IESC 6 · Supreme Court

THE SUPREME COURT

Please note this judgment is subject to signature and formal approval

[Appeal Nos: 2019/120, 2019/121 and 2019/122]

Clarke C.J. O’Donnell J. McKechnie J. Dunne J. O’Malley J.

Between/

Ruth Morrissey and Paul Morrissey

Plaintiffs/Respondents

and

Health Service Executive, Quest Diagnostics Incorporated and Medlab Pathology Limited

Defendants/Appellants

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 19th of

March, 2020. 2

1. Introduction

1.1 The tragic circumstances underlying this appeal must be acknowledged. The

first named plaintiff/respondent (“Ms. Morrissey”) is terminally ill from cancer. She

had undergone screening in accordance with the National Cervical Screening

Programme (“CervicalCheck”) in August 2009 and again in August 2012. In both

instances, her smear test was reported as negative for abnormalities and she was

provided with a clear result. However, in May 2014, Ms. Morrissey attended at her

G.P. following symptomatic bleeding and was referred for further testing. A biopsy

and an MRI scan subsequently disclosed the existence of cervical cancer.

1.2 Following this diagnosis, the 2009 and 2012 smears provided by Ms.

Morrissey were audited and it was reported that the original results provided in

respect of both tests were incorrect. By 2015, the results of the audits had been

communicated to CervicalCheck. However, their results were not disclosed to Ms.

Morrissey until mid-2018, when Ms. Morrissey herself made inquiries as to whether

there had been an error in her case.

1.3 Ms. Morrissey and the second named plaintiff/respondent, her husband, (“Mr.

Morrissey”, and collectively, “the Morrisseys”) commenced these proceedings

thereafter. The first named defendant/appellant (“the HSE”) is, of course, the body

charged with the provision of health services in Ireland and, in the particular context

of these proceedings, with the promotion of the CervicalCheck scheme. It will be

necessary to go into the precise role of the HSE in due course, for its legal obligations

in respect of CervicalCheck are one of the issues which will need to be addressed.

1.4 From 2008, the HSE contracted out the testing of samples to various

multinational firms. The second named defendant/respondent, Quest Diagnostic 3

Incorporated (“Quest”), carried out an examination of the sample taken from Ms.

Morrissey in August 2009, in one of its laboratories located in Grand Rapids,

Michigan in the United States. The third named defendant/respondent, Medlab

Pathology Limited (“Medlab”), tested the sample provided in August 2012 in one of

its laboratories situated in Co. Dublin.

1.5 The High Court (Cross J.), in a judgment delivered on 3 May 2019 (Morrissey

& anor v. Health Service Executive & ors [2019] IEHC 268), gave judgment in favour

of the Morrisseys in the sum of €2,152,508 against all three defendants and an

additional sum of €10,000 in nominal damages as against the HSE in respect of its

failure to notify Ms. Morrissey of the results of the audits of her earlier smear tests.

1.6 Each of the defendants/appellants sought leave to appeal directly to this

Court. An oral hearing ensued. For the reasons set out in a judgment of this Court

(Morrissey & anor v. Health Service Executive & ors [2019] IESC 60), leave to

appeal was granted although the issues became somewhat more confined in

circumstances described in that judgment.

1.7 It is, therefore, appropriate to set out the basis on which leave to appeal was

granted, for that defines the parameters of this appeal. Before this Court, it was

outlined that there were a number of other cases pending before the High Court which

have arisen in a similar factual context to that of these proceedings. It was also

stressed that the work of the CervicalCheck Tribunal, as established by law in July

2019, will involve the assessment of legal liability and will therefore require the

application of the same legal test as that determined in the courts. Thus, it was clear

that the Tribunal would be significantly constrained in progressing its work if there

remained doubt about the proper test to be applied in determining legal liability. 4

While it is usually appropriate that an appeal is heard in the Court of Appeal, where

narrowing and clarification of the issues of importance can take place, here this Court

held that the question of the standard of care to be applied in screening cases met the

constitutional threshold for leave to appeal generally and, having regard to the

urgency which attends its clarification, also met the additional criteria necessary to

grant leapfrog leave.

1.8 In respect of whether the other grounds of appeal urged by the defendants

justified a grant of leapfrog leave, it was held that the interests of justice required

granting that wider leave. It should be noted that both Quest and Medlab had agreed

at the oral hearing to drop certain grounds of appeal as advanced in their applications

for leave. At para. 4.7, the Court held:-

“Considering the standard of care grounds in the abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly unsatisfactory. I am also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other grounds as the price for obtaining leapfrog leave. Most of those grounds are sufficiently closely connected with the standard of care grounds in any event such that this Court is likely to need to at least get into the facts relevant to those grounds to some extent. Insofar as the causation and, in the case of Medlab, quantum grounds are raised, it seems to me that these issues can most conveniently be dealt with in the same appeal.” 5

2. The Broad Issues

2.1 Before setting out the broad categories of issue which arise on this appeal, it

may be useful to make one general observation. At a superficial level, it might be

thought that a case such as this ought to be relatively straightforward. If a person gets

the all-clear as a result of a screening process and subsequently develops the disease

which the screening process was intended to detect, then it might be felt that it must

be fairly obvious that someone was at fault. However, that does not necessarily

follow.

2.2 I would emphasise that not all of the matters which I am about to note will

necessarily arise in each case and all of them do not arise in this case. However, there

are a range of reasons why it might, at least in theory, be the case that a person who

obtained a clear result on a screening process might subsequently be diagnosed with

the relevant disease in the absence of any negligence by any party.

2.3 First, there will almost always be some period of time between the test which

led to a clear result and the diagnosis of the disease in question. Depending on the

length of that time and the likely progress of the relevant disease, there may, in some

cases, be a possibility that whatever the relevant indicators for the disease in question

are, they may not have been present at the time of the screening process but have only

developed at a later stage. Next, in the context of a screening process such as that

with which this Court is involved on this appeal, it is always possible that a sample

taken may not contain any of the type of suspicious material which ought to have

given rise to a result suggesting that the test was not clear. In other words, suspicious

material might not actually have been captured during the taking of the sample, or at

least captured in a sufficient quantity that it would show up during the screening 6

process. Third, it should be noted, for reasons which will be addressed in this

judgment, that even screening processes which operate at the very highest standards

can give rise to different results by competent screeners. In addition, a retrospective

review of the screening process after someone has been diagnosed may well give

different results, possibly influenced by the difficulties encountered with hindsight. It

is thus possible, as the trial judge in this case found, that a competent screener

exercising ordinary care might give a clear result, even in circumstances where it

might transpire with the benefit of hindsight that there could have been suspicious

material on the slide. For these and doubtless other reasons, it is not simply a case of

inferring from the fact that someone obtained a clear result but subsequently was

diagnosed with the relevant disease that there was necessarily negligence on

someone’s part. It follows that the assessment of whether there was negligence in any

particular case will involve findings of fact by the trial judge based on evidence. That

process may well be both difficult and complex and each case will, necessarily,

depend to a significant extent on its own facts.

2.4 Against that background, I should start by noting that, at the oral hearing,

counsel on all sides were asked to agree that five sets of issues arose between the

parties. I did not understand there to be any disagreement about that proposition,

although there are undoubtedly sub-issues potentially arising in some, if not all, of the

categories.

2.5 The first issue concerned the proper approach to negligence in a case

involving medical screening such as this. As will become apparent, the trial judge,

relying on the case law of the United Kingdom, had applied what he said was an

“absolute confidence” test, although it is important to understand that the trial judge 7

was quite specific about the precise aspects of the case to which that test was to be

applied. The potential question which arose was as to whether the trial judge could be

said to have applied a test differing from the established case law of the courts in this

jurisdiction as regards the legal standard of care in medical negligence cases, which

finds its clearest example in Dunne (an infant) v. National Maternity Hospital [1989]

I.R. 91. However, in the course of the oral hearing, it became clear that there was no

significant dispute between the parties on this question. However, I am mindful of the

fact that a significant amount of public comment, some of it unfortunately

misinformed, followed from the judgment of the High Court and I do, therefore,

propose setting out the position in the hope of bringing some clarity to a potentially

controversial issue.

2.6 Second, Quest raised certain points concerning the findings of the trial judge

which led to a conclusion that it was negligent in the way in which it carried out its

functions. In fairness to counsel for Quest, it was not argued that there was no

evidence from which the trial judge might have reached the conclusions which he

ultimately did in this case. However, it was said that there was a significant failure of

the trial judge to properly engage with certain aspects of the defence case, such that

the finding in negligence against Quest should be set aside.

2.7 Third, there were similar issues raised by Medlab concerning the finding of

negligence against it. In that context, it is of some relevance to note at this stage that

the finding against Quest related to the reading of the slides concerned. It was said

that had such reading been properly carried out, a negative result should not have

ensued. A like claim was made against Medlab, although it is of some importance to

note that the trial judge rejected that aspect of the claim against that party. However, 8

it is clear that there may be circumstances in which it is inappropriate to give a result

in respect of a particular screening where the cell count of the relevant sample is

inadequate to allow for its proper assessment. The finding of negligence against

Medlab related to what was said to be negligence in assessing the smear in question as

being adequate for such assessment. However, points are put forward on behalf of

Medlab to suggest that, as in the finding of negligence against Quest, there was a

failure to properly engage with certain aspects of the case which it put forward in that

regard.

2.8 Fourth, there were issues raised by the HSE concerning the finding of the trial

judge that the HSE was liable in negligence arising from the manner in which both

Quest and Medlab carried out their tests. The trial judge found that the HSE was

primarily liable in respect of the way in which the tests were carried out but also held

that the HSE was vicariously liable for the negligence found against the two

laboratories. The HSE appealed against both of those findings.

2.9 Fifth, and finally, Medlab raised some questions concerning particular

elements of the damages awarded by the trial judge. Neither of the other defendants

has raised questions as to damages in their appeals.

2.10 However, in order to properly understand both the approach of the trial judge

and, more specifically, many of the issues which arise before this Court, it is

appropriate to set out in a little detail the history of CervicalCheck and, in particular,

the way in which it works in practice. 9

3. CervicalCheck

3.1 In 2008, the National Cancer Screening Service (“the NCSS”) was responsible

for the establishment of the CervicalCheck programme, which provides free smear

tests for women between the ages of 25 and 60 in order to regularly screen for early

signs of the development of cervical cancer. In 2010, the Board of the NCSS was

dissolved and its functions were assumed by the HSE, as part of its National Cancer

Control Programme.

3.2 From 2008, the testing of the samples was contracted out by CervicalCheck to

various multinational firms, including Quest and Medlab, which provided a faster

service than that of Irish labs. These contracts provide that the tests are to be carried

out in accordance with the NCSS Guidelines for Quality Assurance in Cervical

Screening, which require the use of the Bethesda System for Reporting Cervical

Cytology (“the Bethesda System”).

3.3 As part of the programme, audits are conducted in respect of the screening

histories of those patients who receive a diagnosis of cervical cancer. Laboratories

conduct a review of previous smears and their results where cancer is subsequently

detected. The purpose of these audits is educational, for the screeners and the

laboratory to look into the quality of the testing and to make any improvements

necessary.

3.4 Smear tests are not diagnostic tests, but rather are screening tests to determine

whether the cells examined are healthy or whether they may have been contaminated

by the HPV virus. Where high-risk HPV is carried in the body for some two to three

years, a pre-cancer will develop. This pre-cancer may be high grade or low grade. If a

significant number of high grade lesions are not detected and treated, this will 10

progress and develop into an invasive cancer. The invasive cancers are typically either

squamous cell tumours or glandular cell tumours. It was accepted in evidence by the

High Court that such pre-cancer will usually progress to invasive cancer over an eight

to twelve-year period of time.

3.5 Samples of cells are taken from the cervix by a patient’s GP, using a system

known as Liquid Based Cytology, which are then reviewed by a laboratory. In the lab,

a slide is made from the sample using the ThinPrep Imaging System. The slide is

then examined by a qualified cytoscreener, who must first assess the sample for the

adequacy of its cell count. For a sample to be considered adequate, as required by the

Bethesda System, there must be a minimum number of 5,000 well-visualised

squamous cells. Most samples will clearly be seen to be adequate on a quick

overview, but in the event of any doubt, the slide must be assessed for adequacy using

the ThinPrep method prescribed by the Bethesda system.

3.6 The screener then examines the cells for abnormalities at various

magnifications. If any abnormal cells are detected, irrespective of the adequacy of the

sample, the slide must be classified as abnormal. The terms of the contracts agreed

between CervicalCheck and both Quest and Medlab provided that laboratories were to

screen samples using one of the following processes; a full manual primary and

secondary screening; a full manual primary screening and rapid review rescreening; a

full manual primary and rapid preview screening; or one of the above options with

automated-assisted screening in place of manual screening.

3.7 The apparently uncontested evidence before the High Court suggested that the

practice of the laboratories operated by Quest at the relevant time in respect of those

slides which were reviewed under its contract with CervicalCheck was that two full 11

manual screenings of each slide took place. All parties agreed that the reports of the

Scoping Inquiry into the CervicalCheck Screening Programme, as conducted by Dr.

Gabriel Scally (“the Scally Reports”), could also be considered by the Court. The

Scoping Inquiry was established by the Government in 2018 in order to examine and

establish the facts surrounding the issues which had recently come to light in respect

of the operation of CervicalCheck. I do note that a somewhat different description of

these procedures appears in the final Scally Report, published in September 2018. I

should emphasise that a court can only consider facts based on the evidence presented

to it. It may well be the case that, for the purposes of these proceedings, nothing turns

on the difference between this aspect of the evidence presented to the High Court and

the relevant description contained in the Scally Report.

3.8 However, it is again important to emphasise that, where a difference on the

facts is potentially relevant to the outcome of the case, it is important that sworn

evidence is presented in respect of the competing positions and that any relevant party

is given the opportunity to test the competing evidence before the judge. It is also of

particular importance to emphasise that the function of a trial judge is not the same as

the function of a person preparing a report. The trial judge is only required to make

findings of fact in relation to questions which are relevant to determining legal

liability. Trial judges sometimes specify additional facts by way of background or to

provide context, but the precise accuracy of such facts is only important where the

facts in question have at least the potential to influence the outcome of the case. In

that context, I would draw attention to the observations of this Court on the question

of whether it is necessary to correct factual errors which are not material (see, in that

regard, the judgment of this Court in Walsh v. Minister for Justice and Equality

[2019] IESC 54). 12

3.9 Be that as it may, it was found by the trial judge that it is the practice of

Medlab that a primary manual screen is first conducted by a cytoscreener. If this first

screen highlighted any areas of suspicion, then a full manual rescreening is conducted.

However, if no areas of suspicion are detected by the first screener then there is no

manual rescreening, but rather an automated analysis of the sample is conducted by a

machine using the ThinPrep Imaging System. If there are any areas of suspicion,

these are highlighted on the slide using a marker, and the slide is sent to a pathologist

in the laboratory.

3.10 The results of the tests can be graded by a screener using either the Bethesda

System of classification or the British Society for Clinical Cytology CIN terminology,

both of which result in the same consequences for the patient. The system used by the

laboratories contracted to CervicalCheck is the Bethesda System. The grades to

which a test should be marked, according to the Bethesda terminology are;

unsatisfactory/inadequate sample, negative/NAD (no abnormality detected), ASC-US

(atypical squamous cells of undetermined significance), LSIL (low grade squamous

intraepithelial lesion), HSIL (high grade squamous intraepithelial lesion), squamous

cell carcinoma, AGC/AGUS (atypical glandular cells/of undetermined significance),

glandular neoplasia or broken/damaged/expired slides. The categories of ASC-US or

AGC/AGUS denote borderline abnormalities in squamous and glandular cells,

respectively. These do not of themselves denote either cancer or pre-cancer but do

represent a non-negative finding and require at least that a patient is rescreened within

a short number of months.

3.11 The laboratories are obliged, under the terms of their contracts with the HSE,

to record the appropriate treatment alongside the results of the screening. If the test 13

finds that the cells are healthy, then the patient is referred for routine repeat

examination, which is usually every three years. Where the laboratory finds the cells

to be abnormal, then depending upon the result, the patient is either sent for early

repeat screening or else directly to the patient's doctor for colposcopy and, if

necessary, other treatment. In the High Court, it was held that the evidence of all

relevant experts was that in the event of any ambiguity, the lab ought to report the

cells as abnormal.

3.12 It is clear that the screening is not infallible. For example, actual abnormal

cells in the patient’s body may not have been located in the sample. In addition, as

noted by the High Court, there is also “room in the analysis for genuine and non-

negligent divergence as to whether particular cells are negative or potentially

alarming”. One study accepted in evidence before the High Court, which reviewed

the audits of over 6,000 English patients of the NHS Cervical Screening Programme

who had been diagnosed with cervical cancer, indicated that at least 44% (or 55%,

depending on whether samples labelled as ‘inadequate’ are counted) of their previous

samples were incorrectly marked as normal at first screening. It bears noting that this

statistic does not indicate that there is anything close to a 50% chance of the results of

a screening test being wrong. The lives of many women have been saved as a

consequence of the detection of abnormalities in the course of such screening

programmes. It should be emphasised that this study refers to an audit of the prior

tests of the small proportion of patients who had subsequently received a diagnosis of

cervical cancer. In order to ascertain whether there has been any negligence or breach

of duty in any case, each screening test would have to be assessed individually. 14

3.13 Against that background, it is appropriate to turn to the history of the

Morrisseys’ engagement with CervicalCheck.

4. The Facts of this Case

4.1 Mr. and Ms. Morrissey are married with one young daughter. In August 2009,

Ms. Morrissey underwent a smear test which was processed by Quest, as part of its

contract with the HSE, in its laboratory in Grand Rapids, Michigan. The sample was

reported to be adequate and the result was negative for any abnormality. Ms.

Morrissey was advised to return for a routine repeat examination in three years’ time.

4.2 Ms. Morrissey’s next smear test was taken in August 2012, and processed by

Medlab, in its laboratory in Co. Dublin. It was reported that the sample was adequate

for assessment and that there was no evidence of the presence of new abnormal

growth tissues. Ms. Morrissey was again recommended for routine recall in three

years’ time.

4.3 Following an investigation as a result of symptomatic bleeding in May 2014,

Ms. Morrissey received a diagnosis of invasive squamous carcinoma of the cervix. A

further smear test was carried out in 2014 following the diagnosis, which also

returned a negative result. There is no suggestion that this interpretation was

negligent. Surgery was required and the cancer appeared to have been treated

successfully. In 2018, there was a serious recurrence of the cancer and, tragically,

Ms. Morrissey has since received a terminal prognosis.

