should have been acted upon. what kind of investment might make sense. Not all are created equal and there is no shame in saying that James Haughey was and is different than the average investor in stocks and other financial instruments of a more complex nature. Davy's denials cannot be accepted as probable. It should be noted that in late 2010/early 2011, when James Haughey finally convinced Davy to give him an interview, Anthony Moyles sent an email to another of Davy's employees, saying, "...take make it easy for him". In and of itself this may mean nothing, but in the context of everything seen and heard during this trial, it is an expression of the defendant's shared awareness of the nature of the client.
Duty of Care
31. Davy had a duty of care to James Haughey. This does not require an in-depth legal analysis. James Haughey paid Davy to take care of this. The duty of care arose from the contract, but manifested itself independently in the tort. Davy owed James Haughey the duty of care of an experienced broker in relation to a particular client, where, pursuant to that duty of care, the broker took reasonable steps to learn more about the client and his interests, goals, and means to know what their financial circumstances are, how the customer's attitude to risk, and most importantly, objectively assessing whether that level of risk is appropriate for that customer. Otherwise, the customer should be discouraged, and possibly more than that.

32. The general duty of care can be compared to that of a lawyer for a client. The comparison is appropriate because it is part of the attorney's job to ask reasonable questions to determine the client's true position in order to adjust the advice accordingly. Here, Davy kept making the empty argument that simply taking a picture with a pen is enough to find a customer. The implication of the lack of management intervention in authorizing James Haughey to trade CFDs and the fact that the account was not stopped by the documents department is that good enough practice was being followed. This is not a fulfillment of the corresponding obligation. The matter was discussed by Henchy J. in Roach v. Peilow [1985] I.R. 232 of 254:

The general duty of a solicitor to his client is to demonstrate to him the care that is expected of a reasonably diligent and competent solicitor in the circumstances. In general, an attorney would be considered discharging that duty if he followed a standard practice among the professional accountant... Adherence to the generally accepted practice of his peers would normally refute an allegation of negligence against a professional accountant by the degree of diligence. What the law expects of him is no more than what is expected of an ordinary reasonable member of the profession or specialty concerned. But there is one important exception to this rule of conduct... [The] obligation imposed by law is based on the standards expected of a reasonably caring member of the profession, and a person cannot be said to be acting reasonably if they are automatic and without having done so, if he had pondered the practice of others while reflecting on it, he would have recognized that the practice in question was fraught with dangers for his client and was easily avoidable or curable. The practitioner is of course not to be judged in hindsight, but it can be said that if he has recognized at that point, through consideration of the matter, that the disputed practice may have been inconsistent with his client's interests, and if he reasonably safe alternative course of action is available, he will be considered negligent.
33. Trading stocks always involves risk. This does not necessarily relieve a broker of responsibility for a client who is willing to take a risk without proper assessment of that client's needs, background and knowledge and appropriate tailoring of advice. As Clarke J. comments on this subject in ACC Bank plc v. Johnston [2010] 4 IR 605 at 639:-
Although a professional's duty of care is often described by reference to standards that a person of comparable skill would normally apply, Roche v. Peilow argues that the mere fact that a practice is universal does not relieve that practitioner of potential liability where the practice is one that that practitioner should reasonably have recognized as posing a significant risk. In this regard, Walsh J.'s reference to an “equity” risk should be noted. Everything has risks. Professionals cannot remove risk from the equation. As a rule, however, experts are commissioned to minimize risks or to advise customers on relevant risks. Professionals should not expose their clients to unnecessary risk without at least making their clients aware of the risk involved and asking them to seek guidance. The mere fact that it may be common practice to expose clients to a particular type of risk does not necessarily constitute a defence. Ordinary due diligence, therefore, extends beyond ensuring that the relevant professional accountant performs his or her duties in a manner consistent with others qualified professionals do, but also extends to examining whether usual practices are obviously unnecessary risks that can be eliminated, therefore such practices should not be carried out. Such practices can be said to be more honest in non-compliance than in compliance in the true sense of the quote.
In this context, it seems appropriate to ask what point there would be in engaging an independent lawyer if not to reduce the risk that the financial institution could face. As mentioned above, a financial institution takes a risk by hiring the buyer's attorney to act on their behalf. For the reasons I have explained, it seems to be a risk that financial institutions are willing to take, at least on smaller operations, in order to save costs. However, when the operation is larger and the financial institution decides to reduce its risk by hiring its own attorney, it does not seem appropriate for that attorney to take responsibility for exposing the financial institution in question to the same risks it was trying to protect and avoid it by using it first.

34. Central to any reasonable view of the nature of a stockbroker's duty to his client is that clients are different and before any client can be advised reasonable efforts must be made to achieve that. There is a binding obligation under the Irish Stock Exchange Rules 1997 which came into force on 25th August. 2005. The attorneys agree that these rules will govern the relationship until November 2007. The relevant Rule in this regard is summarized in Rule 4.5.3:
Before a member firm enters into a relationship with a retail client that is not an execution only client, it must take reasonable steps to obtain written information from that client, details of:
(a) personal financial situation,

(b) investment objectives,

(c) risk taking,

(d) investment experience,

(e) Investment Restrictions and

(f) any other facts about your position that the Member Firm reasonably thinks you need to know or are expected to try to find out.

By capturing a client's investment objectives and risk attitude, the firm can provide the client with a standard set of investment objectives in their client documentation. For each investment objective and risk option listed, the Company ensures that sufficient guidance is provided to enable the client to make an informed decision.

35. Fundamental to the broker-client relationship was that the client paid for these services. The client paid on the basis that a proper investigation had to be carried out and the service adjusted accordingly. Investors can be different. Davy's fees were paid to fulfill each client's specific obligations. In that sense, Davy didn't live up to that standard. Davy's attorney correctly accepted that this was the standard used. In addition, there are other obligations that are not essential for the decision of the procedure. To the extent that Davy claimed that risk warnings were issued and that this was in accordance with section 4.2.4 of the same rules, this is not accepted. The additional requirements for consulting customers mentioned in Section 4.2.2 were not met in this case. Also, it is unlikely that 4.1.1 was enforced. There is a duty of care, but even if the duty of care is based on a contractual obligation of willful negligence, such negligence is present here. When the rules were changed in November 2007, there were no discernible changes in Davy's practice with this client. In fact, much attention was paid to this case in the European Communities (Markets in Financial Instruments) (Amendment) (No. 2) Regulations 2007 (S.I. No. 773 of 2007), but the analysis of these continued, but nothing to those already essential obligations added to this decision. Some specific terms have been mentioned, others have not been asserted and this is not appropriate for the orderly handling of a case.
36. Davy's obligation to James Haughey was in both contract and tort. James Haughey paid for the tips. He had hired fees to receive advice based on a thorough analysis of who he was and what his goals were. As Lord Goff in Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145 in 193-4:

[The] common law does not preclude indirect liability, and [..] there is no sound basis for a rule that automatically limits the offender to tort or contractual remedies. The result can be confusing; but since the duty of civil liability is imposed by common law and the contractual duty is imputable to the will of the parties, I do not find it objectionable that the plaintiff may have the right to seek the most advantageous remedy subject to the finding that whether the unlawful obligation is so inconsistent with the applicable contract that it can be reasonably assumed that the parties have agreed that the unlawful remedy should be limited or excluded