4.4 As a result of Ms. Morrissey’s 2014 diagnosis, audits were conducted of the

2009 and 2012 smears. In September 2014, the 2009 slide was reviewed by the senior

staff pathologist of Quest, who reported that the original test was incorrect and found 15

the slide to contain borderline nuclear abnormalities, marking it AGC/AGUS. Under

the heading in the report of ‘Factors likely to lead to false negative results’, nothing

was inserted.

4.5 The 2012 slide was reviewed internally by the medical director of Medlab in

October 2014, and this review also found that the original result was incorrect. Under

the heading of “Factors likely to lead to false negative results”, the laboratory listed

the fact that the sample was “scanty”, a term used to indicate an inadequate number of

cells on the slide. The 2012 slide was also externally audited by an independent

reviewer in 2015, who reached the same conclusion that the slide had been

inaccurately read and also classed the sample as “scanty”.

4.6 The results of the internal audit of the 2009 slide and the internal and external

audits of the 2012 slide were communicated to CervicalCheck by 2015.

CervicalCheck advised Ms. Morrissey’s treating doctor of the audit results in June

2016. These were not discussed with Ms. Morrissey. When national publicity in

relation to another patient arose in mid-2018, Ms. Morrissey herself made inquiries as

to whether there had been errors in her case. At this juncture, she was advised of the

results of the audit by her doctor, who apologised to the Morrisseys and indicated that

he simply “forgot” to tell them.

4.7 It is Ms. Morrissey’s case, as put before the High Court and again before this

Court, that had the 2009 and 2012 smears been accurately reported at first, then, as a

matter of probability, subsequent medical investigations would have disclosed a

precancerous condition, which would have been treated successfully, and Ms.

Morrissey would not be facing the same terminal prognosis which she has now

received. Each of the defendants deny liability and loss. Before the High Court, the 16

HSE admitted breach of duty limited to its failure to advise Ms. Morrissey of the

results of the audit, but denied loss on this basis.

4.8 It is appropriate next to turn to the judgment of the High Court.

5. The High Court Judgment

5.1 As a preliminary point, it is appropriate to draw attention to the timescale

within which these proceedings operated. Clearly, having regard both to Ms.

Morrissey’s medical situation and the fact that there are a large number of other

similar cases pending before the courts, it was considered highly desirable that

judgment should be given as quickly as possible.

5.2 Addressing the proper approach to be applied in a case involving medical

screening such as this one, the trial judge considered that the legal standard of care

and the factual standards and criteria to which the screener must adhere are different,

although interrelated, issues. The trial judge held that the classic statement of the

applicable legal standard of care in the context of medical negligence cases is set out

by Finlay C.J. in Dunne v. National Maternity Hospital, at p. 109:-

“1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care.

2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualifications. 17

3. If a medical practitioner charged with negligence defends his conduct by establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.

4. An honest difference of opinion between doctors as to which is the better of two ways of treating a patient does not provide any ground for leaving a question to the jury as to whether a person who has followed one course rather than the other has been negligent.

5. It is not for a jury (or for a judge) to decide which of two alternative courses of treatment is in their (or his) opinion preferable, but their (or his) function is merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant….”

5.3 The trial judge placed particular reliance on the decision of the English Court

of Appeal in Penney, Palmer & Canon v. East Kent Health Authority [2000] Lloyds

Rep Med 41 (“Penney Palmer”), a case which also considered the allegedly negligent

misreading of smear tests by cytology screeners. It is apparent that the trial judge

considered the approach of Lord Woolf M.R. in those proceedings to be entirely

correct, and thus it is appropriate to briefly set out the relevant aspects of that

decision.

5.4 In that case, the Court of Appeal expressly approved the legal test for the

standard of care in screening cases, as had been stated in Bolam v. Friern Hospital

Management Committee [1957] 1 W.L.R. 582. This, together with Bolitho v. City and

Hackney Health Authority [1988] A.C. 232, was considered by Cross J. to be the

English equivalent of the Dunne test. Lord Woolf M.R. then stated the following in 18

relation to the questions to be addressed in the context of determining the negligence

of a medical screener, at para. 27:-

“…the Bolam test has no application where what the judge is required to do is make findings of fact. This is so even where those findings of fact are the subject of conflicting expert evidence. Thus, in this case there were three questions which the judge had to answer:-

(i) What was to be seen in the slides?

(ii) At the relevant time could a screener exercising reasonable care have failed to see what was on the slide?

(iii) Could a reasonably competent screener aware of what a screener exercising reasonable care will observe on the slide treat the slide as negative?”

5.5 Further, Lord Woolf M.R. agreed with the finding of the trial judge in those

proceedings, to the effect that the experts in that case endorsed a requirement of

“absolute confidence”, being that, if there was any doubt in the mind of a screener as

to whether the slide was normal, the screener should not classify it as negative. Thus,

it was held by the Court of Appeal that a slide should not be classified as negative

unless the screeners had “absolute confidence” that it was so.

5.6 The trial judge in these proceedings adopted a modified version of the three-

stage approach set out by Lord Woolf M.R. and held that, before applying the Dunne

principles, the court must consider what is on the slides, a question of fact which must

be determined on the balance of probabilities. Following such a determination, he

held that the court must then consider the Dunne principles, in reference to the

screener’s practical obligation of “absolute confidence”, in the analysis of their slides.

This was elaborated on further at paras. 71 and 72 of the judgment of Cross J., as

follows:- 19

“71. I hold that “absolute confidence” is the screeners practical duty in relation to their analysis of what is on the slide and indeed the adequacy of the sample, and the legal issue is whether or not they have carried out that duty in accordance with the Dunne principles. These extra tests set out in Penney Palmer are combinations of factual and legal matters, but I accept that a screening programme especially one such as in Ireland which does not have annual retesting, is inherently deficient if screeners ascribe as normal, results in which they are in any doubt. Accordingly, to ascribe as normal, a slide which the screener has any doubt of that fact even if he legitimately believes it to be normal on the balance of probabilities, is to fall below the Dunne standards required of that screener. Whether the screeners were right not to have any doubt is a matter to be assessed at law in accordance with the Dunne principles.

72. In other words, if there is any room for doubt that the slide was normal and the screener ascribes a normal result to the slide then the screener is in breach of the Dunne principles as he has been guilty of such failure that no professional scanner of equally specialist or general status and skill would have been guilty of if acting with ordinary care. A screening programme cannot operate safely if screeners are left to judge the slides and whether they are safe merely on the balance of probabilities…”

5.7 The overall approach which the trial judge considered was appropriate in the

assessment of negligence in the context of medical screening was then set out at para.

74:-

“[T]he legal standard to be applied on the issue of the liability of the defendants is the Dunne test. Questions of fact, however, are for my decision on the balance of probabilities. The questions of fact include what was to be seen on the individual slides. Accordingly, as in Penney Palmer, the correct approach is to determine:-

(i) what was to be seen on each slide; 20

(ii) whether a reasonably competent screener at the relevant time could have failed to see what was on the slide; and

(iii) whether a reasonably competent screener in the light of what he or she should have observed, could have treated the slide as negative.

Questions (ii) and (iii) above and any issues as to adequacy are to be decided in the light of the ‘absolute confidence’ test and thereafter, the test for negligence is as stated in Dunne.”

5.8 Before turning to consider the allegedly negligent analysis of the slides, the

trial judge noted the potential issue of hindsight bias in respect of any retrospective

review of the smear tests. It was held that a court should be wary of the potential for

retrospective bias in the course of an audit or an expert’s review and thus treat their

results with caution. While noting that there are certain merits to conducting a blind

review in order to reproduce the original screening conditions, the trial judge held that

such a review is not compulsory and that the court should assess the professional

opinion of any expert, whether conducting a blind review or otherwise, and come to a

judgment.

5.9 Employing the three-part test as set out above, the trial judge then turned to

consider the negligence of Quest in relation to the 2009 smear test. Answering

question (i), it was held that certain abnormal features of cells were visible on the

slide, and thus the trial judge had “no doubt” that the cells on the slide were

AGC/AGUS. In this regard, he accepted the evidence of the Morrisseys’ expert

witnesses, Ms. Tan and Dr. McKenna, and the conclusions of those who conducted

the audit.

5.10 In respect of question (ii), the trial judge held that a reasonably competent

screener at the relevant time should not have failed to see what was on the slide, 21

where there were clear indicators of cell abnormality. In this regard, the evidence of

Dr. McKenna was also accepted. The trial judge held that the evidence challenging

this conclusion, which was given by American expert witnesses appearing on behalf

of Quest, should be treated with caution, in light of the influence of the Guidelines for

the Review of GYN Cytology Samples in the Context of Litigation or Potential

Litigation, which were issued by the American Society of Cytopathology (hereafter,

“the Guidelines”). The trial judge found that the Guidelines were prepared in an

attempt to limit litigation and to provide a robust defence for cytoscreeners accused of

negligence in the American courts.

5.11 In particular, the trial judge disagreed with the provisions of the Guidelines

which seek to impose an obligation in all cases to carry out a blind review and which

suggest that, in the absence of a blind review, it is wrong to impute any screener with

negligence. Cross J. also disagreed with those provisions of the Guidelines which

deal with findings of ASC-US and AGUS cells. In respect of such findings, the

Guidelines state that such cases “do not represent consistently identifiable

abnormalities and a reasonable basis for allegations of practice below a reasonable

prudent practitioner standard of care”. Insofar as this provision proposes that it is not

negligent to report a finding of ASC-US or AGUS cells as a normal or clear result, it

was roundly rejected and criticised by Cross J. It is apparent that the trial judge

considered that this attitude towards the categorisation of ASC-US and AGUS cells

was prevalent amongst Quest’s American expert witnesses. One of Quest’s expert

witnesses, Prof. Austin, was involved in the drafting of the Guidelines, while another

expert witness, Mr. Feit, referred to the high degree of inter-observer variability in

respect of ASC-US and AGUS categories and stated that the categories are not used at

all in the U.S. for proficiency audits or examinations of cytoscreeners. Mr. Feit’s 22

evidence that, in his view, the slide was normal, was dismissed as having been arrived

at on the balance of probabilities, utilising his professional skill and judgement. On

the basis that the Guidelines had affected, even subconsciously, the evidence of the

American expert witnesses, which could give rise to the belief that ASC-US or AGUS

cells need not be examined with the same scrutiny nor be subject to the requirement

of “absolute confidence”, the trial judge held that such evidence should be treated

with caution.

5.12 Quest chose not to call the two screeners who reviewed the slide in 2009 or

the individual who conducted the 2014 audit of the slide to give evidence.

Considering question (iii), it was held that in the absence of any such evidence, the

trial judge had no knowledge as to what they did or did not see or how they did or did

not appraise the slide. Cross J. held that it was his belief that the Quest screeners

were utilising their professional skill and judgment and recording what they believed,

as a matter of probability, was the case. However, applying the requirement of

“absolute confidence”, and on the basis of the abnormalities as identified on the slide

by Dr. McKenna, it was concluded that the slide ought not to have been categorised as

negative, and that Quest was negligent and in breach of duty in relation to the reading

of the 2009 smear test.

5.13 As previously mentioned, Medlab was held not to be negligent in its reading

of the slide which had been sent to it. While concluding that abnormalities were

visible on the slide which suggested a categorisation of AGUS/AGC cells, the trial

judge held that these cells were not easily distinguishable from other normal cells and

thus that a screener exercising reasonable care could have failed to identify the same.

The High Court therefore held that the categorisation of the slide as negative for 23

abnormalities was not negligent nor a breach of duty. This finding is not in issue on

this appeal.

5.14 The trial judge then considered the issue of the adequacy of the 2012 slide. As

previously mentioned, under the Bethesda System a minimum of 5,000 well-

visualised cells must be counted on a slide for it to be considered adequate. The

adequacy of most slides can be determined by a brief visual examination. If this

visual inspection is insufficient, the Bethesda System prescribes that the ThinPrep

method is used to formally test for adequacy. This requires viewing the slide under a

microscope on a vertical or horizontal axis and magnifying random points on that axis

in order to count the number of cells present. From this, the number of cells are

multiplied appropriately in order to ascertain whether the minimum number of

required cells are present on the slide. If the screener finds less than that amount, then

the patient should be referred for a repeat smear test in one to three months.

5.15 Both the internal and external audits of the 2012 slide which were carried out

considered that the reason for the false negative result provided was that the slide was

“very scanty”. The evidence of the Morrisseys’ expert witnesses, Ms. Tan and Dr.

McKenna, and Medlab’s expert witness, Prof. Pitman, also indicated that the slide

contained an inadequate number of cells. Dr. McKenna and Prof. Pitman both

reached this conclusion having carried out a formal test for adequacy as prescribed

under the Bethesda System. Ms. Stowe, another expert witness who appeared on

behalf of Medlab, gave evidence that she found a sufficient number of cells on the

slide following a formal test for adequacy.

5.16 The trial judge dismissed the evidence provided regarding a study carried out

in St. Vincent’s Hospital, Dublin, and a second study carried out by Prof. Pitman, 24

both of which purposively looked for cells, and counted and multiplied the number of

cells located in order to achieve a purported total. It was held that this was not a valid

approach, given that neither study sampled on a random basis in order to calculate an

average number of cells, as required by the Bethesda System.

5.17 The trial judge also dismissed the evidence of Dr. Madrigal, a pathologist who

conducted a computer analysis of the slide on behalf of Prof. Pitman and determined

that there were, in fact, over 35,500 cells on the slide. This alternative system of

counting cells was held to be irrelevant, in circumstances where there has been no

study conducted, subject to peer review or otherwise, to demonstrate that such a

computer analysis is suitable or indeed to determine what number of cells must be

found on the slide by the computer in order to establish adequacy. Further, the trial

judge placed reliance on the fact that Medlab was required, under the terms of its

agreement with CervicalCheck, to utilise the Thin Prep method, as prescribed under

the Bethesda System.

5.18 Turning to consider the 2012 slide, the trial judge held that, on a visual

examination, it was significantly different from all the other slides he had witnessed

and that it appeared to have significantly fewer cells on it. It was held that the

“absolute confidence” test is also applicable in the context of the slide’s adequacy,

meaning that in the event of any doubt on the part of a competent screener, the slide

ought to have been formally tested for adequacy. In light of the evidence put before

the High Court, and the trial judge’s observations of the 2012 slide, it was held that

the failure to test the slide for adequacy in accordance with the ThinPrep method was

negligent and in breach of duty. In accordance with the Dunne principles, it was held 25

that no screener of equal specialist or general status would have, if acting with

ordinary care, failed to subject the slide to an appropriate test as to adequacy.

5.19 While acknowledging that the nature of the formal adequacy test carried out

by Ms. Stowe was unclear and was not referred to in any report, the trial judge

accepted that she conducted her test in accordance with the Bethesda System.

However, he held that it was unlikely that any such random review would have found

the slide to be adequate. As Medlab chose not to call the two individuals that initially

reviewed the 2012 slide, there was no evidence provided as to whether an adequacy

test was carried out. The trial judge held that it must be presumed no such test was

conducted. On the balance of probabilities, Cross J. held that, had a test been carried

out by the cytoscreeners, in accordance with the ThinPrep method and the Bethesda

System, it would have resulted in a finding that the slide was inadequate. Thus,

Medlab was found to be negligent and in breach of duty in its failure to properly

conduct an adequacy review.

5.20 In light of the foregoing findings of negligence on the part of Quest and

Medlab, the trial judge turned to consider the consequences of the negligent

misreading of the slides. On his analysis of the evidence as to causation and having

regard to the fact that Ms. Morrissey was diagnosed with cancer in 2014, the trial

judge held, on the balance of probabilities, that the HPV infection was present for at

least ten years before that diagnosis.

5.21 The trial judge went on to hold that had the 2009 slide been reported by Quest

as abnormal, that is, with a categorisation of AGUS/AGC cells, Ms. Morrissey would

have been referred for a colposcopy or, at least, been advised to attend for a repeat

smear in six months’ time. It was accepted by the High Court that, on the balance of 26

probabilities, such a follow-up screening or colposcopy would have returned

abnormal results. It was further accepted that the detection of such pre-cancer would

have resulted in the performance of a large loop excision of the Transformation Zone

(LLETZ) procedure. This would have led to a complete excision of the cancerous

cells, with only a 5% chance of the recurrence of precancerous cells, and less than a

1% chance of invasive cancer developing. On the balance of probabilities, the trial

judge therefore determined that the serious prognosis which Ms. Morrissey now faces

would not have arisen.

5.22 In relation to the 2012 smear, the trial judge reached the same conclusion. He

held that, had the sample been tested in accordance with the ThinPrep method, as

prescribed by the Bethesda System, it would have been deemed as inadequate and Ms.

Morrissey would have been required to undergo a repeat smear within one to three

months. On the balance of probabilities, it was held that the repeat smear would have

resulted in a referral for a colposcopy and that the cancer, which in 2012 was certainly

developing, would have been identified and Ms. Morrissey would have undergone the

same procedure which could have taken place in 2009, with the same benign results.

Accordingly, the negligent misreading of both the 2009 and 2012 slides were found to

have caused the entirety of the Morrisseys’ claims for injuries and loss.

5.23 The trial judge dismissed the defendants’ submission that cervical cancer

develops more rapidly in younger women than in older women. On the basis of such

a suggestion, it had been argued that Ms. Morrissey’s cancer was not present in pre-

cancerous form in 2009 or 2012. The trial judge held that there was no evidence to

support the proposition that Ms. Morrissey’s cancer had developed more rapidly than

average. The High Court judge further rejected the argument of the defendants that, 27

as Ms. Morrissey developed squamous cancer and the abnormalities identified on the

reviewed slides were glandular in nature (being categorised as AGUS), the

development of the two were unrelated. In this regard, the trial judge accepted the

evidence of Prof. Wells to the effect that it is highly likely that where one sees

glandular pre-cancer there is an associated squamous pre-cancer, as the same

carcinogenic stimulus is affecting the stem cells of the cervix.

5.24 The trial judge held that, along with Quest and Medlab, the HSE was liable to

the Morrisseys, in light of its organisational role in the CervicalCheck programme.

Given that it determines the standards to be applied in relation to screening and to

which laboratories must conform and provides for the manner in which screening is

conducted and how it is reported, the HSE was held to have responsibility for “all

aspects” of the screening programme. Further, the trial judge emphasised that the

HSE chose to contract out the screening of smear tests to Quest and Medlab and,

citing Byrne v. Ryan [2007] IEHC 207, [2009] 4 I.R. 542, he held that a party cannot

evade its liability merely by engaging competent professional persons to perform

tasks which they themselves are obliged to do.