Opinion of an 'expert
37. Two experts took opposing views on the fundamental issue of due diligence. Both were true experts and the court benefited greatly from the debate between them. Paul Keenan tried to justify the pen image as sufficient for Davy in the context of the Know Your Customer exercise. Paul Keenan has spent his professional life trying to raise awareness among financial service providers of the need to ensure compliance at a higher level than retailers. From the public's point of view, this is something important. You are absolutely right about that. Writing about what can generally be described as a lack of management oversight, he said:
Internal audit has a role to play, but its role is always late, runs on a known schedule, and relies on systems that traders can manipulate. It requires expensive forensic training and major modifications to be effective. Today, compliance officers are typically on-site and in daily contact with merchants. They understand the SYSC and if they have the tools and access they will understand how compliance with the SYSC can be monitored. Compliance monitoring is already well established in banks and can easily be expanded to include SYSC.
38. Paul Keenan does serious and important work and deserves everyone's respect for it. He said the quote above refers to a different ministry. The citation contains at least one statement of sound principles that the Court recognizes. However, the court cannot accept that a pen image, which was never submitted to James Haughey for approval, can be assimilated to a customer profile. This was part of the paid service. Nor can it be accepted that any aspect of plaintiff James Haughey's speech in court on contracts for difference could be described as "quite impressive". It's not like this. It cannot reasonably be said that an execution only account would have been suitable for James Haughey to trade CFDs as he would have been under the 'supervision' of Anthony Moyles. It is also unacceptable that even an ordinary person can read the documents submitted on August 25, 2005 in an hour and view the decisions even faster. This is unrealistic and cannot be assumed to be probable in this case. These and other considerations lead the Court to conclude that while it is very beneficial to debate the contrary opinion, the expert evidence presented by Joe Motley on behalf of author James Haughey is strongly preferred.
39. He considered that even if the plaintiff did ask for more risk, there was a duty under Irish Stock Exchange rules to take all reasonable steps to ensure that Davy's board did not encourage inappropriate activities. In his view, Davy had a responsibility in advising James Haughey to move away from risky positions at a much earlier stage. Additionally, if Davy believed there was an ongoing pattern where James Haughey chose to take trades that did not meet his eligibility criteria, he was open about it and they should have asked him to change his account status to Execution Only. Account. In such a case, the broker would not provide advice in relation to the client's transactions under the relevant regulations and would not be required to verify its suitability for the client. This was a series of deals that at their peak exposed James Haughey to over €30m in risk. This in a context where his apparent value on the original pen picture was perhaps 5 million euros and which appeared to include his residence which should not be taken into account. Nobody should be able to invest, he said, unless they intend to lose 50% of their value. The language of the warnings was dense and difficult to digest. After the account switched from Cantor FitzGerald to IG Markets as a provider in June 2006, the level of risk increased. The Court finds it important to highlight the total failure to hold any face-to-face meeting other than a brief interview, and more importantly, the signing of blank documents. According to Joe Motley, that level of risk was too high and too concentrated, essentially in two or three companies and only in one type of investment. Such exclusivity is not appropriate. Accepting a June 2006 response from James Haughey on the level of wealth tied up as "unlimited" made no sense, he said. The customer has to be seen as a customer, according to Joe Motley, and if someone has an inheritance, that person may not be smart, not a person who makes their money and has worked their way up to a level of he can. Also, someone who has an inheritance and is just a student cannot expect to easily enter the job market. It is true. Building a career takes years. If one is dependent on an inheritance, the money should be structured through one's agent so that it has a reasonable chance of lasting for decades. When a broker feels that a client is taking too much risk, it is right to switch to execution-only, and this should have been done in relation to controversial trades in May 2007. This evidence by Joe Motley is accepted. He is of course uncomplicated, does not shy away from difficult questions and was extremely helpful.

40. Another aspect of Joe Motley's statement is accepted, although not essential to the decision of the case. That says:

I have been unable to find any evidence in the documents that Davy provided the plaintiff with his terms and conditions prior to the commencement of dealings (as required by Rule 4.2.1 of the Irish Stock Exchange Rules) and there is no record of any such disclosure. elsewhere what commission rates, financing fees and other charges would apply to your account.
41. The Court also noted that the return in the form of interest calculated on the full value of the equity position entered into between the broker and the provider was omitted from the test. How and under what circumstances a broker is entitled to a bonus and on what basis it is calculated has been obscured by evidence, so no essential information has come to light. What a "silver" customer or a "gold" customer might be was intentionally obscured in the evidence. Hints at the number of brochures that could be mailed to a certain type of customer characterized by metal rather than another, given that gold bullion is some 100 times more expensive than silver, were foolishly explained. None of that matters. And none of that is factored into the decision making in this case. Unfortunately, however, this shows a lack of trust in the fully transparent and independent public forum of justice represented by the Supreme Court.
42. Regardless of whether there are experts or not, it is for the Court to judge. The court has that responsibility and, unlike any expert witness, has a complete view of the live evidence and relevant documentation.
43. There were also some disputes between the parties about James Haughey's loan to finance these contracts for difference. This is not essential for this decision. In fact, it appears that on 21 April 2006 a loan of €1.64 million was arranged with the Bank of Ireland on the share capital of part of their assets. The loan check was written on May 31, 2006 and given to an attorney who is a friend of James on July 4 of the same year. Then €650,000 was deposited into James Haughey's CFD account. On 14 March 2007 a loan of €1.2m was granted by the Bank of Ireland on the equity of the property. The check was made out to James Haughey on June 11, 2007 and €1.1 million was deposited into the CFD account. James Haughey collected 2.84 million euros from his assets and around 1.75 million euros were paid into his CFD account. Money was deposited into and withdrawn from this account to buy real estate, pay capital gains taxes, and other reasons. This money movement is considered significant, according to Davy's argument. This will not be accepted. In reality, 1.09 million euros came out of these loans. After carefully examining the conflicting evidence, the court accepts that Davy encouraged these loans. This huge sum was raised against James Haughey's property by his late parents. This was not an appropriate way to deal with this customer and Davy would not have treated him that way if a proper getting to know your customer drill had been conducted in early August 2005, June 2006, June 2007 or at any time up to the losses. Disasters that manifested themselves in January 2008.
44. The Court is required by law to accept, and still accepts as an expert opinion, that the proper way to treat James Haughey would have been if Davy had known him properly at all. In that context, secondly, if there was an apparent desire, along with reasonable knowledge, to negotiate differences in some form, someone of your experience and vulnerability to not having a job and only having inherited the fortune would have it should be expressly warned in writing against negotiating contracts for difference. Third, the right approach to any investment for that particular client, with their specific needs and unique disabilities, would be to build a stock portfolio that expands over time and into investments that minimize risk; and thus offers a reasonable prospect of a stable but conservative return. If Joe Motley had received any charges from that client, this would have happened. This didn't happen. This breach constitutes negligence and apparent willful breach of contract during the relevant period of the relationship.