5.25 Thus, the High Court held that the HSE has a primary liability towards the

Morrisseys. The trial judge dismissed the HSE’s submission that primary liability is

based on agency and stated that he accepted the principles of Woodland v. Essex

County Council [2013] UKSC 66, [2014] A.C. 537 and the five-part test there

outlined by Lord Sumption. The trial judge held that the HSE was also vicariously

liable for the activities of Quest and Medlab, by virtue of the control which it holds

over the laboratories and their performance, as a result of their contractual

arrangements. 28

5.26 The High Court held that it was impossible to differentiate between the losses

resulting from the failure to properly assess the 2009 and 2012 slides and therefore,

the three defendants were deemed to be ‘concurrent wrongdoers’ under the Civil

Liability Act 1961, each being responsible for the same damage or for damage that

cannot be distinguished. However, as a result of the terms of the contracts between

the HSE and the other defendants, the HSE was found to be entitled to an indemnity

against the laboratories for all matters other than its liability in relation to the non-

disclosure of the audits.

5.27 Assessing the quantum of damages to be awarded, the trial judge held that Ms.

Morrissey was entitled to both general damages and special damages. Noting that the

cap on general damages was most recently fixed at €450,000 by Quirke J. in Yun v.

Motor Insurers Bureau of Ireland [2009] IEHC 318, during the time of an economic

recession, the trial judge considered it appropriate to raise the cap on general damages

to €500,000. Ms. Morrissey was awarded special damages in respect of, amongst

other things, the cost of her future care and the loss of her earnings for the remainder

of her life. The High Court held that the admitted breach of the HSE in its failure to

advise Ms. Morrissey of the results of the audits did not result in any further personal

injury being suffered by Ms. Morrissey and therefore that only a finding of nominal

damages should be made against the HSE in this respect.

5.28 The trial judge held that the Ms. Morrissey was entitled, as against all

defendants, to: general damages of €500,000; miscellaneous special damages (agreed)

of €12,508; cost of home adaption (agreed) of €70,000; occupational therapy costs

(agreed) of €55,000; loss of earnings in the sum of €50,000; care costs of €60,000;

giving rise to a total to Ms. Morrissey of €747,508; together with €10,000 in nominal 29

damages against the HSE in respect of its negligence in relation to the audit. The total

amount of damages awarded to Ms. Morrissey was in the sum of €757,508.

5.29 The trial judge held that Mr. Morrissey was entitled to general damages for

loss of consortium and to special damages arising from that loss, specifically in

respect of the future care that he and his daughter will require after Ms. Morrissey’s

death and the loss of Ms. Morrissey’s future earnings throughout her career. The

defendants submitted that, on the basis of comments made by Geoghegan J. in

Coppinger v. Waterford County Council [1998] 4 I.R. 243, a spouse is only entitled to

damages for loss of consortium in respect of his losses while Ms. Morrissey is alive.

This was dismissed by the trial judge, who held that a spouse is entitled to damages

for future pecuniary losses under the heading of loss of consortium and that it was

irrelevant that such damages are, in certain circumstances, available in an action taken

under Part IV of the Civil Liability Act 1961, in relation to fatal injuries.

5.30 The trial judge then referred to the decision of Lavan J. in Mahon v. Burke &

anor [1991] 2 I.R. 495, which held that, where a deceased person has brought an

action in negligence and was awarded damages, a statutory dependent was not entitled

to maintain an action under Part IV of the 1961 Act, as to hold otherwise would be to

subject a defendant to more than one case arising from the same cause of action. It

was then pointed out that this authority can operate to exclude the dependants of an

injured party from making claims for future financial losses because the injured party

had vindicated her rights during her lifetime in a personal action claiming damages

for personal injury. A situation where an injured party was confronted with a choice

to either vindicate her own rights in a personal action claiming damages for personal

injury, therefore depriving her dependants of any separate claim in the future, or 30

alternatively forego her personal claim so that her dependants could achieve

compensation for their losses, was described by the trial judge as “grossly unfair”.

5.31 To remedy this situation, the trial judge suggested that the principle of “lost

years” could be employed to compensate a plaintiff whose working life expectancy

has been cut short for the loss of her future earnings and the loss of her ability to care

for her children. If Mr. Morrissey is not, in fact, entitled to damages for future losses

under the heading of loss of consortium, then the trial judge held that he would have

found that the same damages would be recoverable by Ms. Morrissey under the

heading of “lost years”. The trial judge also highlighted the potential application of

the “lost years” principle in circumstances where a claimant does not have a spouse

that can recover such damages for loss of consortium but does have child dependants

who would be deprived of any future statutory claim.

5.32 The trial judge held that the Mr. Morrissey was entitled, as against all

defendants, to: general damages for loss of consortium in the sum of €60,000;

damages for loss of Ms. Morrissey’s income of €600,000; loss of pensions, company

car and share options in the sum of €150,000; costs of care for their child of €500,000;

costs of domestic assistance of €75,000; retrospective care costs of €13,432 and

bereavement counselling costs of €6,532; thus giving a total to Mr. Morrissey of

€1,405,000. The overall sum of damages awarded to Mr. and Ms. Morrissey was,

therefore, €2,162,508. The trial judge assessed that sum as being fair and reasonable

in all the circumstances.

5.33 As will have been seen, most of the five issues identified earlier as arising on

this appeal involve quite distinct questions. The only exception are the two issues

raised by, respectively, Quest and Medlab, which suggest that the trial judge failed to 31

adequately or appropriately engage with their case on the question of negligence.

While the precise manner in which those defendants analysed the purported failure of

the trial judge in that regard involves different considerations, there is clearly a great

deal of common ground between those two issues.

5.34 I will, therefore, deal with those two issues together. However, it seems to me

to be appropriate to deal separately with each of the other issues and to set out the

arguments of the parties in respect of those different issues as part of the discussion

under each heading. I propose, therefore, to turn first to the question of the legal

standard of care in clinical negligence cases and its application in the context of

screening.

6. The Proper Approach

6.1 As noted earlier, developments at the oral hearing suggested that there was

ultimately little difference between the parties as to the proper approach to be adopted

by a screener in a case such as this. However, as this matter has generated significant

controversy and was, indeed, one of the reasons why this Court considered it

appropriate to allow a leapfrog appeal directly to the Court, it is important that the

position is set out in some detail.

6.2 I have already cited the so-called Dunne principles. All parties ultimately

agreed that those principles continue to represent the law in this jurisdiction. It is also

clear that there are significant similarities between the Dunne principles and the legal

test for the standard of care identified in the United Kingdom in Bolam and Bolitho.

6.3 Before addressing the precise principles to be applied, it is appropriate to

briefly make a number of preliminary observations. The first is that care needs to be 32

taken in the use of the term “standard of care”. As the trial judge pointed out, that

term has a precise legal meaning and represents, at the level of principle, the legal

duty which applies in any particular circumstance. However, given that, in clinical

negligence cases, a court is dealing with “care” in a medical sense, the phrase

“standard of care” might at least colloquially be used to define the appropriate

standard by reference to which the approach of a relevant professional to a particular

problem should be assessed. To avoid any possible confusion between the term

“standard of care” in its precise legal meaning and what might colloquially be called a

standard of care in a clinic setting, I will use the term “standard of approach” to mean

the standard which, in practise, has been shown to be required of a particular

professional in particular circumstances.

6.4 One further observation may also be useful at this stage. There are, of course,

similarities between the Dunne principles as applied by the courts in this jurisdiction

and the Bolam and Bolitho principles applied in the United Kingdom. I have already

cited a passage from the judgment of Lord Woolf M.R. in Penney Palmer in which he

indicated that “the Bolam test has no application where what the judge is required to

do is make findings of fact”. It seems clear that, in the context in which Lord Woolf

M.R. was commenting, the Bolam test is in reality a reference to the fourth point

identified in the judgment of Finlay C.J. in Dunne (as already cited). Thus where, in a

number of judgments, the U.K. jurisprudence suggests that the Bolam test has no

application in particular circumstances, it does not seem to me that it follows that the

Dunne principles may not apply, for the specific point decided in Bolam forms but

one leg of the overall test identified in Dunne. 33

6.5 In any event, it is important to start by indicating that, while the principles

identified by Finlay C.J. in Dunne are expressly related to negligence against medical

practitioners, they mirror the test applied across the board in cases involving

allegations of professional negligence. For example, a similar approach to legal

advice allegedly negligently given was adopted by this Court in Roche v. Peilow

[1985] I.R. 232.

6.6 Thus, the starting point in any professional negligence case requires the

identification of the standard of approach which would have been applied by a

professional of the appropriate standing or skill as the person against whom the

allegation of negligence is made. Accepted practice is highly relevant, although

departure from normal practice may be found not to give rise to negligence where an

equivalent professional might reasonably have followed such a course of action while

exercising reasonable skill. Likewise, following normal practice may not absolve the

professional from a claim in negligence if it can be shown that there was an inherent

defect in the practice which should have been obvious to professionals of the type in

question. Finally, it is emphasised that the question will not come down to one of a

judge deciding which of two or more possible courses of action might have been

considered, often with the benefit of hindsight, to have been preferable, but rather

whether the course of action actually adopted was consistent with the exercise of the

ordinary care which could reasonably be expected of a professional of the type under

consideration.

6.7 In my view, the various aspects of the Dunne test identified by Finlay C.J. can

be reduced to one overarching principle with a number of subsidiary considerations

which impact on the application of that overarching principle in particular 34

circumstances. The overarching principle is to be found in point (1); the standard of

approach of a medical professional is to apply a standard appropriate to a person of

equal specialist or general status acting with ordinary care. A failure to act in that

way will amount to negligence.

6.8 Each of the other points made by Finlay C.J. derive from that overall

obligation. Thus, even if the medical practitioner concerned deviated from what

might have been established to be a general and approved practice, the practitioner

concerned will not be found to be negligent unless it can also be shown that no

practitioner of equal status exercising ordinary skill might not also have deviated in

the same way. This represents point (2) of the matters identified by Finlay C.J. and

can be seen to represent the application of the overarching principle to circumstances

where the relevant practitioner has, in fact, deviated from an established practice.

6.9 A similar comment can be made in respect of point (3). Here, Finlay C.J.

makes clear that following an accepted practice may not absolve a practitioner from

negligence if it can be demonstrated that there were inherent defects in the practice

which ought to have been obvious to a professional giving the matter due

consideration. This, again, can be seen to derive from the overarching principle, for a

professional cannot be said to have applied the required standard of approach, being

to exercise the ordinary skill which would be appropriate to a person of the status in

question, if it can also be shown that any such person ought to have realised that the

relevant practice had an inherent defect.

6.10 In addition, a similar observation can be applied to points (4) and (5) as

identified by Finlay C.J. in Dunne. Where there are two or more schools of thought

as to what course of action should be adopted in particular circumstances, it is clearly 35

the case that a professional exercising reasonable care may adopt one of them even

though there may be others who would take a different course. These principles, in

effect, represent what might be called the Bolam element of the Dunne test and can

also be seen to derive from the overarching principle.

6.11 Finally, it is important to note that Finlay C.J. went on, at p. 109 of his

judgment in Dunne, to note that the relevant principles “apply in identical fashion to

questions of diagnosis” as well as to questions of treatment. There was no argument

put forward on this appeal that different principles would apply in the case of

screening. There are some passages in judgments of the courts of the United

Kingdom which do seek to make a distinction between treatment cases and diagnostic

cases. It is, of course, the case that the application of general principles to particular

circumstances may give rise to somewhat different approaches, which stem from the

very fact that circumstances may be different. It may very well be the case that

questions concerning deviation from accepted practice, following inherently defective

practices or choice between two respectable professional opinions may be much more

likely to arise in the context of decisions on treatment rather than decisions on

diagnosis (or, indeed, it should be said, screening). But it is not, for example,

impossible to envisage that there might be circumstances where there were two

different approaches to diagnosis in a particular set of circumstances, both of which

had their reasonable adherents. I cannot see that those aspects of the Dunne principles

which deal with such questions would not have equal applicability to a case of alleged

misdiagnosis in such circumstances. There seems to me, therefore, to be strong

grounds for favouring the view adopted by Finlay C.J. in Dunne which does not seek

to distinguish, at the level of principle, between different types of clinical tasks.

However, it does need to be acknowledged that how those general principles apply 36

may well be different in particular circumstances. If there are not two schools of

thought about how to go about a particular diagnosis, then the question of the

applicability of those aspects of the Dunne principles which address such questions

(and are at the heart of what are described as the Bolam principles in the United

Kingdom) simply has no application. That is so not because there is a difference in

principle between the approach to treatment cases and other cases, but rather it simply

derives from the fact that, in practice, some of the Dunne principles may have no

application in a particular type of case because they do not arise on the facts.

6.12 No issue arose in these proceedings concerning the adoption of a common

practice which had inherent defects which ought to have been obvious. Likewise,

there was no issue concerning there being two schools of respectable thought or of an

acceptable deviation from common and established practice. The issue of the

standard of approach in this case came down, therefore, to the same issue which

almost inevitably arises in any professional negligence case. What would an ordinary

competent professional of the type and skill of the individual concerned have done,

and did the professional who is sued meet that standard? The test to be applied in this

case is, therefore, no different to the test which would properly be applied in any

professional negligence case. Ultimately, in the particular circumstances of this case,

the question came down to establishing what the approach of relevant professionals to

screening should be and whether it had been demonstrated that the actions of any of

the screeners in this case had fallen below the reasonable standard which

professionals of that type could be expected to have applied, having regard to that

approach. 37

6.13 Next, it must be emphasised that the question of the standard of approach

which should be applied by an ordinarily competent professional is ultimately a

matter of fact. It requires expert evidence as to how professionals of the type in

question would generally go about their work and the way in which they would have

dealt with the case in question. It follows that, at least in many cases, the court has no

role in determining the standard to be applied other than to assess the evidence given

by professionals as to the standard to which they themselves regard as being

appropriate to someone of the standing and skill of the defendant. There may be some

scope for the court reaching a further assessment in those limited cases where it is

said that a professional did comply with an accepted practice but where there were

also said to be inherent defects in the practice concerned. As already noted, no such

issues arise in this case.

6.14 It follows that, in a case such as this, a court has no role in imposing a standard

of approach on a professional. Rather, it is the standards of the profession itself, as

demonstrated by the evidence, which impose the standard required.

6.15 I have felt it important to emphasise these factors to ensure that there is no

misunderstanding about the court’s role in cases such as this. Some public

commentary on the decision of the High Court in this case seems to have ignored the

fact that the role of the court is as I have just described it.

6.16 It seems to me next to be appropriate to address the way in which evidence

was given in the High Court for, as I have pointed out, it is that evidence, given by

professionals themselves, which determines the standard to be applied by the Court to

another expert against whom an allegation of negligence is made. 38

6.17 In that context, it is of some importance to emphasise that the analysis of the

Court of Appeal for England and Wales in Penney Palmer was based on the evidence

given by relevant professionals to that court in that case. Further, that analysis was

also expressly put to many of the experts who gave evidence in this case, such that its

terms actually form part of the evidence given, in the sense that witnesses gave their

testimony, at least in part, by reference to the conclusions reached in Penney Palmer.

It is in that context that the term “absolute confidence” came into play. It is of the

highest importance to understand the way in which that term was used by the courts

of England and Wales, in the evidence in this case and, it follows, by the trial judge.

6.18 First, it should be said that it is clear that the term “absolute confidence”

derived from what the trial judge in the Penney Palmer proceedings (see Penney,

Palmer and Cannon v. East Kent Health Authority [1999] Lloyd’s Rep Med 123)

considered to be the agreed evidence of the experts before him. Reviewing the

evidence of the experts, the trial judge held, at p. 127:-

“All five [experts] agreed that if the screener was in any doubt about what he saw on the slide he should not classify the smear as negative. In their evidence before me each expressed the point differently but the conclusion was the same.”

6.19 The requirement of “absolute confidence that the smear is within the normal

range” before a screener ascribes to it a clear result was said to be the appropriate

practice of a screener, as advanced by one such expert, a standard with which the trial

judge stated that all the other experts were in agreement. Likewise, the adoption by

the Court of Appeal for England and Wales of the same term followed on from the

finding of the trial judge, based, as it was, on the evidence. At para. 40 of his

judgment, Lord Woolf M.R. stated:- 39

“The judge's reliance on the absolute confidence test is understandable. The phrase 'absolute confidence' was no more than shorthand for the approach which on examination of the transcripts it seems to us all the experts endorsed.”

6.20 It follows that the adoption of the “absolute confidence” test in England and

Wales stemmed from an assessment of evidence given by relevant professionals on

both sides of the Penney Palmer case. It was not itself a court imposed obligation but

one which, on the evidence, the trial court assessed as being the agreed position of

experts in the field.

6.21 Turning then to the evidence before the High Court in this case, it is important

to note that the question of there being potentially a difference between the

appropriate standard applied in the United Kingdom and that applied in the United

States did form some part of the debate on the evidence. It was in that context that

evidence was given of the fact that an “absolute confidence” test was applied in the

United Kingdom (including Northern Ireland) and was also the subject of discussion

with some of the United States witnesses called on behalf of the defendants.

6.22 Dr. McKenna, a consultant cellular pathologist based in Northern Ireland who

gave evidence on behalf of the Morrisseys, was referred to the Penney Palmer

authority during his examination in chief before the High Court on 30 January 2019:-

“Q. Can I just ask you about something… it’s English decision called Penney, Palmer and Cannon v. East Kent Health Authority and it’s a decision of the English Court of Appeal of 16th December 1999. Are you familiar with that?

A. I am very familiar with it, yes. 40

Q. There’s just one particular thing said in that judgment I just want to draw attention to at this stage and it was that the English Court of Appeal said that all the experts endorsed the ‘absolute confidence’ test, under which if there is any doubt in the mind of the cytoscreeners as to whether the slide was normal, he or she should not classify it as negative. Now, what exactly is the English Court of Appeal saying there? Like, what is the absolute confidence test, what does that mean?

A. I think what it’s saying is that unless you are absolutely – and that is 100% -- convinced that the slide is negative, do not call it negative.

…

Q. So, in other words, what I am getting at here is that when a cytoscreeners has a slide in front of him or her, is there any acceptable level of doubt – if you have any doubt, is any doubt actually acceptable?

A. No, you can only – you should only report something as negative when you’re absolutely certain – in other words, no doubt.”

6.23 When the “absolute confidence test” was put to Dr. McKenna once again the

following day, under which “if there is any doubt in the mind of a cytoscreeners as to

whether the slide was normal he or she should not classify it as negative”, he stated

the following:-

“A. And I fully agree with that statement, and in fact those are the very words that I always use to my staff; if you have any doubt, then pass it on. Do not call it negative.”

6.24 Ms. Tan, a cytotechnologist based in New York who also gave evidence on

behalf of the Morrisseys, stated that there is no tolerance for any doubt in the

assessment of the normality of the cells. The evidence tendered by the experts

appearing on behalf of Medlab also indicated their agreement with the “absolute

confidence” standard. Prof. Pitman, the lead consultant cellular pathologist for

Medlab, agreed that a cytotechnology must have absolute confidence that a smear is 41

normal before reporting it as normal. Ms. Stowe, a cytotechnologist based in

Wisconsin, also had the following exchange during cross examination:-

“Q. Now let’s be clear about this. Do you agree with me that the test is that a cytotechnologist or a cytoscreeners must have absolute confidence that there is no abnormality on that slide to pass it?

A. I agree with that.”

6.25 The experts who appeared on behalf of Quest, both based in the United States,

expressed some reservation with the “absolute” nature of the standard, however. Prof.

Austin, a consultant cellular pathologist based in Pennsylvania, expressed the

following in an exchange with the trial judge:-

“Q. MR. JUSTICE CROSS: Do you accept the suggestion that the cytoscreeners must have absolute certainty to pass cells as normal?

A. That's my understanding of the decision in the UK.

Q. MR. JUSTICE CROSS: Well, is it your view?

A. The cytotechnologist should be confident if a slide is negative or if it is possibly abnormal to refer it to the pathologist.

Q. MR. JUSTICE CROSS: And you accept that, do you?

A. Yes, Sir."

6.26 While Prof. Austin was under cross-examination, the following exchange in

relation to the Penney Palmer authority took place:-

“Q. …You see, that decision in the UK, the Penney, Palmer and Cannon v.

East Kent Authority, did you know that experts from The United States gave evidence in that case?

A. No, I didn't know that. 42

Q. All right. Did you know that they all agree, all the experts actually agreed in that case that the test is "the absolute confidence" test? Did you know that?

A. No. Do you know who the US experts were?

Q. I don't, I am afraid, no.

A. Very good.

Q. So what I just want to be clear about is this, because we are dealing with a slide which is in a laboratory in Grand Rapids in Wyoming in August 2009; are you saying that the cytotechnologist who looked at that slide has a different test than the absolute confidence test?

A. That question would have to be answered by someone from Quest because I wasn't there, you know, instructing the cytotechnologist in the Quest facility.

Q. MR. JUSTICE CROSS: When you said that a competent screener when looking at this slide in 2009 might or could have reported it as normal...

A. Yes, Sir.

MR. JUSTICE CROSS: ...were you saying that that could have been done by a competent screener assessing his or her professional view and coming to a decision on the balance of probabilities or were you saying that a competent screener could say with absolute confidence that it was normal?

A. I can certainly say with confidence. To be honest, this idea of absolute confidence, I am kind of struggling with, because it's not...

Q. MR. JUSTICE CROSS: It is not something you...

A. It is not something we routinely deal with. So I am not quite sure how to say the difference between 'confidence' and 'absolute confidence'.” 43

6.27 After the trial judge’s intervention, the cross-examination continued and Prof.

Austin appeared to ultimately express agreement with the standard of “absolute

confidence”, notwithstanding his previous reservations:-

“Q. Now what I just want to be very clear about here, I want to be clear that the standard that applied in Grand Rapids in Wyoming in August 2009, all right, that’s what we are dealing with here in this case, all right. Now are you suggesting that a cytoscreener, when he or she is looking at a slide, should be anything other than absolutely confident if they are going to pass that slide as being negative?

A. No, Sir.

Q. So we are in agreement then?

A. Yes, Sir."

6.28 Mr. Feit, a cytotechnologist based in Wisconsin, also expressed misgivings in

relation to the “absolute” nature of the confidence required:-

“A. Well, this is something that -- so absolute confidence for me, as a scientist, absolute confidence is very hard to have because, I mean, generally in science, you generally say the evidence supports this or doesn't support that.

Q. MR. JUSTICE CROSS: And there can be levels of support, can't there?

A. Yes, yes, but I don't think -- I mean, you probably wouldn't even have -- I mean, a physicist probably wouldn't even say he has absolute confidence in the law of gravity because....

Q. MR. JUSTICE CROSS: It'd be pretty close.

A. Pretty close, probably, pretty close. But I mean, in science, it's just, you know, we are taught not to do that because science moves forward through new studies, new evidence, you know, and so absolute confidence is something I just, it's very difficult for me. I know it probably has a different meaning in law. 44

Q. MR. JUSTICE CROSS: Yes.

Q. MR. TREACY: Yes.

A. And I don't understand that, so.”

6.29 From that review of the evidence, it is first clear that there was evidence that

the actual standard applied by relevant professionals in the United Kingdom was one

of “absolute confidence”. Given some of the “doomsday” predictions which followed

on from the judgment of the High Court in this case, I do feel it necessary to say that

at least some of the more extreme comments are very hard to reconcile with the fact

that there was clear evidence that such a standard is actually applied in the United

Kingdom generally and, to the particular knowledge of an important expert witness, in

Northern Ireland specifically, without the screening systems in those countries

becoming unworkable.

6.30 It is also absolutely clear that, while there may have been some quibbling on

the part of witnesses called on behalf of the defendants with whether the term

“absolute” was appropriate, all of the witnesses agreed that any doubt about whether

what is seen on a slide is normal must not allow the case to be reported as a clear

result. Again, it must be emphasised that imposing such a standard of approach does

not derive from the Court but rather from an assessment of the evidence given on all

sides concerning the standard actually applied by professionals in the area in question.

It is those experts, not the Court, who identified the standard expected of a normally

competent screener as being one which precludes giving a clear result in a case of

doubt.

6.31 Next, it is perhaps of particular importance to note again that the trial judge in

this case clearly accepted that it was possible for competent screeners, applying an 45

appropriate standard of approach, to come to different views about whether there was

even a doubt as to whether a clear result could be given. It would, indeed, have been

difficult for the trial judge to have come to any different view having regard to the

evidence given in respect of the United Kingdom’s screening programme (which is

accepted as being one of the very highest standard), where, notwithstanding those

high standards, reviews suggest of a different view to that of the original screener

being taken in a significant proportion of those cases where a diagnosis of cancer

actually followed.

6.32 But if any proof were needed of the practical acceptance by the trial judge of

the fact that there could be genuine differences of opinion between competent

screeners, even applying a no doubt test, this can be found in the very finding of the

trial judge in respect of the claim for negligence against Medlab relating to the

reading of the 2012 slide. It will be recalled that, while the trial judge found Medlab

negligent in respect of the adequacy issue, the trial judge was not satisfied that it had

been demonstrated that Medlab was negligent in respect of the manner in which the

screener did not identify any suspicious material on the slide in question. The trial

judge came to that view notwithstanding the fact that there was expert evidence,

tendered on behalf of the Morrisseys, which suggested that a competent screener

would have identified the slide as problematic. It follows that this case itself provides

a very clear example of how, even applying what the trial judge considered to be an

“absolute confidence” test, there was nonetheless room for a finding, contrary to at

least some of the evidence, that this was the sort of case where competent screeners

could come to different views and where there was, therefore, no negligence. The

suggestion, therefore, that the trial judge was applying an “absolute confidence” test

in a way which effectively meant that every error (even with the benefit of hindsight) 46

must result in a finding of negligence is demonstrably wrong and would clearly be

seen to be such to anyone who had taken the trouble to read the judgment. If the trial

judge were applying the test in that way then it is impossible to see how he could have

found against the Morrisseys in respect of the allegation that Medlab had negligently

read the slide, as opposed to the finding which he actually made, which was to the

effect that Medlab was only negligent in treating it as adequate.

6.33 Finally, it is necessary to touch on a question on the standard of approach issue

in respect of which there was some debate at the hearing. That debate concerned the

use of the term “test” in relation to “absolute confidence”. Counsel for the Morrisseys

accepted that the Dunne test was the appropriate test and was anxious not to be heard

to suggest that Penney Palmer provided a different legal test. In that view, I consider

counsel to be correct. Penney Palmer does not establish any different legal test.

Rather the term “absolute confidence”, which derives from Penney Palmer, can be

seen as no more than a synopsis of the evidence given in that case and not as

representing any different or separate test. However, it is worth noting that, in the

written submissions filed in the High Court, counsel on behalf of the Morrisseys did

describe it as “the absolute confidence test”. That may well explain why the trial

judge also described it as a “test” in his judgment. However, it is clear that it does not

represent a separate or different legal test. The only test for the standard of approach,

at least so far as relevant in this case, is based on evidence as to the standard actually

applied by competent professionals in the area. In describing that standard, based on

the evidence, it is important not to get too hung up on the words used, for to do so can

create an erroneous impression that the language used has a status amounting to a

legal test. 47

6.34 Indeed, it may well be that the introduction of the term “absolute confidence”

into the debate has created more confusion than clarity. Ultimately, the overall

question which a court has to address in a case such as this is as to whether a

reasonably competent screener could have given a clear result, both having regard to

adequacy and the absence of suspicious material. On the evidence in this case, it

seems clear that the standard of approach to be adopted by a screener in such

circumstances is that a screener should not give a clear result if they have any doubt

about either adequacy or the absence of suspicious material.

6.35 That is the only test to be applied. Therefore, the question for the court’s

assessment is whether, on the evidence in this case, it has been shown on the balance

of probabilities that a competent screener could not have concluded that there was no

doubt about it being appropriate to give a clear result.

6.36 It does not seem to me that there is any basis for suggesting that the trial judge

approached this case in any other manner.

6.37 It may be useful, at this stage, to also comment on the role of expert evidence.

For the reasons already addressed, it is clear that, in any case of dispute, it will be

necessary to tender expert evidence as to what the appropriate standard of approach

should be for a professional of the standing and skill of the one against whom an

allegation of negligence is made. But expert evidence may play another role. It may

assist the court in deciding on the facts of the individual case whether the relevant

professional has lived up to whatever standard of approach has been established.

Expert evidence of that type may play a role in many types of negligence actions.

6.38 For example, in the case of an industrial accident, expert evidence may be

tendered to establish the appropriate standards which should be applied by employers 48

in the industry concerned. But expert evidence might also be tendered to assist the

court in deciding whether, as a fact, the accident occurred in a way which could be

said to be attributable to a failure to apply those standards. For example, an engineer

might be called to give evidence about whether it was likely that an accident could

have happened in the way in which it was described by a witness. It might be said

that the workings of whatever industrial process was involved would not make it

possible for an accident to have occurred in a particular way. Similarly, medical

evidence might be tendered as to whether injuries actually suffered were or were not

consistent with an accident having occurred in a way described by a witness. In those

latter cases, the experts are not giving evidence as to the standards to be applied but

rather are giving evidence which may assist the court in conducting its role of

deciding the facts on the balance of probabilities.

6.39 It is worth emphasising that, where expert evidence is tendered in that latter

respect, there is no place for the application of the Bolam test or, in the Irish context,

the third item of the Dunne test. The experts may express different views about the

likelihood or otherwise of something having happened in a particular way or the

likelihood or otherwise of a competent professional having acted in a particular way.

But when such views are expressed, they only represent evidence to assist the court in

deciding on the facts. The court must choose between any such competing evidence

and reach an overall assessment on the facts on the basis of all the evidence tendered.

In such a case, the court is not involved in identifying that there are two respectable

schools of thought about the proper course of action to be adopted, such that a

professional will be absolved from liability if following either. Rather, in such a case

the expert is simply tendering evidence which may be useful, to a greater or lesser

extent, in assisting the judge to reach a conclusion on the facts. Such evidence may 49

not even be absolutely necessary in every case. To take but a simple example, it

might be established in the circumstances of a particular negligence claim that it was

accepted practice that a doctor should have taken a particular course of action if a

patient had a temperature above a certain level. Whether the patient actually had a

temperature above that level when measured by the relevant doctor is a question of

fact. There might be competing evidence. A doctor might give evidence of one

reading, whereas a nurse who was present might suggest that the doctor’s evidence

was incorrect. In such a case, the court would have to make a finding of fact based on

that evidence in circumstances where expert evidence would be of no assistance.

However, where the facts involve difficult questions on which expertise may bear,

then it will, of course, often be useful for the court to have the benefit of such expert

evidence in assessing the facts.

6.40 That being said, I would also accept that the practical approach adopted in

Penney Palmer may well provide a useful guide to the way in which a court should

approach its task in circumstances of this case. Ultimately, however, the question is

as to whether a competent screener could have given a negative, or clear, result. The

first question for this Court is, therefore, as to whether there was evidence to support

the trial judge’s conclusion that a screener must not give a clear result when in any

doubt. On the evidence, it was undoubtedly accepted by all witnesses that a

competent screener must not give such a result if they had any doubt as to the

presence of suspicious material or as to the adequacy of the material on the slide. It

follows that the second question, in respect of the slide tested by Quest, was as to

whether there was evidence and analysis to support the finding that a competent

screener could not have formed the view that there was no doubt but that the slide in

question was clear. Likewise, the second question in respect of Medlab was as to 50

whether there was evidence and analysis to support the finding that a competent

screener could not have formed the view that the sample was adequate.

6.41 Those issues obviously involve considering the slides themselves, potentially

with the benefit of expert evidence, and considering whether any element of those

slides was such that it should not have left a competent screener without a doubt.

Ultimately it does not seem to me that the approach of the trial judge in that regard

was materially different to the approach which I have just outlined. On that basis, it

does not seem to me that the standard of care issue itself could provide any basis for

allowing an appeal from the decision of the trial judge in this case. In those

circumstances, it is next necessary to turn to the two connected issues, which concern

whether the trial judge failed, as both Quest and Medlab argue, to properly engage

with their case on the respective second issues just mentioned.

7. Did the Trial Judge fail to engage with the Defence Case?

7.1 While the specific issues raised by, respectively, Quest and Medlab were

different and depended very much on the factual issues arising in the separate cases as

against them, there is, nonetheless, a similar approach adopted by both of these

defendants at the level of principle.

7.2 While it will be necessary, therefore, to turn to the specific issues which arise

in the different case made against both of these defendants, it is appropriate to start

with some general observations which are applicable to both sets of issues.

7.3 The legal position is clear. The classic statement of the correct approach to be

taken by an appellate court in respect of findings of fact made at first instance is as set

out by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at pp. 217-218. In particular, 51

it was held that an appellate court is bound by the findings of fact made by the trial

judge when they are supported by credible evidence. Further, McCarthy J.

emphasised the importance of a clear statement by the trial judge of his findings of

primary fact, the inferences to be drawn and the conclusion that follows.

7.4 This latter obligation on the trial judge underpins the case law which

subsequently developed on the question of the appropriate engagement on the part of

a trial judge with the competing arguments of the parties to litigation. Any party is

entitled to a judgment which states why the party concerned won or lost. In Doyle v.

Banville [2012] IESC 25, [2018] 1 I.R. 505, this Court held that, to this end, it was

important that the judgment of the trial court engages with the key elements of the

case made by both sides and provides a reasoned conclusion as to why the case on the

facts made by one or other side is preferred. In my judgment in that case, a

distinction was drawn between circumstances in which there may have been a

significant and material error in the way in which the trial judge reached a conclusion

as to the facts, in respect of which an appellate court can and should intervene, and a

case where the trial judge was simply called on to prefer one piece of evidence to

another and does so for a stated and credible reason. In the latter case, it is not the

function of the appellate court to revisit the trial judge’s findings.

7.5 This obligation on the trial judge to engage with and adequately address the

competing arguments of the parties on the facts was restated by this Court in Wright v.

AIB Finance & Leasing and ors [2013] IESC 55 and Ulster Bank v. Healy [2015]

IESC 106. Importantly, in Leopardstown Club Ltd. v. Templeville Developments Ltd

[2017] IESC 50, [2017] 3 I.R. 707, MacMenamin J. set out in clear terms the 52

approach to be taken by an appellate court when reviewing the engagement of the trial

judge with the arguments of the parties to litigation, at paras. 109-111:-

“109. Save where there is a clear non-engagement with essential parts of the evidence, therefore, an appeal court may not reverse the decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge's primary findings of fact.

110. “Non-engagement” with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted went to the very core, or the essential validity, of his findings. There is, therefore, a high threshold. In effect, an appeal court must conclude that the judge's conclusion is so flawed, to the extent that it is not properly “reasoned” at all. This would arise only in circumstances where findings of primary fact could not “in all reason” be held to be supported by the evidence (see Henchy J. in V.C. v.

J.M. and G.M. [1987] I.R. 510, at p. 523, quoting his earlier judgment in Northern Bank Finance v. Charlton [1979] I.R. 149). “Nonengagement” will not, therefore, be established by a process of identifying other parts of the evidence which might support a conclusion other than that of the trial judge, when there are primary facts, such as here. Each of the principles in Hay v. O'Grady [1992] 1 I.R. 210 is to be applied.

111. The task faced by the judges of our appeal courts is already too onerous.

But the task would be made yet more onerous were appeals to be reduced to a piece-by-piece analysis of the evidence, in an effort to show, on appeal, that the trial judge might have laid more emphasis on, or attached more weight to, the evidence of one witness, or a number of witnesses, or one document, or a number of documents, rather than others on which he or she relied.” (emphasis included in original) 53

7.6 In the context of that case law, it is, however, important to emphasise a

number of features which are of some relevance to the issues which arise on this

appeal.

7.7 First, it is clear that what is spoken of as a lack of engagement in those

authorities relates not so much to the way in which a trial judge conducted the

proceedings but rather to the way in which the trial judge determined the issues in the

judgment. A failure to engage, in the context in which it is used in the relevant case

law, clearly refers to the failure on the part of a trial judge to set out the reasons why

central or important aspects of the case of one or other party on the facts were not

accepted.

7.8 I did not understand counsel on any side of this case to be in the least way

critical of the way in which the trial judge conducted these proceedings. Even a

general reading of the transcript makes it clear that the trial judge was fully involved

with the evidence and the issues and, in that sense, was clearly engaged with the case.

However, that is not the sort of engagement to which the case law referred to earlier is

directed. Rather, the criticism suggested both by Quest and by Medlab is directed to

the question of whether the trial judge gave adequate reasons in his judgment for

rejecting what are said to be central aspects of their respective cases on the facts.

7.9 Second, it is worth adding that it is clear from that case law that it is far from

sufficient for a party seeking to appeal a decision of a trial court to search through the

undergrowth of the pleadings and evidence so as to find some tangential or minor

aspect of the case which is not expressly referred to in the judgment. The test,

therefore, involves, as MacMenamin J. pointed out in Leopardstown Club, a high

threshold which requires the court to address the question of whether, taking that 54

party’s case as a whole, can it be fairly said that the trial judge has significantly failed

to adequately address the reasons for rejecting the appellants’ case on the facts?