45. In summary, Davy showed an insufficient level of care throughout his relationship with James Haughey. Davy has not performed the paid service throughout their relationship. This was or was intentional. At no point in this relationship should this particular customer have been permitted to participate in contracts for difference, either at all or at the level involved. James Haughey didn't know what he was doing either, as he should have known before being introduced to him and while he was allowed to speculate about these products. The court is satisfied that the concept and implications of contracts for difference were never properly explained by Davy to James Haughey. The court is also pleased that he was genuinely at a loss as he testified about the full implications and implications of these instruments.
action limitation
46. ​​Getting to know James Haughey as he was was a total failure. There has been a total breach of this fundamental obligation under Irish Stock Exchange Regulations. This obligation does not arise at a specific point in time and then exhaust itself; it's an ongoing commitment. In this case, this obligation was never fulfilled. While a full introduction and analysis can be performed while a profile is being maintained for years or decades, failure to engage in such analysis means breaching an obligation throughout the relationship. Therefore, this case has nothing to do with the statute of limitations.
Civil liability law
47. Another point raised by Davy was that Section 17 of the Liability Act 1961 did not entitle James Haughey to claim damages. This section says:

(1) An indemnity or agreement with a competing infringer must indemnify the others if that indemnity or agreement indicates an intent to indemnify the others.
(2) If such indemnification or understanding does not indicate such intent, the other infringers will not be released, but the injured person will be identified with the person with whom the indemnity or understanding is in any proceeding against the other infringers pursuant to paragraph () was hit. h) paragraph (1) of Section 35; and in such action the claim against the other infringers shall be reduced by the amount of the consideration paid for the indemnity or settlement, or by any amount by which the indemnity or settlement provides that the aggregate claim be reduced, or by reduces the amount that the infringer with whom the relief or agreement was made would have been required to contribute if the originator's entire claim had been paid by the other offenders, whichever of these three amounts is greater.

(3) The out-of-court confiscation of funds paid by a defendant is deemed consent and satisfaction for the purposes of this part.

There are a number of problems with Davy's argument. The point is that the complaint, like almost all petitions before the Supreme Court, contains many claims that have not been decided. One was conspiracy and the other was alleged negligence against the two defendants. The first day of this case was spent waiting for negotiations between the parties. No court cares and will deliberately exclude you from the proceedings. The result was that the proceedings against the Bank of Ireland were stayed and a judgment for that bank of EUR 3 million was issued against the plaintiff. That was in relation to the usual credit and interest rate, it seems. The court did not examine this in any way and was not obliged to do so. There were vague references to the allegations. But where is the accident of responsibility for James Haughey? In these circumstances, how can it be said that the Bank of Ireland is a concurrent infringer with Davy when liability was never found against that bank and instead the alleged concurrent infringer entered substantive judgment against the plaintiff? The bank and Davy are said to be in a conspiracy, an agreement to commit an illegal act against the author. Where is the evidence of this conspiracy? How can the court conclude that an unrepresented party who left the court because the case in which that party was involved was settled is a wrongdoer? And where is the “consideration for release or settlement”? The section is quite a useful tool to ensure that where the case against an infringer is settled but the defendant is left in the dark or denied the benefit of a reasonable level of damages, double indemnity is not paid. In contractual matters, this measure is the damage that naturally arises from non-compliance. This is to be judged by the nature of the contract and what the parties could have foreseen as a result of a breach of contract. In civil liability, the extent of the damage calls for compensation to put the offender back in a position where the damage is compensated for by adequate monetary compensation: that is, theoretically, as if the damage had never been caused. But where is the culprit with whom this deal was made? Should it be the Bank of Ireland? In this case, the terms of the contract contradict this claim. Instead, the author paid money. According to the law, no one pays money to a wrongdoer. What this line of reasoning lacks is an account of what the Bank of Ireland did wrong and what compensation the bank paid the plaintiff before it can be said that the injured person must be identified with the bank for release or winding up.
Awareness of Losses and Reports.
48. The Court accepts that James Haughey is likely to accept the warnings and act accordingly. The court accepts your oft-repeated statement as evidence that, having hired an expert, you probably followed his advice. Whether the nature of your personality makes you susceptible to the advice of those you admire, which is a common human error anyway, is not part of the matrix of facts that constitutes the decision in this case. . The court is by no means content to rely on written accounts of Davy's advice from James Haughey. The failure to adequately record crucial aspects of the relationship from the outset and to consider its elements throughout that relationship's process indicates that Davy's records are unreliable. Even if the records of the advice given were reliable, the nature of the complainant in terms of who he was and what his needs were should have been taken into account in giving that advice and was never taken into account.

49. The disastrous positions in Ryanair shares were initiated and partially formalized while James Haughey was in the Psychiatric Unit at Galway University Hospital. The court finds it highly probable that there were conversations between James Haughey and Anthony Moyles at the time as to where he was, how he was doing, what exams he had passed, failed or failed, or any important event in his life, including the loss of your close friend. It is unlikely that Anthony would have advised Moyles against taking a role at Ryanair. The evidence was carefully listened to and the stark contradiction noted between the advice recorded in a telephone conversation dated 24 April 2008 and an evidence statement that the actions of airlines in general were somehow suspicious of the risk of an accident. Ryanair is regulated in its operations by the Aviation Authority of Ireland and so this view is surprising. It is likely that they were acquired and kept in jobs at Ryanair as a result of Davy's advice to James Haughey. In this regard, the Court notes that Anthony Moyles coached sports abroad while some of the stands were being built. However, in terms of the likelihood of what happened based on the state of the evidence, May 2007 was the time to completely sever any relationship between Davy and James Haughey and contracts for difference. Failure to do so, in the context in which it occurred, was a failure to respond to the evolving nature of the relationship, which must be based on the broker's knowledge of his client.

50. On July 25, 2006 there is a note in the records:

Both I (Daniel Molloy) and [Anthony Moyles] informed the client [James Haughey] that it would be too risky to sell Greencore stock at this point. We highlighted the risk [...] Our advice was that you should not short stocks at this point. However, the client proceeded by requesting a short position on 2,000,000 shares at €4.20.
51. Indeed James Haughey did not take office and the Court may be satisfied that Davy was able to give advice and James Haughey was able to act on it.
52. Then, on July 31, 2007, Anthony Moyles dictated a note to John Clohisey, who was his assistant at the time. There is an issue with phone calls in this regard as John Clohisey's phone call was not recorded until later in the day. Part of the suspicion raised regarding the phone calls in this case was that many were being kept outside of Davy's internal records on brokers' mobile devices. That is probably. The note says:

We reviewed the CFD portfolio with James on July 31, 2007. We discussed the recent volatility in the markets and noted that there could be further falls in the near term. He is happy with the current positions and will send more money if necessary.
53. John Clohisey testified. His testimony made it clear how far he would go. Your statement will be taken into account as far as it is probable and parts of it are accepted. These parts do not help the defendant's case.
54. On Wednesday, August 1, 2007, Anthony Moyles dictated another note to John Clohisey:

We spoke to James on August 1st, 2007. We discussed the idea of ​​going short to hedge your current market long positions. We caution against his large exposure to Ryanair and Inditex and the risks this poses in the current market. James noted that if you want to protect your portfolios, we will consider holding the short position and reversing.
55. The problem with this advice is that short positions were built up shortly afterwards and Inditex was eventually sold. The short positions were in stable stocks that were unlikely to offset the wide swings that characterized Ryanair's position. These short positions didn't solve the serious problem, but Davy advised them as part of the solution.
56. On Wednesday, August 29, 2007, there is another memorandum from a time when John Clohisey was on vacation:

I spoke to James on August 29, 2007. I explained the situation that we are entering a very turbulent period in the markets over the next 6-12 months. I explained to him that if the market were down 20% on average, he would have margin of almost [€]5 million based on his current stakes in Inditex and Ryanair. He said he understood and would consider it. He didn't want to reduce any of his possessions at the moment.
57. Shortly thereafter, Ryanair's position was slightly reduced by about a third. Inditex was sold leaving only Ryanair but taking short positions in a variety of other packaged stocks. The last operation at Inditex appears to have taken place on September 21st. 2007. The short positions that started in August 2006 continued until December 27th. In 2007 and once, on October 30, 2007, these short positions reached €5,844 million. The above short circuits are not relevant to any results. In the context of everything that happened in this case in relation to record keeping and record checking, these records of Davy cannot be taken as a likely representation of the advice given to James Haughey. Also included in the file was an alarmingly selfish note dictated to John Clohisey by Anthony Moyles on Saturday October 27, 2007. The circumstances described in court for the dictation of this note are unlikely. The note says:
We called James every day to check all the holdings on James' CFD account. James has a good understanding of the financial markets. He has his own ideas about companies. Find out about specific companies regularly and read the financial press. He understands leverage and has used this tool in his own real estate transactions. Anthony explained how leverage works with CFD instruments and the risks involved. James has received all relevant CFD documents and is happy with the risks involved. James relies on Davy for investment ideas, but also makes his own decisions about buying specific stocks and selling positions. James confirmed that he was pleased with the recent sales of Inditex (September 2007) and Independent News and Media (April 2007). James confirmed that he is happy to hold all stocks currently in the portfolio including long positions in: Ryanair and short positions in the FTSE 100, EADS.
58. This note does not reflect the nature of the relationship, as the Court considered likely. Davy as a company knew James Haughey was struggling. Davy's responsibility in this regard was to end any involvement of James Haughey in contracts for difference. This relationship should never have been entered into in the first place. It should have been checked carefully. Throughout this relationship, Davy has had several opportunities for a proper makeover. The episode of tension was one of the most obvious. Positions could have ended with Cantor FitzGerald moving to IG Markets, but that didn't happen in June 2006. When apparent stress for Davy resulted in James Haughey ending up in hospital, whether I say psychiatric or not. for everyone in Davy, the relationship should have been reviewed in May 2007. Instead, this disastrous series of events continued. As far as warnings are claimed, the court could only accept July 25, 2006 as the probable date. Because the source of the note is not inaccurate. Any further communications are likely to be distorted and any testimony on these warnings was deemed unlikely. Any advice to offset long Ryanair positions against short positions in a variety of stocks was insufficient. But it was advice that, according to the documentation, was likely followed by James Haughey. Any competent and diligent broker would have given clear and unequivocal advice on exiting CFDs on the June 2006 review date and on a May 2007 review date. In what Davy chose for him, James Haughey was totally out at sea and out of his depth. There was no review by the documents department to verify and no required management review was performed even if your client was contracted for contracts for difference.
59. One aspect of the negligence law is foreseeability. No sane broker would have allowed James Haughey to engage in this type of trade because no sane broker could have predicted a good outcome for him as a client. In terms of timing, a sane broker would have looked at where James Haughey stands financially and in terms of employment and source of income and whether wealth should be nurtured rather than speculated and asked for how long. the money he had should be enough. All these questions of evidence would have given the same result in this case. Even if warnings had been issued, they could not, in fact or in law, reverse the situation Davy had put James Haughey in.
60. The IG Markets Statements were found to have been emailed to an email address belonging to James Haughey at University College Galway. Davy had two different email addresses for James Haughey, both very similar. This lack of attention to detail is not impressive. In the end, it's likely that the emails went straight from IG Markets to James Haughey at his university email address. The court does not accept that you understood or read it correctly. James Haughey cannot recall the emails in question. This proof has proven to be reliable. The university data manager was called. All emails have already been deleted. IG Markets stated that no emails were replied to. It's hard to say what happened. One possibility is that the emails were treated as spam and accepted, but ended up in a spam folder in your inbox where they weren't read due to university logs. That is not clear. They seem less likely to bounce back as it would leave a mark, in other words IG Markets would find out about it through its tech arm. Another option is to block the attachment size, but at this time there is no information on the university logs. Another possibility is that James Haughey ignored everything and relied on Davy to keep him posted. What is clear is that he did not fill out IG Markets' computer information access form on a specialized website. This was mentioned above in relation to shapes. He says he complained to Davy that he needed information on paper and he suspects Davy stopped those records for a dishonest act. The court accepts that nothing Davy did as a company in dealing with James Haughey was dishonest. There was negligence, and that amounts to willful negligence. That's all. The court accepts that a request for information was made on paper, perhaps not very enforceable, and that IG Markets' records were an inadequate substitute. James Haughey seemed genuinely surprised when the IG Markets email attachments caught his eye. The e-mails probably did not reach you. Even if that bothered him, it took more than that as a customer to show how the accounts worked. As you've complained, one position may be clear, but the overall result was what needed to be shown. This statement is also personal for this author. But again, the know-your-customer exercise requires a fair amount of assessment of each customer's needs. The court is not satisfied that Davy's case regarding the proper delivery of the e-mail and other written documents is presented as probable.
damage and losses
61. Both John Harding and Andrew Brown are exceptionally competent accountants. They met and agreed on a joint report. They are divided on one point, and that is the result of the award of damages. The inherent logic of John Harding's proof makes his point preferable, although the discussion with Andrew Brown was of considerable use in clarifying the issues.

62. The Court takes a fundamental view. This contract for difference would never have happened had the brokerage firm known about James Haughey. He would have been stopped and replaced by Conservative Joe Motley if Davy had acted on that knowledge. The court's approach to damages is to remove that exchange and put the plaintiff back in the position he would have been in had no exchange taken place. The court does not accept that losses in alternative investments would probably have occurred. The court finds it likely that investing in a variety of good stocks through cash holdings would lay the foundation for wealth diversification on solid foundations. The money is unlikely to have been lost, diminished or thrown away. None of the alternatives presented by Davy would have persuaded the court that little growth would have accomplished more than maintaining funds if there had been sound advice such as that taken by Joe Motley.