7.10 Finally, before going on to consider the specific issues raised by the respective

defendants, it is also of importance to emphasise that it was accepted by both Quest

and by Medlab that there was evidence on which the trial judge could have concluded

that the facts were as alleged by the Morrisseys. In other words, there was evidence

that a competent screener would, in the case of Quest, not have given a clear reading

and, in the case of Medlab, not considered the slide adequate. This is not the sort of

case, therefore, where the primary issue identified in Hay v. O’Grady arises. In most

cases in which factual decisions are sought to be overturned, it is asserted that there

was no evidence on which the decider of fact could have reached a particular adverse

conclusion. This is not such a case. Rather, this case is solely concerned with

whether there was sufficient engagement in the judgment with the case on the facts

made by the two laboratories so as to give a reasonable and broad explanation as to

why what were said to be important elements of their respective defences on the

merits did not find favour.

7.11 Against those general observations, it is necessary to turn separately to the

issues raised by, respectively, Quest and Medlab.

8. The Quest Case

8.1 It was argued on behalf of Quest that there was a failure on the part of the trial

judge to engage with its case in respect of the interpretation of the 2009 slide, which

was to the effect that a reasonably competent cytoscreener could have reported the

2009 slide as clear or negative. Quest submits that the trial judge reached two 55

erroneous conclusions in relation to its U.S. expert witnesses, resulting in a failure on

the part of the High Court to engage with the cumulative effect of their evidence.

8.2 First, as previously referred to, the trial judge considered that the evidence

tendered by American expert witnesses called by Quest should be treated with caution

and as being “subconsciously affected” by the Guidelines issued by the American

Society of Cytopathology and its view on the reading of ASC-US and AGUS cells.

Quest submitted that this conclusion was not supported by evidence and that at no

point in these proceedings was it submitted that the Guidelines should set the legal

standard for negligence in cytoscreening. While Quest’s expert cytotechnologist, Mr.

Feit, and its expert pathologist, Prof. Austin, were members of the American Society

of Cytopathology, it was submitted that their conclusions as to the presence of

abnormalities on the 2009 slide were derived from honestly held opinions rather than

bias towards the categories denoting borderline abnormalities arising from the content

of the Guidelines.

8.3 Second, Quest argued that the trial judge also erred in concluding that Mr. Feit

and the Quest cytoscreeners reached their conclusions as to the 2009 slide on the

balance of probabilities, in circumstances where, it was submitted, there was no

evidence that they adopted this standard.

8.4 As a result of these errors, Quest submitted that the conclusions of the trial

judge in respect of the interpretation of the 2009 slide contained no real engagement

with the evidence of Prof. Austin and Mr. Feit and that there was no proper

explanation as to why the evidence of the Morrisseys’ expert witnesses was preferred

over their own. 56

8.5 Furthermore, it was argued that there was a failure to engage with the evidence

adduced by Quest of the blind review which Mr. Feit coordinated of the 2009 slide.

This review was submitted to have reproduced the original screening conditions

insofar as possible in order to assess how the reasonably competent cytoscreeners

would interpret a slide. The 2009 slide was reviewed by eight cytoscreeners,

alongside nine other slides, and the screeners did not know which slide was of

interest, nor by whom they were instructed. Six out of eight screeners deemed the

2009 slide negative, and two made findings of abnormalities.

8.6 Quest submitted that the trial judge’s approach to the blind review was flawed.

While it was accepted that Cross J. had engaged at a high level with some of the

“hazards” said to be associated with blind reviews in general, the trial judge was said

not to have engaged at all with the methodology or results of the Quest blind review

and not to have explained how its results can be consistent with the finding of

negligence which was arrived at. This occurred, Quest submitted, in circumstances

where the expert witnesses on behalf of the Morrisseys also accepted the merits of

blind review. In addition, it was submitted that the trial judge expressly refused to

consider the evidence of Prof. Roese, thus failing to appreciate the need to mitigate

hindsight bias in a cytology review.

8.7 Finally, Quest submitted that there was also a failure on the part of the trial

judge to engage with their case in respect of causation. The cumulative effect of the

evidence adduced by Quest in relation to causation was said to point to the probability

that neither squamous abnormalities nor squamous pre-cancer was present in 2009.

8.8 In this regard, it was submitted first that the trial judge erred in his conclusion

that a rescreening or colposcopy in 2009 would have revealed squamous pre-cancer 57

cells which ultimately developed into the cancer with which Ms. Morrissey had been

diagnosed in 2014. This conclusion was based on what Quest argued was an

inaccurate and unsubstantiated assertion made by Prof. Wells that both glandular and

squamous pre-cancer existed in 2009, whereas the evidence was said to indicate that

only glandular abnormalities may be identified from the 2009 slide.

8.9 In addition to this error, counsel for Quest argued that the trial judge failed to

engage with the aggregate evidence in relation to the 2009 and 2012 slides and the

2014 smear, all of which returned negative results, and the 2014 trachelectomy

specimen. This specimen, acquired during the radical trachelectomy procedure

performed on Ms. Morrissey in 2014, was said by Prof. Austin to have indicated

limited evidence of CIN3 cells, and its result was not referred to in the judgment of

the High Court. Prof. Austin gave evidence on behalf of Quest that the features of

Ms. Morrissey’s case suggested that Ms. Morrissey’s cancer had progressed more

rapidly than usual. This was accompanied with evidence to the effect that cancer may

develop more rapidly amongst some younger women. It is submitted that the trial

judge failed to engage with the totality of this evidence when reaching his conclusion

on causation.

8.10 In response to the submissions of Quest in relation to the evidence of its U.S.

expert witnesses, counsel for the Morrisseys submitted that, on the basis of the

evidence which had been adduced in respect of the influence of the Guidelines, the

trial judge was entitled to form his assessment of the appropriate weight to be given to

the evidence of Prof. Austin and Mr. Feit In particular, counsel referred to the

affirmation to comply with the Guidelines which other U.S. expert witnesses, who

were members of the American Society of Cytopathology, confirmed in evidence that 58

they had given. Further, counsel relied on the evidence of Dr. McKenna to the effect

that borderline categories of abnormal cells cannot be underestimated and can be

indicative of high-grade abnormalities on further investigation.

8.11 Further, it was argued on behalf of the Morrisseys that the trial judge was

entitled to assess the appropriate weight to be given to the expert evidence in relation

to blind reviews and hindsight bias. Evidence was adduced on behalf of the

Morrisseys in relation to the inadequacies of blind reviews generally and Dr.

McKenna further stated in evidence that the blind review of the 2009 slide had been

compromised as the slide had markings on it and therefore was not a true reproduction

of what was before the original screener. Prof. Roese, it was submitted, had no

experience in cytology screening and did not engage with the facts of this case in

giving evidence, and counsel argued that the trial judge was entitled to determine that

he did not require the assistance of Prof. Roese in respect of the impact of hindsight

bias.

8.12 Finally, in respect of the trial judge’s analysis as to causation, counsel on

behalf of the Morrisseys submitted that there was no error in his finding that

squamous pre-cancer was likely to have been in existence by 2009 and that this would

have been identified following a rescreening and would, as a matter of probability,

have led to a referral for a colposcopy had the 2009 slide been correctly interpreted.

This finding was based on the evidence of Prof. Shepherd that the lesion was likely to

have developed over an eight to twelve-year period and his evidence to the effect that,

where glandular abnormalities are found it is highly likely that squamous

abnormalities will co-exist, as the same oncogenic stimulus is affecting the stem cells

of the cervix, which differentiate along either squamous or glandular lines. 59

8.13 Further, counsel for the Morrisseys denied that there was a failure to engage

with the totality of the evidence adduced by Quest. That borderline abnormalities

were identified on the 2009 and 2012 slides, it was submitted, did not lead to the

conclusion that there were no high grade abnormalities or precancerous lesions in

existence at that time. Prof. Wells gave evidence that there was not always a close

correlation between the cytology and the subsequent histopathology so that cytology

screening might show minor abnormalities whereas histopathology may often show

more serious disease. The negative result of the 2014 smear, which was taken

following Ms. Morrissey’s cancer diagnosis, was said by Prof. Shepherd to be readily

explicable as it is said not to be uncommon that smears taken from a cancerous cervix

are obscured by the presence of inflammatory cells, blood and pus. In addition, it was

submitted that there was no inconsistency between the findings of the 2014

trachelectomy specimen and the abnormalities identified on the 2009 slide. Prof.

Wells gave evidence that any glandular abnormality could have been overgrown by

the squamous cancer.

8.14 Finally, it was argued on behalf of the Morrisseys that the trial judge was

entitled to dismiss Quest’s contention that Ms. Morrissey’s cancer was one which

rapidly developed, particularly in light of the evidence of both Prof. Wells and Prof.

Shepherd to the effect that the trachelectomy specimen indicated that Ms. Morrissey’s

cancer was a moderately differentiated one and did not bear the characteristics of an

aggressive or rapidly growing cancer. Both experts also rejected the proposition that

cancer develops more rapidly amongst younger women.

8.15 Before leaving the question of causation, I should make one point which is

applicable to the case against both Quest and against Medlab. It was accepted by 60

counsel on all sides that this case proceeded before the High Court on the basis that

the task of the trial judge was to determine causation as a matter of probability. In

other words, was it more probable than not that, had any relevant negligence not

occurred, a benign or improved outcome would have ensued. Counsel agreed that no

case had been made which suggested that, following the jurisprudence identified in

Philip v. Ryan [2004] IESC 105, [2004] 4 I.R. 241, it might, arguably, be appropriate

to assess causation on the basis of the likelihood or otherwise of a benign or improved

outcome and to measure damages accordingly. There certainly are some types of

cases where the proper approach is not to decide what consequences would have

resulted from the absence of negligence by determining that question on the balance

of probabilities, such that full damages would be awarded if there was a slightly

greater than 50% chance of a benign or improved outcome but no damages at all

would be awarded if there was a slightly less than 50% chance of such a result.

Rather, the approach identified in Philip v. Ryan is that, in the types of cases to which

it applies, it is appropriate to award damages which are broadly proportionate to the

likelihood of a benign or improved outcome, so that the relevant damages would

approximate to full damages if there is a very significant likelihood of a benign or

improved outcome in the absence of negligence but that limited but proportionate

damages would be awarded even if it there was a less than 50% probability of a

benign or improved outcome, but some realistic possibility of such a consequence.

8.16 I would decline, therefore, to express any view as to whether cases of this type

might fit in the jurisprudence identified in Philip v. Ryan. I feel it appropriate to make

that comment lest, by not dealing with the issue, it might be later asserted that I had,

by implication, agreed that the approach adopted in this case was necessarily the 61

correct one. That is an issue which I would leave to any case in which the issue was

fully fought.

9. The Medlab Case

9.1 The first issue raised by Medlab is in respect of the trial judge’s determination

of the factual question of what was to be seen on the 2012 slide. This, the trial judge

held, in accordance with the guiding principles set out in Penney Palmer, was to be

assessed prior to any consideration of the standard of care required under the Dunne

test. On the evidence given by Dr. Madrigal, his computer-generated analysis of the

2012 slide identified over 35,500 squamous cells. It was Medlab’s case that on this

evidence there were more than 5,000 cells on the slide, as required under the Bethesda

criteria, and therefore the slide was, as a matter of fact, adequate. Thus, in

circumstances where Medlab’s cytoscreeners arrived in 2012 at what is submitted to

be a correct conclusion as to the adequacy of the slide, it was argued that there could

not have been a finding of negligence by reference to the particular method used to

arrive at that result.

9.2 Medlab contended that, in his judgment, the trial judge had accepted as a fact

that there were over 35,500 cells on the 2012 slide. While not strictly falling under

the “failure to engage” jurisprudence, it was submitted that he erred in subsequently

dismissing Dr. Madrigal’s evidence as to the alternative method of counting cells as

“irrelevant” and in failing to answer the question as to how many cells were on the

slide. Medlab further argued that the trial judge erred in concluding that, in the event

of any doubt as to adequacy, the slide must be examined using the ThinPrep method,

because Medlab was held to be obliged under the terms of its contract with Cervical

Check to do so. The terms of this contract, Medlab submitted, cannot be relied on in a 62

negligence claim. It was also argued that the contract, in any event, obliged Medlab to

test in accordance to the Bethesda System, which method was said not strictly to

require a formal adequacy test to be carried out in any particular manner.

9.3 Medlab further submitted that there was a lack of engagement on the part of

the trial judge with its case in respect of the proper approach to be applied by a

reasonably competent cytoscreener when assessing the adequacy of a slide. In the

first instance, it was submitted that the evidence adduced by Medlab demonstrated

that the Bethesda System does not strictly require a formal adequacy test to be carried

out and that applying the Dunne principles, the reasonably competent screener could

have found the 2012 slide to be adequate without conducting a formal assessment.

Two expert cytoscreeners, Ms. Frasch and Ms. Drew, both gave evidence on behalf of

Medlab that they had conducted a blind review of the 2012 slide and had assessed it

as adequate without considering it necessary to carry out a formal adequacy review.

Ms. Tan, the Morrisseys’ expert cytoscreener, also gave evidence that the 2012 slide

could have been passed for adequacy without a formal assessment. Medlab argues

that this evidence was not properly addressed by the trial judge when, at paras. 123

and 124 of his judgment, he concluded that no screener of equal status or skill acting

with ordinary care would have failed to subject the slide to an appropriate test as to

adequacy and made the assumption that the two screeners who originally reviewed the

slide in 2012 did not perform a formal adequacy test.

9.4 Further, and in the alternative, Medlab submitted that the trial judge’s finding

that, as a matter of probability, a formal test would have resulted in a finding of

inadequacy, made at para. 125 of his judgment, cannot be reconciled with the

evidence of Medlab’s expert cytoscreener, Ms. Stowe, who conducted a formal 63

adequacy review in accordance with the Bethesda system and found the slide to

contain a sufficient number of cells.

9.5 Medlab also argued that the trial judge failed to engage with the evidence on

causation which was tendered by expert witnesses on behalf of both Quest and

Medlab. The trial judge concluded that, had Ms. Morrissey been referred for a repeat

smear following a finding of inadequacy in respect of the 2012 slide, it would have

resulted in colposcopy which would have revealed the existence of squamous pre-

cancer cells. This finding, it was submitted, was reached in the absence of any

evidence as to the existence of glandular pre-cancer cells in the 2012 slide or in the

2014 trachelectomy specimen, which would have indicated the likely coexistence of

squamous pre-cancer. Further, this conclusion was said to have been reached without

addressing the evidence adduced by Quest which indicated that Ms. Morrissey’s

might have been a particularly rapidly-developing form of cancer.

9.6 In response to Medlab’s arguments, counsel on behalf of the Morrisseys

submitted that the findings of the trial judge in relation to the adequacy of the 2012

slide were supported by credible evidence. First, it was said that the factual question

as to adequacy to be determined by the trial judge related to whether there was a

sufficient number of well-visualised cells on the slide. In accordance to the method

prescribed by the Bethesda system, the slide must contain 5,000 “well-visualised”

cells and be “satisfactory for evaluation”. These cells must be well-visualised for the

cytoscreener operating in laboratory conditions, it was contended, rather than for a

computer conducting an automated analysis. Both the terms of Medlab’s contract

with Cervical Check and the ThinPrep manufacturer’s specifications require

compliance with the Bethesda System. Further, the Morrisseys rely on the evidence 64

of Dr. McKenna to the effect that an alternative method of testing adequacy, such as

that employed by Dr. Madrigal, has yet to be clinically shown to be of the highest

standard and proven to be as safe as the prescribed method that is being departed

from.

9.7 In addition, counsel on behalf of the Morrisseys referred to the evidence given

by a number of expert witnesses to the effect that the slide was not adequate for

cellularity, including that of Prof. Pitman, who appeared on behalf of Medlab.

Counsel for the Morrisseys also pointed out that Ms. Tan had given evidence that she

reported the sample as adequate but only because she had identified abnormalities on

the slide.

9.8 The submissions of the Morrisseys in respect of the trial judge’s findings in

relation to causation are as stated in full above. It is submitted that the trial judge’s

finding that a colposcopy carried out in 2012 would have been likely to identify

squamous pre-cancer was based on credible evidence. In particular, counsel for the

Morrisseys referred to the evidence of Prof. Shepherd to the effect that the cancerous

cells were likely to have been developing over an eight to twelve-year period and that,

on the balance of probabilities, they progressed to an invasive cancer in early-mid

2013. Prior to this, Prof. Shepherd stated, a high-grade lesion would have been in

existence. Further, counsel for the Morrisseys relied on the evidence of Prof.

Shepherd to the effect that where glandular abnormalities are found, it is highly likely

that squamous abnormalities will co-exist, as the same oncogenic stimulus is affecting

the stem cells of the cervix.

9.9 Having set out in some detail the precise contentions put forward both by

Quest and by Medlab concerning what was said to be a failure of the trial judge to 65

engage adequately in his judgment with certain aspects of their cases on the facts, it is

necessary to address whether any of the points made are sufficient to warrant allowing

the respective appeals of the laboratories.

10. Discussion on Engagement

10.1 The starting point has to be to reemphasise the fact that the threshold for

successfully establishing that there has been a sufficient lack of engagement by a trial

judge with the case made by a party who appeals against the first instance decision is

a high one. As MacMenamin J. pointed out in Leopardstown Club, as referred to

earlier in this judgment, an appellate court may only reverse the decision of a trial

judge “where there is a clear non-engagement with essential parts of the evidence”.

As MacMenamin J. also pointed out, the ultimate obligation on a trial judge is to give

a reasoned judgment. If the analysis of the evidence and the basis on which certain

evidence is preferred to a conflicting account fails to meet the requirement that the

judgment is “truly reasoned” then an appellate court must set aside the judgment

concerned. But it is clearly insufficient to that end to simply identify some piece of

relevant evidence that is not mentioned in the judgment or to suggest that the basis for

a trial judge preferring certain evidence over some other piece of evidence is not as

fully set out as it might be. The threshold is much higher than that.

10.2 On the other hand, it is clear that an attack on the judgment of a trial judge on

the basis of a “failure to engage” is different from a suggestion that there was no

evidence on which the trial judge could have come to the conclusion which he/she

reached, under what might be described as a “pure” Hay v. O’Grady point. Much of

the argument put forward on behalf of the Morrisseys centred on identifying evidence

which, it was said, the trial judge was entitled to accept and which, if accepted, led to 66

the conclusions of fact set out in the judgment. However, I did not ultimately

understand either counsel for Quest or counsel for Medlab to suggest that there was

no evidence from which the trial judge could have reached the conclusions of fact

which are to be found in the judgment. Therefore, pointing out that there was such

evidence does not really advance the argument.

10.3 It seems to me that there really are three questions which need to be addressed

under this heading. First, can it be said that the trial judge did fail to address any

aspects of the respective cases made on the facts by Quest and Medlab? Second, and

to the extent that it may be possible to say that there were aspects of those respective

cases which were not fully addressed, were the issues in respect of which any such

failure might be established sufficiently central to the case as a whole to warrant

holding that it was an “essential part” of the case on the evidence in the sense in

which MacMenamin J. used that term in Leopardstown Club? Third, was the extent

of any non-engagement sufficiently serious that it can properly be said that the trial

judge has not really given reasons as to why one side succeeded and the other failed

on an essential element of the case?

10.4 In addressing the issues which arise under this heading, it is important to start

by emphasising the particular circumstances in which the trial of these proceedings

was conducted in the High Court, insofar as those circumstances might be said to

have had a reasonable impact on the way in which the judgment in this case was

crafted by the trial judge.

10.5 First, it must be said that, commendably, all concerned were anxious that

judgment be given as quickly as possible. There were obvious reasons why it was

important that the Morrisseys should know the result of their case at the earliest 67

possible time. There is also the fact that at least some of the issues which arise in

these proceedings have the potential to also arise in other cases brought before the

High Court claiming negligence arising out of CervicalCheck or where similar cases

are brought before the CervicalCheck Tribunal.

10.6 In that context, the unusual step was taken of dispensing with oral closing

submissions after the parties had filed written submissions subsequent to the evidence

being completed. It should be emphasised that this is an unusual procedure. In

straightforward cases, oral submissions will frequently take place immediately after

the evidence completes. In more complex cases, it may be considered advantageous

to give the parties an opportunity to file written submissions after the evidence has

finished. While it is true that, in many complex cases, written submissions may be

filed in advance, such submissions are necessarily based on the evidence the parties

consider is likely to be given. There will almost inevitably be some difference

between the evidence as it has emerged at the trial (including questions over which

evidence should be preferred in cases of conflict) compared with how either party

might have assumed, in advance, that the evidence was likely to turn out. For that

reason, written submissions which reflect the evidence as actually given, as opposed

to the evidence which might have been anticipated, can be useful.

10.7 But in such cases, it almost inevitably follows that there is some oral debate

after closing written submissions have been filed. The purpose of that debate is to

tease out issues raised and allow the court to clarify, often not least in its own mind,

the precise issues which need to be addressed in the judgment. However, all parties

went along, for understandable reasons, with the truncated procedure adopted in this

case. 68

10.8 While it is entirely commendable that all concerned sought to bring the

proceedings to a close as quickly as possible, it must be acknowledged that truncating

the process does carry with it the risk that not everything will be done quite as

thoroughly as might otherwise have been the case. While proceedings should always

be concluded as quickly as is reasonably possible, it must be emphasised that

truncating proceedings may well have consequences. Where the parties go along with

such a truncated process, then it equally follows that at least some of the

consequences cannot be taken to give rise to any legitimate complaint. In saying that,

it must, of course, be acknowledged that there is an irreducible minimum below

which it is not permissible to go. In the context of the issues which arise under this

heading, a judgment might so lack in reasoning or demonstrable engagement with the

issues that an appellate court could not allow it to stand notwithstanding the process

adopted even with the agreement of the parties. But it does seem to me that it is

appropriate for this Court to take into account the truncated process which was

adopted in these proceedings in assessing whether the reasoning of the trial judge was

adequate.

10.9 As already noted, the first point made under this heading by Quest concerned

the approach of the trial judge to the evidence given by certain American expert

witnesses. It may be that it would have been preferable if the trial judge had gone into

greater detail concerning the actual evidence given by those experts and had given

more detailed reasons, connected with their evidence and the competing evidence

given by the corresponding experts called on behalf of the Morrisseys, for preferring

the case made on behalf of the Morrisseys in that regard. But the trial judge did give

some reasons for preferring the evidence tendered by the Morrisseys’ experts. In that

context, it does not seem to me that it can be said that there was a “clear non- 69

engagement” by the trial judge such that the threshold identified by MacMenamin J.

in Leopardstown Club has been met in respect of this aspect of the case.

10.10 The next aspect of Quest’s case in respect of non-engagement concerned the trial

judge’s approach to blind reviews. There is no doubt that Cross J. did offer some

general comments on the topic of blind reviews and did put forward reasons for his

conclusion that a blind review was not necessary. It would undoubtedly have been

preferable, however, if the trial judge had explained in more detail why he did not

consider that the blind review evidence tendered in this case was preferable to the

views expressed by the experts called on behalf of the Morrisseys. If the process

followed in this case had followed the normal course of events, then there might have

been a basis for suggesting that the judgment in that regard was insufficiently

reasoned. However, it does not seem to me that the judgment falls below the

irreducible minimum of reasoning which would require this Court to set aside the

judgment, whether or not the parties have gone along with a truncated process.

10.11 The third area concentrated on by counsel for Quest related to the trial judge’s

finding in respect of causation. I am of the view that it would have been appropriate

for the trial judge to have set out in more detail the reasons for preferring the evidence

of the Morrisseys’ experts on the causation issue. However, certain reasons were

given for the trial judge’s conclusions on causation and they do not seem to me to fall

below the irreducible minimum of reasoning which, for the reasons already set out, I

consider to be the appropriate threshold having regard to the process adopted in the

trial in the High Court.

10.12 Turning then to the issues relied on by Medlab, it should be recalled that the

first such issue concerned the actual number of cells present on the relevant slide. 70

Using a computer-based method, Medlab’s expert witness concluded that there were

35,500 cells on the slide, which would be well above the threshold for adequacy of

5,000. It seems to me that the debate on this issue became overly-centred on the first

question identified in Penney Palmer, which suggests that a court should initially

decide what the factual situation actually was. It was certainly open to the trial judge

to take the view that the question which must be addressed by a screener in

determining whether a slide is adequate is as to whether there is a sufficient number

of well visualised cells, in accordance with established practice. Whether or not the

method adopted by Medlab’s expert could be said to establish adequacy on that basis

may be debatable. It would, again, have been preferable if the trial judge had given

more detailed reasons for not considering that evidence to be relevant. However, yet

again, some reasons are given and they do not seem to me to fall below the irreducible

minimum threshold.

10.13 The next issue raised on behalf of Medlab complains that there was what was

said to be an inadequate engagement by the trial judge with the evidence given by two

expert screeners called on its behalf, who gave evidence that they had subsequently

looked at the slide in question and had passed it for adequacy. That evidence arose in

the context of the question as to the proper process to be followed in reaching an

adequacy assessment. All of the experts appeared to agree that it was open to a

screener to reach a positive conclusion in respect of adequacy without doing a formal

analysis. This was said to be the proper approach where adequacy was clear. A

formal approach to the assessment of the number of cells was only required to be

adopted where the initial assessment could not be said to have shown the sample to be

clearly adequate. The two relevant witnesses had indicated that they did not consider,

when reviewing the slide in question, that a formal analysis would have been 71

required. However, as counsel for the Morrisseys pointed out, one of Medlab’s own

witnesses had considered that the slide was not adequate and another witness had only

considered it to be adequate because of finding abnormalities. While, again, it might

be said that more detailed reasons could have been given for preferring the evidence

of some of the witnesses over others, the trial judge did give some reasons and, in my

view, the irreducible minimum threshold was not, therefore, met.

10.14 Finally, Medlab also made complaint about the trial judge’s engagement with

the evidence on causation as set out earlier in this judgment. Here, again, there was

competing evidence as to what would have happened had Medlab assessed the

relevant slide as being inadequate, thus leading to a further sample being required.

There was undoubtedly a significant difference of medical opinion as to what might

have occurred in those circumstances. The trial judge did address those issues in his

judgment but did so in a way which might well have fallen short of the level of

reasoning which might have been required had this case followed a normal process.

However, again, it does not seem to me that the level of reasoning of the trial judge

fell below the irreducible minimum threshold.

10.15 It will be seen, therefore, that I would consider that, in respect of some of the

complaints made, it would ordinarily be justified to regard relevant aspects of the

judgment as being insufficiently reasoned, even allowing for the high threshold which

applies in reaching such a conclusion. However, I do not consider that any lack of

reasoning falls below the irreducible minimum which would lead the Court to

overturn the decision of the High Court, irrespective of the manner in which the trial

was conducted. If the judgment of the trial judge had been delivered in circumstances

of ordinary expedition and with the benefit of final oral submissions, it might well 72

have been impossible to regard the judgment as sufficiently reasoned to withstand

challenge. Of course, the very fact that there might have been oral submissions

would, in those circumstances, cast some light on that very question. The focus of the

debate during those oral submissions might give some guidance to the court as to the

extent to which any particular issues truly remained as significant and material at the

final close of the proceedings. Such an assessment is more difficult to reach in the

absence of closing oral submissions directed towards teasing out the true issues which

remain for debate between the parties and which, therefore, impact on the questions

which need to be addressed in the judgment.

10.16 That being said, I consider that, in the particular circumstances of this case,

and having regard specifically to the somewhat expedited and truncated procedure

adopted, the reasoning of the trial judge is adequate to withstand challenge. 73

11. Liability of the HSE

11.1 As noted earlier, the HSE has appealed the findings of the trial judge in

respect of its liability for the alleged negligence of Quest and Medlab. As mentioned,

in this regard the trial judge held that the HSE was primarily liable in respect of the

way in which the tests were carried out but also held that the HSE was vicariously

liable for the negligence found against the two laboratories. The statutory functions

of the National Cancer Screening Service Board, which was responsible for the

establishment of the CervicalCheck programme in 2008, were set out in the National

Cancer Screening Service Board (Establishment) Order 2006 (S.I. 632/2006) (“the

2006 Order”). Article 6(b) thereof provides that the Board was required to:-

“[C]arry out or arrange to carry out a Programme for the early diagnosis of cervical cancer, and arrange for the primary treatment of cervical cancer in such classes of women as may be determined by the Minister from time to time.”

11.2 On the dissolution of the National Cancer Screening Service Board in 2010

(under s. 28 of the Health (Miscellaneous Provisions) Act 2009), the HSE assumed

the functions of the Board. In respect of the trial judge’s finding that the HSE had a

primary liability in respect of the acts of the laboratories, the HSE submitted that the

extent of its duty under the statutory provision quoted above is to carry out, or to

arrange to carry out, a competent cervical screening programme and that this duty had

been complied with. The HSE, it was argued, had not sought to assume for itself a

duty to perform the relevant functions of the laboratories, being the screening and

reporting of smear samples, rather it had only arranged for their performance. In

support of its contention that its duty was solely an organisational one, the HSE 74

submitted that the operation of the CervicalCheck programme was dependent on

contracting out to third party service providers which could provide services with a

turnaround time which the HSE was unable to match. It was further submitted that

while the HSE had sought to impose obligations of quality assurance, this did not in

any way alter the nature of its own duty.

11.3 The HSE disputed the finding that it held a non-delegable duty to take

reasonable care in the interpretation or reporting of smears by individual cytologists

employed by the contracted laboratories. It was accepted that a hospital could be said

to owe a non-delegable duty to provide its patients with skilful treatment and

therefore be liable in negligence for the acts of all of those who administer treatment

in that hospital, whether they are employed by the hospital or engaged as independent

contractors (see, to this end, the judgments of Lord Greene M.R. in Gold v. Essex

County Council [1942] 2 K.B. 293 and Denning L.J. in Cassidy v. Ministry of Health

[1951] 2 K.B. 343). However, the HSE argued that the service provided by the

CervicalCheck programme is not akin to a hospital service and that the persons who

take part in a screening programme are not comparable to patients in the care of a

hospital. To this effect, the HSE relied on the decision of the Court of Appeal for

England and Wales in Farraj v. King’s Healthcare NHS Trust, [2009] EWCA Civ

348, [2010] 1 W.L.R. 2139, where it was held that the defendant hospital was not

liable for the negligent acts of a third party laboratory which had been contracted to

perform tasks relating to genetic screening. This finding was made on the basis that

the claimants in the case had not been admitted to the hospital for treatment and what

was described as the “special duty” that exists between a patient and a hospital, where

the hospital undertakes the care, supervision and control of persons those who are in

special need of care, was therefore not found to be present. 75

11.4 The HSE also sought to distinguish these proceedings from the facts in Byrne

v. Ryan, as was cited by the trial judge in support of his conclusion, which concerned

the imposition of a primary liability on the defendant hospital for the negligence of a

consultant in the course of his treatment of the plaintiff. This case, the HSE

submitted, was in fact decided by Kelly J. on the basis of the existence of an

employment relationship between the hospital and the consultant, who was a

practitioner in the full time service of the hospital in question.

11.5 Further, the HSE took issue with the acceptance by the trial judge of the

principles of Woodland v. Essex County Council, a decision of the U.K. Supreme

Court which approved of the doctrine of the non-delegable duty, as identified in the

“hospital cases”, Gold v. Essex County Council and Cassidy v. Ministry of Health,

cited above. The “essential element” giving rise to this duty, as described by Lord

Sumption at para. 24 of his judgment, is the defendant’s control over the claimant for

the purpose of performing a function for which the defendant has assumed

responsibility. The criteria required to establish the existence of a non-delegable duty

were set out in the preceding paragraph of his judgment as the following:-

“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve 76

an element of control over the claimant, which varies in intensity from one situation to another…

(3) The claimant has no control over how the defendant chooses how to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”

11.6 The HSE argued first that none of the above criteria were fulfilled in respect of

the role it performs in the provision of the CervicalCheck Programme, other than

factor (3), as it was conceded that Ms. Morrissey did not have any control over the

screening of her samples or her treatment. Furthermore, the HSE contested the trial

judge’s approval of the doctrine of non-delegable duty as a significant development in

Irish law which, it submitted, has not been expressly adopted by the courts in this

jurisdiction, and which represented a form of organisational or enterprise based

liability which would be more appropriately adopted by way of legislative

determination.

11.7 Finally, the HSE argued that any imposition of a non-delegable duty must be

justified by a strong policy rationale. To this end it was submitted that, in fact, a

finding of primary liability would have negative consequences for the operation of a

number of HSE programmes that involve the outsourcing of health services and that

the associated increased burden of risk on the HSE would effectively lead to a

reduction in the scope of the services which could be provided. 77

11.8 Counsel for the Morrisseys, in response, submitted that the non-delegable duty

of care owed by the HSE, both under statute and at common law, arises from the

nature of its relationship with the women participating in its cervical screening

programme. It was argued that a statutory non-delegable duty arises from the

wording of Article 6(b) of the 2006 Order, in which it is said to be implicit that the

HSE has a duty both to take reasonable care in the provision of the programme and to

ensure that those carrying out services on its behalf exercise reasonable care. It was

submitted that this statutory duty cannot be evaded on the basis of the argument that

the HSE’s obligations were to be discharged by an independent contractor.

11.9 At common law, the Morrisseys submitted, a non-delegable duty of care arises

under the criteria set out in Woodland, as quoted above, and further suggested that

such a duty has been recognised in this jurisdiction in Byrne v. Ryan. Counsel for the

Morrisseys disputed the HSE’s interpretation of the decision in Byrne as one which

was determined solely on the basis of an employment relationship. Particular reliance

was placed on para. 126 of the judgment of Kelly J., where it was held that the

hospital owed a primary duty to the plaintiff given the fact she was a public patient

who was referred to the hospital and not to an individual consultant. In that regard,

Kelly J. cited the following comments of Denning L.J. in Cassidy v. Ministry of

Health with approval:-

“I take it to be clear law, as well as good sense, that, where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.

… 78

…[T]he hospital authorities accepted the plaintiff as a patient for treatment, and it was their duty to treat him with reasonable care. They selected, employed and paid all the surgeons and nurses who looked after him. He had no say in their selection at all. If those surgeons and nurses did not treat him with proper care and skill, then the hospital authorities must answer for it, for it means that they themselves did not perform their duty to him.”

11.10 The Morrisseys argued that the five criteria as set out in Woodland, which are

required to establish the existence of a non-delegable duty, had in fact been fulfilled

in this case. First, it was submitted, Ms. Morrissey was one of a number of persons in

the care of the CervicalCheck programme for the purpose of their protection from

developing cervical cancer and she was in a position of vulnerability as a result,

because a misreading of her samples would give rise to a risk of significant harm.

Counsel suggested that the HSE had recognised this responsibility to protect Ms.

Morrissey against such a risk by providing detailed and extensive quality assurance

guidelines to the contracted laboratories.

11.11 Second, it was submitted that an antecedent relationship existed between Ms.

Morrissey and the HSE, as the CervicalCheck programme was a public service which

involved the provision of medical care. The programme, it was said, involved both

the screening and, if required, treatment of the relevant population and independent

laboratories had been contracted to screen smear samples as well as to direct the

future treatment of those screened. Counsel sought to distinguish these facts from the

situation of the claimants in Farraj, as relied on by the HSE. In that case, the

claimants resided outside the U.K. and sought to have a sample of foetal tissue tested

for analysis. Their consultant in Jordan sent what was thought to be an adequate

sample to the NHS, which did not have the capacity to clean and culture the sample

and so this sample was sent on to an independent laboratory for that purpose. It was 79

held that the NHS did not have a non-delegable duty towards the claimants, and

counsel for the Morrisseys submitted that this was due to the absence of the central

requirement of an antecedent relationship between the parties to the case.

11.12 The fulfilment of the third criterion, that of an absence of control on the part of

Ms. Morrissey over the performance of the functions of CervicalCheck, was conceded

by counsel for the HSE. Fourth, it was submitted by counsel for the Morrisseys that

the HSE had delegated to the laboratories the task of screening and reporting of

smears, which was said to be an integral part of the HSE’s contended duty to take

reasonable care in the provision of the programme. That the HSE had retained, in the

terms of its contracts with the laboratories, full supervisory jurisdiction over the

provision of these services, by means of systems of quality assurance, audits and site

inspections, was suggested by counsel to be indicative of an assumption of

responsibility on the part of the HSE over the performance of these functions.

Further, it was contended that the fact that the HSE had delegated one of its functions

to a third party because it did not have sufficient capacity to perform that function is

immaterial. Finally, it was submitted that, if the preceding criteria have been fulfilled,

it followed that any negligence established against Quest and Medlab arose in the

performance of the function assumed by the HSE and delegated to the laboratories,

that is, in the screening and interpretation of Ms. Morrissey’s smear tests. I will turn

to a discussion of the issues arising in respect of the possible primary liability of the

HSE in due course. However, I will first set out the position of the parties in respect

of vicarious liability.