63. On the key issue of the capital gains presentation, the Court finds that James Haughey's rush into these products was wrong and that it was wrong to keep him in this speculative sector every day it happened. The measure of damages is to remedy that error and place the plaintiff in a position as if those unfortunate forays into leveraged products never happened. Commenting on his interactions with Andrew Brown, John Harding justified his position as follows:

We agreed that the capital gains tax paid is an item to consider, primarily because losses were incurred on the 2008 CGT losses or losses for capital gains tax purposes, but such losses cannot be offset against capital gains tax. paid in the previous thousand and seven years. In other words, once you have paid taxes on past income, the taxes are settled and cannot be offset. In relation to the assessment of the amount of money that would have been required to put the plaintiff in the position he would have been in if CFD trading had not existed, the point is to say, “Look, if it there would not have been a CFD trade You would not have received the benefits of previous years which we have taken into account and compensated to €1.5m but I would not have had to pay capital gains tax either, the non-recoverable capital gains tax paid thereon", therefore , a valid title of claim... Derived from the CGT Legislation as currently structured, losses incurred in January 2008 are not reversible but may be carried over in terms of an ongoing situation. , CGT loss carryforwards would be available for use against any future capital gains that the plaintiff may realize... To the extent of any dispute, the plaintiff will be awarded compensation under this proceeding in the amount previously claimed... I see , that at first glance we seem to have a loss carryforward of EUR 3.7 million and that we will receive compensation, or we would receive compensation of EUR 2 million in this situation. So in such a situation there would appear at first sight to be residual losses which the plaintiff could carry forward and which could be at his disposal provided the legislation does not change and gains are made at some point in the future and that is the situation. I think... that doesn't stand up to scrutiny. I believe that within the framework of the resolution of this procedure, for example within the framework of compensation of EUR 2 million, this compensation fully compensates the plaintiff for the damage suffered in 2008 of EUR 3.7 million. ...or allows a credit to the plaintiff, the after-tax income you earned in prior years implied by those net amounts. So when he decides the amount, he finds that he takes the realized losses in 2008 and refunds the after-tax profits he made, and in such a situation the capital gains tax losses are not available to him. if you receive compensation of the amount claimed.
64. The Court fully accepts the logic of this position. The author is also unlikely to make a profit. It has been argued that since the Bank of Ireland has appointed trustees for its properties, gains are likely to be realized on the sale of those properties and that any losses carried forward should be legally available to write off those gains. . Apart from speculation loosely based on house prices, there is no evidence that these gains will start moving again in Ireland. There is also no information on when a trustee is expected to sell properties. Even if this information was given, the logic of the position as expounded by John Harding is considered persuasive.
65. The Court accepts John Harding's figures. Consequently, the net losses in the relevant amounts for CFD trading accounts were €1,250,475 to which the non-recoverable capital gains tax must be added and this amounts to €487,066 to which the interest cost on the invested capital must be added. on CFD trading up to October 31, 2013 of €350,960 and finally the interest cost of funds invested from November 2013 to the end of February 2014 of €11,120. The total damage that can be reimbursed is therefore €2,099,621.
66. An unfavorable rate of €2,099,621 is waived for the plaintiff.

Ryan v Danske Bank A/S t/a Danske Bank [2014] IEHC 236 JUDGMENT by Ms. Justice Baker delivered on 29 April 2014
1. The Applicant owns two unregistered offices known as Franciscan Hall located at 1 Henry Street and 2 Sarsfield Street, Limerick and registered land comprising Folio 47241F County Kerry with an address at 31 Gortamullen , Kenmare Holiday Village, Kenmare, County Kerry. The first defendant bank ("the Bank") benefits from a mortgage on the grounds of Franciscan Hall that was created on January 27, 2003 and a first mortgage that was registered on November 12, 2003. The bank also benefits from a mortgage or lien on the author's principal private residence at Lemonfield Cottage, Crecorca, Co. Limerick, where he lives with his wife, Susan Halvey.

2. The Bank appointed trustee for the second defendant of the registered property by instrument of appointment dated November 28, 2013 and administrator of the unincorporated properties by separate instrument dated January 20, 2014.

3. In these proceedings, the plaintiff applies for precautionary and declaratory measures and asserts that the appointment of defendant 2) as administrator of the respective commercial property is void. The matter is before me in an injunction order barring the second defendant from acting as trustee of one of the entities and an order barring the first defendant from taking any action under various loan agreements. The defendants have submitted a declaration of commitment pending the granting of the application for interim measures.
4. The author is 45 years old and works as a full-time teacher with his wife. It is the sole legal owner of the corresponding properties and facilities. It has been argued that he is 20 years away from retirement and that the issues that led to his temporary financial difficulties are problems he can resolve over the course of his working life. His loans with the bank for loans secured by commercial real estate ran through August 2013 and October 2013 for loans secured by his primary residence.

5. The complainant suffered at times from severe anxiety and depression and claims that the bank was fully aware of this. It is not seriously disputed that the Bank had some knowledge of the applicants' depressed state, although the precise extent of this and why the applicant was unable to cope with some of his financial affairs at some of the relevant times in these proceedings is doubtful. The plaintiff states in the affidavit that the defendant had known since 2010 that he was suffering from an illness and that at that time he suffered a particularly tragic family event in which he and his wife lost their young son.

6. There is no doubt that the author had loan accounts with the bank, that the amounts advanced by the bank were secured, that the loans were in arrears and that the bank had the contractual right to appoint an insolvency practitioner. There are no technical objections to the manner in which the bank appointed the insolvency administrator in writing or to the type and legal effect of the guarantee documents themselves.

7. However, the plaintiff points out that his contractual relationship with the bank entails the bank's obligation to treat him fairly and equitably. In particular, it is argued that this obligation was imported from the Consumer Protection Code, the Code of 2012 (“the Code”) being the most relevant, and in particular its 2nd and 8th points, which, it is argued, imply an obligation on the bank debt collection department to allow you to process your approved arrears. He says that during the period that he was in default, and without his knowledge or notification, a trustee was appointed to the Kenmare property and that a trustee was appointed to the Limerick property when he attempted to clear the arrears to settle. Nominations are illegal under these circumstances.