11.13 As noted earlier, the HSE also contested the trial judge’s finding that it is

vicariously liable for the activities of Quest and Medlab by reason of the control 80

which the HSE exercised over the laboratories under the terms of their contractual

arrangements. It was submitted that vicarious liability often arises in an employment

relationship, or one analogous to the same, and that the default position under tort law

is that a party is not generally liable for the acts of an independent contractor such as

Quest or Medlab.

11.14 On the facts of this case, the HSE submitted that it possessed no direct control

over the laboratories which would suggest that their relationship was analogous to that

of an employment relationship, as was said to be required to establish vicarious

liability in the judgment of Hardiman J. in O’Keeffe v Hickey [2008] IESC 72, [2009]

2 I.R. 302. In particular, the HSE contended that it had no real and exercisable power

of control over the acts of the cytoscreeners. Further, the HSE disputed the contention

that the provision of quality assurance guidelines in its contracts with the laboratories

was indicative of vicarious liability. It was said that these provisions do not “guide

the hand” of those carrying out the expert functions of the laboratory.

11.15 Moreover, it was argued that the concept of control is subsidiary to the

ultimate question as to whether a relationship akin to an employment relationship

exists. On that issue, the HSE submitted that, by the terms of their contracts, Quest

and Medlab were in business on their own account and provided a service that the

HSE could not provide in terms of turnaround speed. This was said to be indicative

of the engagement of an independent contractor for its skills and expertise rather than

of the existence of a relationship analogous to employment. Furthermore, the HSE

contended that the laboratories were neither “part of the organisation” nor

“integrated” into the business of the HSE in a manner which could give rise to the

imposition of vicarious liability. The HSE pointed to a number of features of the 81

business relationship between itself and the laboratories which, it was said, indicated

that the true nature of the relationship involved the engagement of an independent

contractor. Amongst those relevant factors was said to be the fact that the laboratories

provided their own equipment and had responsibility of the management of their

affairs, together with the fact that the laboratories had assumed the financial risk of

the enterprise and that the laboratories had the opportunity for profit through the

arrangement of their affairs.

11.16 Finally, it was submitted on behalf of the HSE that the policy considerations

which usually underpin a finding of vicarious liability, such as risk creation and

enterprise liability, as referred to by Hardiman J. in his judgment in O’Keefe, are

absent in the present case. The HSE, in its arrangement of the CervicalCheck

programme, is not operating for profit and is not “creating” any risk, in the

commercial sense.

11.17 On behalf of the Morrisseys, it was submitted that, by virtue of what was said

to be the extraordinary degree of its control over every aspect of the laboratories’

screening of the slides, the HSE is vicariously liable for the negligence of Quest and

Medlab. It was contended that the essence of vicarious liability is control, as held by

Hardiman J. at para. 47 of his judgment in O’Keefe, and that the question of vicarious

liability is no longer resolved simply by the question of whether the tortfeasor is an

independent contractor.

11.18 In dictating the methodology by which the slides would be reviewed by the

labs, it was submitted, the HSE exercised a degree of control that would not ordinarily

be exercised over a truly independent contractor. Counsel for the Morrisseys

contested the HSE’s reliance on the decision of the Supreme Court in O’Keefe, where 82

it was held that the State was not vicariously liable for the sexual assault of the

claimant perpetrated by the claimant’s national school teacher. That case, it was

submitted, was based on an entirely different factual matrix, being that the sexual

assault committed by the relevant teacher evidently fell outside the scope of his

employment. In addition, the rules which the Minister for Education had laid down

for national schools were general in nature and did not go to the governance of the

detailed activities of any individual teacher. On the facts of this case, it was

submitted, the acts of the cytoscreeners clearly fell within the scope of their

employment and the HSE exercised a high level of control over the screening

activities at the laboratory. Furthermore, counsel indicated that the application of the

“close connection” test, as adopted by Fennelly J. in O’Keefe and with whom the

majority of the Supreme Court agreed, which considers the closeness of the

connection between the work which the individual was engaged to carry out and the

tortious act, would also lead to a finding of vicarious liability in this case.

11.19 Finally, on the level of policy, it was argued on behalf of the Morrisseys that

the HSE ought not to be able to divest itself of any responsibility for failings in the

delivery of public health services through the outsourcing of its services

11.20 In the light of those submissions, I propose to turn firstly to the question of

whether the trial judge was correct to hold that the HSE was vicariously liable for the

actions of the laboratories.

12. Vicarious Liability

12.1 Both sides sought to place reliance on the judgment of Hardiman J. in O’Keefe

v. Hickey. There was, however, something of a dispute between the parties as to

whether the key component in the relevant test centred around the legal relationship 83

between the parties or on the degree of control which one party exercised over the

way in which the other carried out its task.

12.2 It may be said that where difficult or novel issues arise concerning the

application of well-established concepts in common law to particular circumstances, it

may be useful to identify what the fundamental principle or purpose behind the law

concerned may be, for that may give valuable guidance as to how the practical rules

regarding the application of the relevant aspect of the common law might be applied

in such circumstances. However, there are areas where it may be difficult to discern

any overarching but consistent fundamental principle. Rather, in some areas, the case

law has grown up as part of an attempt to deal with a range of different circumstances.

In some such cases it may well be that the proper approach to the evolution of the

common law in such an area is to avoid over-radical developments, but to extend the

parameters of the established case law to novel or evolving areas in a manner which is

at least analogous to the way in which the existing case law has developed.

12.3 The former might be described as a “back to first principles” model. The

latter might be described as an “evolution by analogy” approach. In my view, the

former approach is preferable should it prove possible to discern, with any real degree

of clarity, what the underlying principles are. However, the latter approach may be

more appropriate where it is not really possible to identify a coherent underlying basis

which informs all of the existing case law.

12.4 It will be necessary to return in due course to the most recent judgment of this

Court on the issue of vicarious liability, being Hickey v. McGowan and anor [2017]

IESC 6, [2017] 2 I.R. 196. However, in this context, it is appropriate to note that

O'Donnell J. reached his conclusions on the proper principles to be applied in that 84

case by adopting what he considered “to be the cautious and incremental approach

outlined by Fennelly J. in O’Keefe”. O'Donnell J. indicated that he proposed adopting

that approach, having considered what seemed to be the different approaches adopted

by, respectively, Hardiman and Fennelly JJ.

12.5 In this same context, it may be appropriate to refer to Robinson v. Chief

Constable of West Yorkshire Police [2018] UKSC 4, [2018] 2 W.L.R. 595. While the

Supreme Court of the United Kingdom in that case was concerned with determining

whether a duty of care existed in the particular circumstances of that case, it did make

comments which seem to me to be appropriate regarding the broader issue of how one

should approach the evolution of the common law. In Robinson, it was indicated that

what is required in such circumstances is:-

“[a]n approach based, in the manner characteristic of the common law on precedent, and on the development of the law incrementally and by analogy with established authorities”.

I would only add the qualification that, where the existing case law can be seen to

derive from some underlying principle or principles, it may be more appropriate to

start by seeking to identify how those principles should direct the incremental

evolution of the common law. However, that being said, it seems to me that Robinson

provides cogent reasoning as to why the “evolution by analogy” approach may well

be appropriate in many circumstances not confined to the narrow question of the

determination of the existence or otherwise of the duty of care which was at issue in

that case.

12.6 There is, in my view, a strong argument for the view that the law of vicarious

liability may be more properly dealt with under the “evolution by analogy” approach. 85

That it may be appropriate to impose liability on one person for the negligence of

another is, of course, well-established as a legal principle. It would be surprising

indeed if, for example, a supermarket could avoid liability for an injury suffered as a

result of negligence by simply asserting that the fault was all that of a specified

employee. However, there is a strong basis for suggesting that the categories of case

in which vicarious liability has been established do not easily give rise to being

explicable by reference to some underlying principle or policy. In Imperial Chemical

Industries Ltd v. Shatwell [1965] A.C. 656 at p. 685, Lord Pearce said that “the

doctrine of vicarious liability has not grown from any clear, logical or legal

principle”. Likewise, Tipping J., in the New Zealand Court of Appeal case of S. v.

Attorney General [2003] NZCA 149, [2003] 3 N.Z.L.R. 450, commented that the

literature was “replete with comments concerning the lack of any coherent or agreed

jurisprudential underpinning”. I respectfully agree with those comments. It seems to

me to follow that any evolution of the law of vicarious liability or the application of

that law to new or evolving circumstances requires an approach much closer to the

“evolution by analogy” method to which I have already referred. It is in those

circumstances that it is appropriate to look at how the law on vicarious liability has

developed both in this jurisdiction and in other relevant common law jurisdictions in

relatively recent times.

12.7 It is probably correct to say that, in its original form, the concept of vicarious

liability stemmed principally from the legal relationship between the actual

wrongdoer and the party who was held to be legally responsible for the actions of the

wrongdoer even though not personally at fault. Thus, the relationships of employer

and employee, principal and agent or partner and the other members of a partnership 86

have been all held to potentially give rise to the possibility of liability being placed on

a person who was not themselves directly responsible for any relevant wrongdoing.

12.8 However, this Court, in Moynihan v. Moynihan [1975] I.R. 192, did extend the

concept of vicarious liability to a situation where there was sufficient control by one

family member over the actions of another family member, who committed the

negligent act in relation to the pouring of tea, which led to an injury. It is clear,

therefore, that, for at least the last 45 years, the Irish courts have recognised that

informal relationships involving some degree of delegated function and control can

give rise to vicarious liability.

12.9 Likewise, the courts in Canada (see John Doe v. Bennett [2004] 1 S.C.R. 436)

and England (see for example Various Claimants v. The Catholic Child Welfare

Society & Ors [2012] UKSC 56, [2013] 2 A.C. 1) have also accepted that vicarious

liability can attach to relationships that are considered to be “akin to employment”. It

would seem that many of the Canadian and English cases stem from a desire to

ensure, as Lord Phillips put it in Catholic Child Welfare Society, that, insofar as it was

fair, just and reasonable, liability for tortious wrong was borne by a defendant with

the means to compensate the victim. I have to say that I am not convinced that,

laudable as that aim may be, such analysis adds very much to the difficult task of

determining the boundaries of vicarious liability. In that context, I would very much

agree with the observation of O'Donnell J., which is set out at para. 43 of his

judgment in Hickey v. McGowan, regarding the function of vicarious liability.

12.10 Some persons are injured through the fault of others who are neither insured

nor have the means to compensate. Obviously the advisors of such persons will seek

to extend liability, if it be possible, to anyone who might be a so-called “mark” for 87

damages. But the real question concerns how far it is possible to extend the concept

of vicarious liability. Stating that it will be done when it is “fair, just and reasonable”

does not really contribute very much to the analysis, for it simply begs the question as

to the kind of circumstances that can be regarded as coming within that criteria. The

real issue is to identify the type of situation which may legitimately give rise to

vicarious liability.

12.11 There were undoubtedly good reasons for departing from an overly-technical

view which confined liability to cases coming within specific legal relationships.

Persons may well not fit, strictly speaking, within the definition of, for example,

employee or agent but nonetheless may be doing something very similar to that which

would be done by an employee on behalf of an employer or by an agent on behalf of a

principal. There are sound reasons why vicarious liability should not depend on

whether, technically, a person might be regarded in law as an employee or as an

agent.

12.12 For example, it is interesting to note that a number of the Canadian and

English cases arose in the context of sexual abuse within religious organisations.

Clearly, the concepts of employee or agent do not always fit neatly within the

structures typically encountered within religious orders. Furthermore, such

organisations are not normally run as businesses and do not give rise to the kind of

relationships with a commercial enterprise that would exist in, for example, a private

company. But the substance of the relationship is similar. A member of a religious

order who teaches in a school operated by that order may or may not, strictly

speaking, have been considered to have been an employee, but their relationship with

the school and those who manage or own it would be very similar to the relationship 88

between a teacher employed in a privately owned school and the owners of that

school.

12.13 Similarly confining the analysis to the question of control might also lead to

unsatisfactory results. Obviously, employers not only identify the work which

employees are to do but also exercise a significant degree of control over how it is to

be done. However, the extent to which actual control, as opposed to a theoretical

entitlement to control, may be exercised in practice may vary greatly from

employment to employment. This will particularly be the case where an employee

possesses a particular skill or expertise which may not be shared by those who

manage the affairs of the employer. The very point of employing the expert

professional may be to ensure that certain types of work will be carried out in a way

which that professional deems appropriate in circumstances where the employer

would not be able to have the work carried out with the requisite expertise in any

other way. The reality of the employer exercising any real degree of control over how

the work is to be carried out in such a case may be highly theoretical. Thus, just like

an overly-technical reliance on the legal basis for the relationship between the parties

may present an unduly narrow focus, so also a complete emphasis on control may not

provide a satisfactory answer either.

12.14 In those circumstances, it is important to return to Hickey v. McGowan. In that

case, the issue was as to the potential liability of a religious order for acts of sexual

abuse committed by one of its members. In assessing the question of whether the

order concerned might be vicariously liable in such circumstances, O'Donnell J. said

the following at para. 38 of his reported judgment:- 89

“At a crude level the question of whether a relationship between [the first defendant] and [the second defendant] in any particular case is sufficient to give rise to vicarious liability can be addressed by asking how closely the relationship approximates to the classic case of employer/employee. Some of the cases have taken this approach. There is however in my view something slightly absurd in seeking to draw comparisons between the case of religious orders and businesses. Furthermore, the tests and language applicable when considering the case of employment and analogous relationships, such as ‘enterprise’ and ‘risk’ are not easily applicable in the case of religious orders. Indeed, to apply tests drawn from the relatively modern world of commerce and industry to religious organisations which have existed for centuries is in my view, to miss the sheer scale and impact of religious institutions on peoples' daily lives, particularly in the Ireland of the first three-quarters of the 20th century. The relationship between members of an order and his or her fellow members and indeed the order itself was much more intense, constant and all pervasive than the relationship between an employer and an employee, or in the old language of the late Victorian cases, a master and his servant. Everything in the organisation of religious orders is directed towards emphasising the collective. The vow of obedience involves subjugation of individual will to that of the superior. The vow of poverty has the effect of making the member dependent upon the order's collective resources. The vow of celibacy emphasises the focus of the member on relationships with the order and with God. The objective of teaching young people is not merely incidental to the work of an order, it is indeed the manner in which the order seeks to achieve its object. For a member of the order, teaching was not merely a job it was a religious vocation. There can no doubt that Brother Cosgrove was in the classroom in Sligo between 1969 and 1972 because he was a member of the Marist Order. That was known, understood and accepted by pupils and parents, and when such individuals looked at the various brothers who staffed the school at any given time, they saw, and were intended to see not just a teacher, but a Marist.” 90

12.15 O'Donnell J. went on to conclude that, at least at the level of principle, a

religious order could be vicariously liable in such circumstances. The reasoning in

that regard included the following at para. 37:-

“Looked at in this way, it should be apparent that this is in fact not the most difficult issue in the case. There is evidence that the second defendant was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how the second defendant came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.”

12.16 On that basis, it seems to me that the overall test must be one which considers

whether the nature of the relationship, including the question of control, is such that it

is similar in substance, if not in form, to the types of relationships which have

traditionally been regarded as giving rise to vicarious liability.

12.17 The Morrisseys argued for greater attention to be paid to the degree of control

exercised by the HSE which, it was said, was significant. The HSE emphasised the

fact that the laboratories were independent contractors and that the screeners were

employees of the laboratories and not of the HSE. There is, in any event, often quite a

close correlation between the legal relationship between two parties which arises

where one carries out work on behalf of another and the degree of control exercised.

Indeed, one of the criteria which courts consider in determining whether a relevant

contractual relationship involves one of an independent contractor, sometimes 91

described as a contract for services, or of employment, often described in this context

as a contract of service, is the degree of control exercised. It was often said that a key

distinction in that context lies between a case where, on the one hand, the employer

determined what the other party was to do and, on the other hand, determined not only

what the other party was to do but also how they were to do it. There can obviously

be grey areas between circumstances where one party simply contracts that a task is to

be carried in return for payment and leaves it entirely up to the other party to choose

the method of delivery compared with a case where the contracted party is under

some form of direct supervision. Skilled employees may very well be left to a large

extent to their own devices. Many contracts which are very much at arm’s length will

contain clauses specifying the standards to be achieved.

12.18 In my view, the ultimate question which the Court must address is as to

whether the level of engagement by one party with the way in which the other party is

to carry out a task entrusted to it is sufficient to conclude that there is a real extent to

which it can be said that the contracted party is closely integrated into the activities of

the employer, not just in respect of the ends to be achieved but as to the manner in

which those ends are to be pursued. It is, in my view, difficult to give any true red

line, for the type of circumstances which will arise will be many and varied. The

legal relationship will certainly be relevant. So, too, will the degree of control. But

neither are necessarily decisive particularly where the substance of the practical

situation may not always correspond with legal form.

12.19 In that context, it is clear that there were undoubtedly significant provisions in

the relevant contracts between the HSE and the laboratories which specified certain

standards to be applied. But it does not seem to me that those requirements can 92

properly be characterised as involving the HSE in the task of directing how the

laboratories were to go about their work. In any complex situation it would be

extremely surprising if parties entering into a contract of the type with which this case

is concerned did not impose measures by reference to which the quality of the work to

be done could be assessed. Such contracts, for example, frequently specify that work

is to be carried out in accordance with a particular recognised standard, even if that

standard is not legally binding. It can hardly be said that a clause of that type implies

that one contracting party is taking control over how the other is to do their work.

The manner in which the second party is to ensure compliance with the quality control

terms of the contract is left up to themselves.

12.20 Taking a broad view of the relations between the HSE and the laboratories, it

seems to me that both the relationship between those parties (which is clearly that of

independent contractors) but also the level of control exercised by the HSE is such

that it cannot give rise to vicarious liability. I would, therefore, hold that the HSE was

not vicariously liable for any negligence established against the laboratories.

However, that leaves the question of whether it can be said that the HSE was

primarily liable for any such negligence. I, therefore, turn to that question.

13. Primary Liability

13.1 There are a number of ways in which a party who has an established

relationship with someone such as a customer, client or a patient, but who ultimately

arranges for relevant work to be done by a third party, may become primarily liable in

negligence if something goes wrong. Perhaps the most common such circumstance

arises where it can be said that the party with the primary relationship with the

customer knew or ought to have known that there was a real risk that the work which 93

was passed on to a third party would not be carried out in an appropriate fashion. For

example, a failure to contract with persons of proven ability in the area might well

provide the basis for a claim in that regard. However, no such claim is advanced in

the circumstances of this case.