8. Mr Ryan says he has been trying to get in touch with the bank since 18 December 2013 but the bank's only or main concern is to repay its loans when they exit the Irish market and he is not acting accordingly. Confidence in the sense that you "defaulted" on your loans only to call them back and "exploit the bonds." He says he has offered to pay most or all of the arrears and sell the Limerick facility through a self-assessment sale and that the bank has a common law and code obligation to fully accept its proposals.
The sequence of events leading up to courtship.
9. The Bank sent reminder letters on 11 October 2013 and 8 November 2013 in relation to the Kenmare Loans and on 25 November 2013 in relation to the Limerick Loans while the Bank's plaintiff was ill and unable to negotiate. with your contribution. During the acute phase of his illness between September 11, 2013 and January 6, 2014, i.e. a break of almost four months, a communication error occurred. The main point of the complainant's argument is that the bank failed to properly and fully undertake to him, and in particular to its proposal to settle his overdue claims of €40,000. The Claimant argues that under the Code, and by implication common law, the Bank should not simply consider any suggestions it makes to deal with arrears, but should consider them positively, and that the Banco Uma Complaints Procedure is available because the When the Credit Committee rejected his proposals, they did not give him natural justice by suggesting that the complaint be reviewed by a bank official rather than an independent third party. He says that the bank has not been as direct in his discussions with the bank after January 14, 2014 and that some discussions have taken place following the appointment of trustees without his knowledge of those appointments.
The complaint in the process
10. The complainant disputes the appointment of liquidators on the grounds that there was (a) an implicit condition of good faith (b) an implicit condition of the Code that the bank would give it the opportunity to deal with the arrears before it was appointed a liquidator and (c) that the bank has appointed a trustee for a purpose other than the collection of its debts. The Claimant argues that under the provisions of the Irish Constitution and the European Convention on Human Rights Act 2003, the implied terms must be in common law and that fair legal principles are also implemented in his contractual relationship with the Bank, which requires the Bank to be at to make significant commitments in their attempts to cope with delays. The applicant further alleges that his constitutional rights and the rights conferred on him by the 2003 European Convention on Human Rights have been violated because he was not given an opportunity to express himself, i. H. he had been denied the opportunity to be heard. He says that an obligation on the part of the bank similar to an obligation of natural law is introduced into the relationship, and for this purpose there is an explanation in paragraphs. 49 and 51 of his affidavit dated March 6, 2014, indicating that the bank did not grant him a right to a fair hearing.
Is the complainant a consumer?
11. The author argues that he meets the broad definition of a consumer in the Consumer Credit Code 2012 and is a “personal customer” within the meaning of that definition. You are not in the investment or real estate development business and your purchases were for personal financial and tax purposes. It is based on the judgment of Barrett J. in Ulster Bank v. Healy 2014 IEHC 96 where the judge found the defendant to be a consumer within the meaning of the Consumer Credit Act 1995 inserted by the Central Bank and Financial Services Authority of Ireland. Act 2004, and that he was "acting outside of his business, trade or profession" as he "had made personal investments ... to meet the retirement or other future needs of himself or his family". I accept the evidence presented by Barrett J. and also note that in the interim period I must listen to plaintiffs' argument to the fullest. Consequently, I believe that you have made a contentious case and, taking into account the case law, that you are a private consumer and are entitled to the protections of the Code.
The legal effect of the Consumer Protection Act 2012
12. The complainant argues that the Code, in particular clauses 2.1 and 2.8 and clauses 8.2 and 8.3, imposes a duty on the bank to behave honestly and fairly in dealing with it as a retail customer and in dealing with late payments. He notes that this court, taking into account the fact that it is arbitrary that he is a consumer, can include certain conditions in his contractual relationship with the bank and in the guarantee documents.

13. The Code has been adopted by the Central Bank in accordance with the requirements set out in, inter alia, Section 117 of the Central Bank Act 1989. Section 117(1) requires a holder of a banking license to comply with the provisions of this Code. Failure to comply with an instruction to a Licensee to comply with the provisions of a Code is a criminal offense punishable by summary judgment or criminal prosecution. The Central Bank also has the power to impose administrative sanctions for violation of any provision of any of its codes.

14. The Legal System makes no reference to any impact that breach of any of the Codes may have on the contractual rights of a bank and its customers or on legal action to enforce those rights. For this reason, the legal status of codes issued by the Central Bank under its statutory regulatory powers has been the subject of what Hogan J. described in Irish Life and Permanent v. Duff & Anor 2013 IEHC 43 as "cross-currents of court opinion". . The issue has been characterized by Breslin in Section 4.102 of its Irish Banking Act 3rd Edition as whether the provisions of a "soft law" code are devoid of legal effect and do not give rise to a civil action for damages. Hogan J. in Irish Life and Permanent plc (t/a Permanent TSB) v Financial Services Ombudsman and Thomas 2012 IEHC 367 said that codes "are not exactly a kind of soft law, d enforceable" and that codes "certainly reflect the mindset of regulators in assessing appropriate standards for credit institutions", but this thesis in no way answers the question whether codes can establish rights or obligations between banks and their legal clients, in particular Gilligan J. in Freeman v Bank of Scotland (Ireland) Ltd et al 2013 IEHC 371 suggested that the status of the codes "is not absolutely clear and may depend on the circumstances of each individual case".

15. Birmingham J. in Zurich v. McConnon 2011 IEHC 75 concluded that Mr. McConnon was not actually a consumer, but he addressed the issue of how breaching the relevant code might affect contractual obligations by stating the following obituary:

"Any indication that a breach of the code voids the contract or relieves the borrower of payment is completely absent."
16. In Stepstone Bank v. Fitzell 2012 IEHC 142 Laffoy J. refused to dispose of possession of the defendant's primary residence because the plaintiff bank failed to comply with the relevant regulations. This was an app under Section 62(7) of the Registration of Deeds Act 1964 which expressly gives the court the freedom to grant possession. This subsection includes the following:
"When repayment of the principal amount secured by the deed of collection is due, the registered owner of the collection or his personal representative may summarily apply to the court for possession of the property or part of the property, and in the application the court may, if it thinks fit, , to deliver possession of the property or any part thereof to the applicant and the applicant, once obtaining possession of the property or any part of it, shall be deemed to be the mortgagee in possession.
Laffoy J. said the following:
"It is impossible for me to agree that in possession of habitual residence proceedings in enforcement or encumbrance to which the current Code applies, a court is asked to issue an order likely to result in the eviction of a person's residence shall have the right to know that the requirement of Regulation 47 imposed pursuant to statutory authority has been satisfied.” .
17. Hogan J. in Irish Life and Permanent Plc v. Duff [2013] IEHC 43 also addressed the issue of the impact of central bank codes on contractual obligations and rights. He also refused to issue an injunction over ownership of the primary residence because the bank failed to comply, or at least fully comply, with the Code's requirements before the ownership process began. Hogan J. specifically said he refused to issue the title deed in the exercise of his discretion, which he accepted from the authorities in the case of unregistered properties, although mortgages on unregistered land prior to 2009 were owned. ensure legality. Qualification. A court order is required for all mortgages per s after December 2009. 97 of the Land and Transfer Law Reform Act 2009.
18. Ryan J. in ACC Bank Plc v. Deacon & Anor [2013] IEHC 427 suggested that Laffoy J. and Hogan J.'s decisions to deny legal protection arose on grounds specific to "family home repossession claims." He said violating the code, which is relevant to dealing with small and medium-sized businesses, "does not eliminate borrowing or constitute a defence."
Does a 2012 Code Violation Give the Offender a Cause of Action?
19. Recent jurisprudence can be reconciled based on the fact that the two 'streams' have evolved into different types of remedies: in matters of possession the court has exercised discretion established in previous cases or based on precedent; in debt cases, the court enforced contractual rights where there was no discretion. In all of these cases, the court considered the suggestion that a violation of a central banking code might give rise to a defense or raise an issue, subject to the court's discretion to grant or deny remedy, but did so in a vastly different context and exercise different types of powers, one where fair discretion principles came into play and another where common law remedies and rights were found. I discuss the interaction of these elements below.

20. The most relevant cases are the judgment of Hogan J. in Life and Permanent Plc v. Duff and that of Laffoy J. in Stepstone Bank v. Fitzell, where the court accepted that the defendant was a private consumer or borrower. These questions were raised before the court in a motion for possession in Irish Life and Permanent Plc v. Duff of Unregistered Land and in Stepstone Bank v. Fitzell registered country. The court, under common law and now the 2009 Act, has express discretion to grant or deny possession and to impose conditions it sees fair, although this is a discretion exercised in light of settled case law. Laffoy J.'s decision in Stepstone Bank v. Fitzell was, in my view, correct in asserting that the court could and should exercise its discretion to ensure that the plaintiff bank meets its obligations, since failure to do so would have the corollary of the bank's enforcement 'disappearing'. Central Bank of Bonds. Also in Life and Permanent Plc v. Duff Hogan J. specifically refused to file a writ of possession in the exercise of his discretion. In the other cases mentioned above examining the role of central bank codes, the courts did not apply discretionary powers or principles, but were asked to make judgments about contractual rights, and in each case the court found that the violation stemmed from the Code correspondent had no effect on the right to deduct.

21. The codes of conduct of the central bank may, in the light of these powers, inform a court exercising its discretionary powers and a court acting judicially and with due regard to the interests of the obligor and the mortgagee to order the possession or to modulate the effect of the Order of ownership, taking into account the regulatory requirements imposed by the relevant code. The power of the court to make a disposition expressly implies an element of discretion and ipso facto fairness for both parties in deciding to make a disposition and in determining the terms of that disposition. In my view it does not matter that the premises are a private principal residence and the key fact is that the court's powers are discretionary. However, discretionary power does not simply become the basis upon which a plaintiff may seek relief, whether in the form of an injunction, a declaratory judgment, or a claim for damages. The discretion belongs to the court, not to that which, as plaintiff's counsel tried to argue, to that which is introduced into the contractual context, or to that which can of itself establish a cause of action.
Conclusion on the code
22. In my view, it cannot be said that the codes issued by the Central Bank subject the liabilities of the authorized banks to debtor justice. Compliance requirements are those that the court will consider in the exercise of its discretion, including when issuing orders to take possession of insured premises. Failure to comply with a relevant code can at best offer a defense to a borrower in an individual case, although the extent to which this can occur is, in light of the Birmingham J. judgment in Zurich v. . McConnell, where the judge pointed out the obvious fact that a code violation does not specifically cancel a loan. In my opinion, a breach of any provision of the Code does not provide the borrower with a substantive basis for any legal remedy. It may sound like equity or defense, but it is not an acceptable cause of action for a common law plaintiff.
An implied term?
23. Alternatively, the plaintiff seeks to enforce the rights which it claims are implicit in the contract between itself and the bank and which the plaintiff claims are granted under the terms of the Constitution, the European Convention on Human Rights and equity be introduced into common law.

24. In paragraphs. 75 to 77 of his affidavit of March 6, 2014, the author declares that certain obligations and corresponding rights exist as necessary indicators of the relationship between him and the bank. These can be briefly summarized as follows:

(a) That the Bank has a duty to deal with him honestly, fairly and professionally, with due skill and care and in his best interests.

(b) that the Bank has an obligation to deal in good faith with him.

(c) That the bank has a duty to ensure that it has been properly consulted in relation to loans.

(d) That the bank was obliged to inform him of its intention to call in the loans and to require collateral for those loans.

(e) That he has the right to be heard in relation to the loans and guarantees, to present his case before the Bank and to a reasonable and fair remedy against any decision of the Bank.

(f) The Bank has not appointed a trustee with proper purpose and/or in good faith.

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(g) That the actions of the Bank are unlawful and in violation of its common law rights and arise as described above.
A fiduciary or special relationship?
25. Neither the documents before me nor Plaintiff's counsel have argued that the Bank owes the Plaintiff any fiduciary duty either as a borrower or in providing security for its loans. Accepted as correct legal statement in judgment of Hogan J. in Irish Life and Permanent Plc v Financial Services Ombudsman and Thomas [2012] IEHC 367, para. 46 that "except in the special case that the mortgagee takes possession of the mortgaged assets, it is clear that the obligor/mortgage relationship is not a fiduciary relationship." There is nothing in this case to suggest that the plaintiff relied on the bank's advice in obtaining the loans and setting up the guarantees and that there was no fiduciary or other special relationship between the bank and the customer leading to anything Hogan J. described the case as "additional good faith obligations and full disclosure." The contract concluded between the plaintiff and the bank was a contract concluded in the normal course of relationships with bank customers, nothing in that relationship implying any additional obligations beyond those that normally exist in that relationship; there is no special relationship.
Term implicit in common law?
26. The author wants the court to include duties and rights in the contractual relationship between him and the bank, and in particular I take the statement in paragraph 71 of the statement that the bank was obliged to act in the best interests of the borrower. There is no doubt that the bank had a duty to deal fairly, professionally and honestly with the applicant, but the bank's primary right in relation to its guarantee is expressly described in the guarantee documentation itself, i.e. H. a right to lodge a complaint. Enforcement of the guarantee by appointing an insolvency administrator. The Complainant asks the Court to include in the contract provisions in Section 6(2) of the Mortgage and Encumbrance Documents an obligation to ensure that he is “properly consulted” in relation to both the loans and the intention to appoint a trustee " became . , and that he had the right to be heard in relation to the loans, to present his case to the bank and that the bank had a duty to deal with him fully.

27. I appreciate the strong testimony of Finlay Geoghegan J.'s judgment in Irish Bank Resolution Corporation (In Special Liquidation) v. Morrissey [2013] IEHC 208, where in par. 101, specifically stated the limit of the court's jurisdiction as follows:

“Before addressing the issues raised by the Kelly J Order, it is important to emphasize the limits of the court's jurisdiction. This is a dish. Its task is to determine the rights and obligations of the parties under the law. “Law” in this context includes the relevant constitutional, statutory and customary law, in particular the law of contracts and the applicable principles of equity, in particular in relation to the defense of statutory forfeiture. Unfortunately, based on the evidence, mainly from Mr. Morrissey, there appears to be a significant gap between his business expectations in dealing with the bank and the written terms of the contract to which he has agreed. Based on his own evidence, he described "a gap between understanding and consent". Unless the former is enforceable under applicable law or equity, it cannot be recognized by the court and must determine and enforce the rights and obligations of the parties under the law. ”
28. In this case, Finlay Geoghegan J. dismissed the allegation that the relationship between the bank and Mr. Morrissey was one of fiduciary relationship, noting in particular that the bank did not seek or offer advice or take any other steps outside of the relationship of the normal business relationship between a lending bank and a borrower conducted by an experienced businessman or businessman. Although Mr. Morrissey was an experienced borrower, and although I have stated for the purposes of the filing before me that Mr. Ryan, the plaintiff in this case, was a personal borrower, there is nothing in the relationship between the personal borrower and the bank that is not mattered more than a common law duty introduced into all contracts of basic honesty and good faith.
29. In my view, the plaintiff is seeking a preliminary opinion from this court that in the relationship between him and the bank there is an obligation on the bank to deal with him with a degree of reasonableness or equity that is more likely to be found in public law . I accept the arguments set out in paragraph 102 of Finlay Geoghegan J. in Irish Bank Resolution Corporation (in Special Liquidation) v. Morrissey, where he said the following:

“…this is not a dispute involving a court review of how the bank made the decision, Mr. Morrissey, and determining the claim or the fairness or fairness of the claim as the court would in a judicial review of a public entity would do to which the principles of public law apply. Such a claim will not and could not be made in relation to decisions taken by the Bank in 2009/2010. Some of the remarks made on Mr. Morrissey's behalf appear to address principles of public policy that do not apply. ”
Consequently, I cannot accept that the obligations of which they are part can rightly be regarded as arising from a contract. Rather, the terms at issue may be described as "overriding obligations", to use a phrase used by Hogan J. in Irish Life and Permanent Plc v Financial Services Ombudsman, and Thomas and I do not accept that they could be implied by the related contract. between the applicant and the bank, unless there is a special relationship.
good faith?
30. However, I am convinced that the law will impose a duty of good faith in the relationship between the mortgagee and the borrower. The law states that a bank can sit back and choose not to pledge their guarantee, but once they take enforcement action they must act fairly. These principles result from the nature of the security relationship and can result in the decisions and actions of a mortgage lender having disadvantages for the borrower. Implied terms are terms by which the mortgagee is not acting arbitrarily or in a way that would unduly harm the borrower and would meet any common law “bystander” test and would be terms that either party would readily agree to. as inferred from the nature of the relationship and common sense. The implied terms do not go so far as to establish the good faith duties that may arise in a fiduciary relationship, and I am not satisfied that the terms the author seeks to imply in this case can be implied by law . together.
A duty of care?
31. The applicant also argues that the bank owed him a duty of care not to appoint a receiver or attempt to enforce his guarantee without giving him the opportunity to be heard and to process the arrears. Hoffman J. in Shamji & Ors v. Johnson Matthey Bankers Limited & Ors [1986] BCLC 278 described the problem as follows:

“It seems to me that the appointment of a director involves an inherent conflict of interest. The purpose of the power of attorney is to allow the mortgagee to take the management of the company's assets away from the administrators and entrust them to a person chosen by the mortgagee. This power is granted to the mortgage lender by the collateral documents on absolutely unconditional terms. It seems to me that a mortgage lender's decision to exercise power cannot be challenged, except perhaps in bad faith. There is no room for the implication of a condition that the mortgagee have an obligation to the mortgagee to "consider all relevant matters" before exercising power. Unless you can read such a qualification in the security documents, I do not think there can be any further tort obligation... I should add that Harman J. once remarked that the mortgagee's analogous power of repossession may be exercised before the ink on the mortgage dry'. In fact, there has never been any suggestion that the right to exercise power, as opposed to how the mortgagee treats mortgaged property once it is in possession, constitutes a duty of care to the lender. ”
I agree with that analysis and am not satisfied that the plaintiff can show that a duty of care arises from the bank's decision to appoint a receiver. In the case of a sale, the trustee or the bank may have certain obligations which are not the subject of this order.
The Role of Inheritance
32. Plaintiff contends that certain terms will be included in the equity of the contractual relationship with the bank. I note Hogan J.'s persuasive analysis of the so-called "fusion" of law and equity in his recent decision in Meagher v. Dublin City Council [2013] IEHC 474, par. 27 of the same, where it says:

“Perhaps the mere fact that such a distinction remains embedded in the legal system should give us pause before sweeping claims of substantive merger can be properly accepted. It should also be noted that many principles of equity were originally intended to impose certain duties on persons such as trustees and fiduciaries to ensure that they exercise their powers in accordance with the overriding principle of good faith, although such principles may change over the course of time Equality rules were applied more generally and more extensively to soften the rigors of common law. However, these higher duties have been imposed by the Courts of Chancery (at least in part) because of the special obligations that trustees or trustees have to third parties by virtue of their special relationship with such persons. However, it would not necessarily be appropriate to enforce these higher standards in the ordinary area of ​​contract and tort law, where these underlying principles will generally find little or no application, although this would be (or at least could be) a natural consequence of the. Merger. substantive right and equity”.
I accept that statement for the purposes of the present case as a correct analysis of the relationship between right and equity since the passage of the Judiciary Act 1877. The rights arising between this plaintiff and the bank are contractual rights in which equity was not a factor. The bank has an express contractual right to appoint a trustee and no principle of equity applies.
The purpose of appointing the administrator
33. The complainant argues that the trustee was not appointed for the sole purpose of collecting payment and relies on the statement of the Breslin Banking Act in Ireland (3rd Ed.) 2013, para. 15.04, where on the express statutory provision to that effect in Art. 96 of the Agrarian Reform and Transfers Act 2009. The statutory provision limits the power to appoint a trustee so that it can only be used for the protection of the mortgaged property or for realization in accordance with the provisions of this Act of the mortgagee's guarantee can be exercised. This section applies to mortgages created after the 2009 Act came into force and the relevant legal powers in the case of the mortgage and registered encumbrance are found in Section 19 of the Transfer and Property Act 1881, as expressly provided for by Clause 6( 2) each security document amended to those specified in p. 20 of this law. The power to appoint a trustee was in each case exercised after the mortgagee had been required to pay and there was an express power to appoint a trustee "at any time thereafter". There is no legal or contractual restriction that the power to designate a recipient may be exercised solely for the purpose of warranty enforcement, but I accept that the nature of the contractual warranty relationship is of legal importance. usual such restriction. .

34. The complainant alleges that the bank is exiting the Irish market and that this has not been seriously contested. It is suspected that the bank is acting in bad faith in appointing an insolvency administrator and that this is not done with a view to enforcing its guarantee. I have heard no convincing evidence that the bank appointed the administrator of these properties for reasons other than recognized arrears on the plaintiff's loans. The bank has interacted with the author since July 2013. There was a six-week gap between July 2013 and September 11, 2013, and a nearly four-month gap between September 11, 2013 and January 6, 2014, which she has to account for at the author's feet, although it is admitted that the author was ill during this time. I have no evidence of bad faith and the loans were so overdue that the express power of attorney became exercisable.
European Convention on Human Rights Act 2003
35. The plaintiff also claims that certain rights are introduced into his contractual arrangement with the Bank by the 2003 European Convention on Human Rights. The Irish courts have held that the ECHR has no direct effect on Irish law and the High Court has said so in McD. v. L. [2009] IESC 71, where Murray C.J. clarified that the Convention itself is not directly enforceable under Irish law and consequently no action for breach of any provision of the Convention can be brought before the Irish courts. Consequently, and based on the clear authority of the courts over the effects of the Convention, I contend that the applicant has prima facie produced no controversial evidence that he has rights under the Convention that can and must now be protected. through an injunction.

36. It has not been argued in court that the Bank owes the plaintiff any specific rights in the form of further obligations under the Irish Constitution and even if such an argument were made I think it would fail in view of the plaintiff's assertion of such a claim does not rely on any particular constitutional provision.
37. In short, the bank and the plaintiff entered into a formal deed of guarantee which enabled the bank to contractually appoint an insolvency practitioner should certain specified events occur. Common law imposes certain limitations on the Bank's exercise of this right, but these are no more than the Bank's obligation to act fairly and honestly. The bank had the right to appoint a receiver after filing a claim and no allegation was made that the proper claim was not filed. I reject the assertion that an obligation on the bank to behave appropriately, to advise or even fully advise the customer, or to act in the interest of the borrower can be introduced into the contractual relationship between the parties. A duty of care may well arise where the trustee or bank sells one or both of the secured properties, but such a duty has not yet existed in these circumstances. What the author claims is that he had a right to be heard, that the offer he made to lift the delay should have been upheld by the bank, that the