13.2 However, there is a second, and it might be said potentially developing, area

of primary liability which comes under the heading of a so-called “non-delegable

duty”. Under this heading, a party who has the primary responsibility with the

customer, client or patient may be held, in certain circumstances, to have accepted a

duty to ensure that any relevant arrangements will be carried out in a non-negligent

way and may be held to have done so in circumstances where that duty remains in

place irrespective of whether the contracting party chooses to carry out its side of the

arrangement itself or to arrange for a third party to do so.

13.3 It seems to me that three questions arise under this heading in the particular

circumstances of this case. The first is as to the extent to which the concept of “non-

delegable duty” arises in Irish law. The second is as to the parameters of the

applicability of such a duty, should it be held to exist in principle. The third is as to

whether it can be said that the arrangements of the HSE in respect of CervicalCheck

can be said to come within the scope of any such principle so as, in turn, to lead to the

HSE being primarily liable for any negligence established in respect of laboratories

whom it contracts to carry out work in the context of that scheme.

13.4 The principle which gives rise to the existence of the non-delegable duty has

been accepted by the courts of the United Kingdom, most notably in the decision of

the U.K. Supreme Court in Woodland v. Essex County Council, as referred to above.

In that case, the duty of a local education authority towards pupils in its care was held 94

to be non-delegable in circumstances where a pupil suffered serious injury in the

course of a school swimming lesson conducted by swimming instructors who were

not employed by the education authority and whose services were provided to the

authority by an independent contractor. Whilst that decision represents the most

comprehensive analysis of the doctrine of non-delegable duties provided by the U.K.

Supreme Court to date, a number of U.K. authorities had previously indicated that, in

certain circumstances, the duty of a party can extend beyond taking reasonable care in

the performance of their tasks, to ensuring that reasonable care is taken by anyone to

whom those tasks are delegated.

13.5 As indicated by Lord Sumption in his judgment in Woodland, the

characterisation of non-delegable duties has its origins in the law of nuisance and in

the rule in Rylands v. Fletcher (1868) LR 3 HL 330, where strict liability may be

imposed irrespective of fault on the defendant’s part and where a defendant can be

held responsible even when the acts complained of are committed by independent

contractors. The category of non-delegable duties was subsequently extended to

include situations involving a duty to take reasonable care, as in Hughes v. Percival

(1883) 8 App Cas 443, where Lord Blackburn held in the House of Lords that the

defendant had a duty to ensure that reasonable skill and care was used when carrying

out work which involved a risk to the party wall which divided his house with that of

the plaintiff’s. It was held that this duty could not be discharged by delegating the

performance of the work to a third party and thus the defendant was found liable for

the negligence of the builder whom he employed to do the work which had caused

damaged to the plaintiff’s house. 95

13.6 Subsequent to this, the principle of the non-delegable duty was further

developed in the case law with reference to the character of the relationship between

the plaintiff and the defendant and consideration of whether the defendant has

assumed responsibility for the exercise of due care by a third party to whom the

defendant may delegate the performance of his or her functions. This analysis first

arose in the employment context, where it was held that an employer had a personal

duty to provide a safe system of work and that, where he or she has appointed an

agent to perform this duty, the employer remains responsible for the agent’s negligent

acts (see Wilsons & Clyde Coal Ltd. v. English [1938] A.C. 57). This principle was

affirmed by the House of Lords in McDermid v. Nash Dredging and Reclamation Co

Ltd. [1987] A.C. 906, where the defendant company, who had employed the plaintiff

as a deckhand, was held to be liable for the negligence of an independent contractor,

the captain of the ship on which the plaintiff worked, who had failed to operate a safe

system of work.

13.7 In the “hospital cases” previously mentioned, a series of decisions of the Court

of Appeal for England and Wales, it was suggested that a hospital holds a non-

delegable duty to take reasonable care in the provision of care to its patients. In Gold

v. Essex County Council, a local authority which operated a voluntary hospital was

held liable for the negligence of a radiographer which it employed. While the

majority of the Court of Appeal decided the case according to the principles of

vicarious liability, in his minority judgment Lord Greene M.R. held that the hospital

had assumed the obligation to treat the plaintiff patient, stating that this was the

“natural and reasonable inference” to be drawn from the authority’s method of

conducting their affairs and the nature of the radiographer’s engagement, and that the

authority was therefore liable if the persons employed by them to perform the 96

obligation on their behalf act without reasonable care. At pp. 301-302, Lord Greene

M.R. held that:-

“… [T]he extent of the obligation which one person assumes towards another is to be inferred from the circumstances of the case. This is true whether the relationship be contractual (as in the case of a nursing home conducted for profit) or non-contractual (as in the case of a hospital which gives free treatment). In the former case there is, of course, a remedy in contract, in the latter the only remedy is in tort; but in each case the first task is to discover the extent of the obligation assumed by the person whom it is sought to make liable. Once this is discovered, it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf; and this is equally true whether or not the obligation involves the use of skill. It is also true that, if the obligation is undertaken by a corporation, or a body of trustees or governors, they cannot escape liability for its breach, any more than an individual can; and it is no answer to say that the obligation is one which on the face of it they could never perform themselves. Nor can it make any difference that the obligation is assumed gratuitously by a person, body or corporation which does not act for profit: Mersey Docks Trustees v Gibbs….”

13.8 In another case involving the negligent acts of employed medical staff,

Cassidy v. Ministry of Health, again the majority of the Court of Appeal reached its

decision on the application of principles of vicarious liability. As quoted above at

para. 11.9, Denning L.J. in his minority judgment considered that the critical factor

was not the hospital's relationship with the doctor or surgeon, but its relationship with

the patient, arising from its acceptance of the patient for treatment. This, he

concluded, meant that the hospital authorities are liable for the negligence of a

hospital worker in the course of the treatment of a patient, regardless of whether the

worker is employed under a contract of service or a contract for services. Denning

L.J. restated this analysis in his minority judgment in Roe v. Minister of Health [1954] 97

2 Q.B. 66, at p. 82. While the principle of a hospital’s non-delegable duty towards its

patients was referred to with approval in an obiter comment of Lord Browne-

Wilkinson in his X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, at p.

740, the underlying principle identified by Lord Greene M.R. and Denning L.J. was

first adopted by the U.K. Supreme Court in Woodland.

13.9 In Woodland, reflecting on the foregoing development of the law in this area,

Lord Sumption considered that there are two broad categories of case in which a non-

delegable duty has been held to arise. The first such category was described as a

“large, varied and anomalous class of cases” in which a defendant employs an

independent contractor to perform some function which is either inherently hazardous

or liable to become so in the course of his work. The second category of cases were

held to involve circumstances where a protective relationship exists between the

defendant and the plaintiff. Considering the latter category as that which was relevant

to the facts of Woodland, Lord Sumption referred to three critical characteristics in

identifying the existence of such a duty, at para. 7 of his judgment:-

“First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own.”

13.10 In an effort to articulate the exceptional circumstances in which a non-

delegable duty of care may arise, Lord Sumption clarified that the question cannot 98

depend simply on the degree of risk involved in the relevant activity. As previously

referred to, five “defining features” of a non-delegable duty were set out at para. 24 of

his judgment, which require to be restated here in full:-

“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”

13.11 Lord Sumption held that the fact of the defendant’s control over the

environment in which the injury was caused was not an essential element in this kind 99

of case, and where a non-delegable duty arises, the defendant is liable despite the fact

that he may have no control at all. In fact, the “essential element” of this type of case,

he continued at para. 24 of his judgment, is “control over the claimant for the purpose

of performing a function for which the defendant has assumed responsibility”.

Furthermore, it was held that a non-delegable duty of care should be imputed to those

providing critical services only in circumstances where it would be fair, just and

reasonable to do so.

13.12 On the abovementioned criteria, Lord Sumption held that the imposition of a

non-delegable duty was not an unreasonable burden on the education authority. In

particular, as noted by both Lord Sumption and Lady Hale in her concurring

judgment, the outsourcing of the educational and supervisory functions of schools was

a recent phenomenon and these were traditionally performed by staff, for whom the

authority would have been vicariously liable. If, on analysis, the duty of the authority

was not to perform the relevant function but only to arrange for its performance, then

it would not be liable for the negligence of independent contractors (see Myton v.

Woods (1980) 79 LGR 28). On the facts of the case, however, it was concluded that

the alleged negligence occurred in the course of the educational functions which the

school assumed an obligation to perform and had delegated to its contractors, and that

if negligence and resultant injury were found, the educational authority is in breach of

duty.

13.13 Lord Sumption’s judgment in Woodland has been subsequently considered by

the U.K. Supreme Court in Armes v. Nottinghamshire County Council [2017] UKSC

60, [2018] 1 All E.R. 1, where it was held that the imposition of a non-delegable duty

on a local authority to ensure that reasonable care was taken for the safety of children 100

in care, while they were in the care and control of foster parents, was too broad and

that the responsibility with which it would fix local authorities was too demanding. In

light of policy considerations and the relevant statutory provisions, the Court

concluded that the duty of the local authority was not to perform the function of the

provision of daily care, in the course of which the plaintiff had been abused, but rather

to arrange for, and then monitor, the performance of this function.

13.14 It does not appear that this Court has ever been asked to fully consider either

the question of whether such a principle applies in Irish law and, if so, whether the

criteria for determining that a non-delegable duty arises are the same as those

identified in the United Kingdom case law.

13.15 While the United Kingdom case law sets out quite detailed criteria for

assessing whether such a duty can be said to exist in particular circumstances, it does

seem to me to be necessary to consider the appropriate approach to be adopted in

determining whether the concept of a non-delegable duty should be extended to a

category of case which has not yet been the subject of a specific ruling by the courts.

In that context, it is appropriate to refer back to the overall analysis set out in the

section of this judgment concerning vicarious liability which suggests that a court

should be informed by any underlying principle, if there be one, but should also, to

the extent that it is not possible to identify any underlying principle, adopt an

incremental approach.

13.16 There are, it is clear, certain types of duty which are owed to a very wide

number of persons under the long established neighbour principle. When we drive a

car, we owe a duty of care to ensure that the car is safely driven and owe that duty to

anyone who happens to be in the vicinity, be they the occupants of another vehicle, 101

cyclists or pedestrians. It does not require any particular prior relationship to impose

such a duty. The happenstance of an individual being a user of the same piece of

roadway as the driver creates, in itself, a sufficient proximity for a duty of care to

arise.

13.17 But there are other circumstances where some form of relationship is required

between parties in order for a duty of care to arise in the first place. Professional

persons owe a duty of care to their clients and patients precisely because they have

undertaken the relationship concerned. That relationship, whether based on contract

or otherwise, informs the parameters of the duty. In such circumstances, it is easy to

see that there is a strong case for suggesting that someone who assumes that duty of

care cannot absolve themselves from their obligations simply by arranging that a third

party will carry out some of the activity which that duty requires to be accomplished.

On that basis, it does seem to me that it is appropriate to recognise that a relationship

may give rise to some form of non-delegable duty. To hold otherwise would be to say

that a party who enters into a relationship giving rise to a duty of care could escape

from that duty simply by inviting someone who was not an employee, or over whom

they did not exercise a sufficient degree of control, to carry out some of the duty

concerned.

13.18 As noted by Lord Sumption, the courts of the U.K. have identified a number

of types of situation where a non-delegable duty of care may exist. It is not necessary

for the purposes of this judgment whether all such categories have a counterpart in

Irish law. For present purposes, it is sufficient to note that, for the reasons analysed in

the preceding paragraphs of this judgment, it is appropriate to consider that there is

potentially at least one underlying principle behind the concept of the non-delegable 102

duty, being that such a duty derives from a particular relationship between the parties.

However, the identification of that underlying principle is not particularly helpful in

defining the parameters of the type of relationship which will be held to give rise to a

non-delegable duty. In that context, it seems to me that the incremental approach by

analogy provides the best assistance to the Court in attempting to map out the

parameters of the circumstances which give rise to such a duty.

13.19 It must be recalled that one of the matters identified by both Lord Sumption

and Lady Hale in their respective judgments in Woodland as being relevant in

assessing the extent of any such duty was the fact that certain functions had

traditionally been performed by staff of the schools in question where the outsourcing

of the functions in question was a relatively recent phenomenon. That analysis may

assist in pointing to the appropriate direction of any incremental approach.

13.20 In the particular context of this case, it may also be appropriate to have regard

to the fact that there have, since the adoption of widespread publicly funded health

measures, been significant developments in the way in which the delivery of medical

care is structured. It is, of course, necessary to acknowledge that there continue to be

significant differences between the way in which health services are provided in

Ireland in comparison with equivalent systems in the United Kingdom. Even where

patients have medical services provided to them free of charge, those services are

often provided in Ireland to a much greater extent by the private sector under

arrangements with the HSE. But notwithstanding those differences, it remains the

case that a significant development in the provision of medical services since the

Second World War has been a move from the historical position where most of those

services were provided under some form of contract between the patient and the 103

medical service provider (whether that be a hospital, a consultant or a doctor) to one

where many such services are now provided under various publicly funded schemes.

In the past, a patient who contracted for medical services would almost certainly have

been entitled to rely on a term (whether express or implied) of their contract to the

effect that the services in question would be provided in a non-negligent fashion. In

present conditions, many such services are simply provided under publicly funded

schemes without any contractual relationship.

13.21 Just as there was, in Woodland, a basis for considering that the outsourcing

certain education supervisory functions which would traditionally have been carried

out by staff might not absolve the institution from retaining a duty of care in respect

of the manner in which those functions were carried out, there is a basis for

suggesting that, by analogy, the mere fact that certain services are no longer provided

by contract should not necessarily absolve a provider from the kind of obligations

which would likely have arisen under contract in the first place. Such an approach

would meet the “evolution by analogy” approach.

13.22 In that context, it seems to me to be important to note that there is no reason in

principle why the HSE might not have chosen to have its own laboratory in which

screening could take place. To the ordinary woman who availed of CervicalCheck,

the question of the precise ownership of the laboratory which would do the screening

would not, in my view, have appeared material. Rather, that woman would have

assumed that she was engaging in a HSE promoted programme which was under the

control of the HSE, and whatever needed to be done might be done by the HSE itself

or might be done by some other body of the choosing of the HSE. In the past, a body

providing a service such as CervicalCheck, but within the private sector, would 104

almost certainly have entered into a contract with any woman availing of that service

which would have made, either by express or by implied term, the service provider

liable for any negligence. That would be likely to be so even if the service provider

decided that it would sub-contract some of the work to others. It would have been

unlikely that a relevant contract would have been such that the obligations of the

service provider would have been confined to identifying an appropriate person to

carry out part of the task. It is far from the type of case where a general practitioner

may refer a patient either to a medical facility or an individual consultant precisely

because that general practitioner takes the view that a greater or different level of

expertise in a particular area is required to meet the needs of the patient concerned. In

such circumstances, a patient would not take it that the general practitioner was

assuming responsibility for the consultant or the hospital. A general practitioner

might, of course, be liable for referring a patient to a consultant who that doctor knew

or ought to have known did not have the expertise to deal with the matter. But that

would give rise to a different type of liability.

13.23 It does not seem to me that it is appropriate to characterise the role of the HSE

as being simply one of facilitating a relationship between patients participating in

CervicalCheck and laboratories. Rather, it is appropriate to characterise the HSE as

the party who has undertaken responsibility for the scheme, irrespective of whether

actual screening, or indeed other elements of the scheme, were to be performed by

others.

13.24 On that basis, it seems to me that the HSE were, prima facie, primarily liable.

It is also necessary to consider whether there is anything in the circumstances of the

case which would lead to the view that the HSE had divested itself of responsibility 105

for an element of the programme, being that element which involved the assessment

of slides by screeners. It seems to me that it was considerations of this type that led to

the conclusion of the U.K. Supreme Court in Armes that the relevant local authority in

the United Kingdom was not responsible for the actions of foster parents with whom

they had placed children, subject only to there being a possibility of liability if there

was negligence in the way in which the foster parents were selected or monitored.

Even in an era where all relationships were governed by contract, it would have been

most unlikely that an agency which held itself out as facilitating the placement of

children in foster care would have been taken to have entered into a contract to ensure

that, in all circumstances, the foster parents would not engage in any inappropriate

activity. However, the underlying placement service would have carried with it at

least an implied contractual obligation to ensure that the persons with whom a

relevant child was to be placed had been assessed for suitability and, most likely,

would be subject of monitoring. It would be to push the parameters of incremental

change or evolution by analogy much too far to suggest that non-delegable duties

could arise in cases where it was clear that the obligation being undertaken was

simply one of identifying appropriate third parties to carry out a relevant function.

13.25 Some of those involved with CervicalCheck may have been aware that slides

were sent to laboratories, whether in Ireland or in the United States, which were

independent of the HSE. Some may not. But knowledge does not seem to me to be

the essential ingredient. Rather, the question is as to whether the arrangement viewed

as a whole could be taken as one where the HSE was simply procuring that screening

would be carried out by others, so that the HSE was divesting itself of responsibility

for that aspect of the programme by entering into contracts with third parties. In my

view, there is no basis for sustaining such a suggestion. 106

13.26 In those circumstances, it seems to me that the HSE is primarily liable for any

negligence which might be found against the laboratories. I propose that the Court

should reach such a conclusion on a somewhat narrower basis than that adopted by

the trial judge because, for the reasons already referred to, I would not hold the HSE

to be vicariously liable for the acts of those laboratories. However, I would hold that

the HSE, in the manner in which it adopted and promoted CervicalCheck, acted in a

way which would lead an informed and reasonable person to assume that the HSE

was undertaking responsibility for ensuring that the programme would be conducted

in a non-negligent way and, further, I would hold that there was nothing in the

circumstances of the operation of the programme which would lead a reasonable

person to conclude that the HSE had absolved itself of any obligations in respect of

the screening part of the programme.

14. Damages

14.1 As noted earlier, the only defendant who appealed on the question of damages

was Medlab. I have already set out the various headings under which the trial judge

awarded damages against all of the defendants, including Medlab. As also already

noted, with the exception of a sum of €10,000 awarded against the HSE in respect of a

failure to inform the Morrisseys, and in particular Ms. Morrissey, about certain audit

results, all of the damages were awarded against each of the defendants.

14.2 Many of the headings of damages were not contested by Medlab. The appeal,

therefore, relates only to two items of damages awarded. In simple terms, it is first

argued that the award of general damages, which as will have been seen were

measured by the trial judge at €500,000, was said to have exceeded the established

maximum award permissible in respect of such damages, which was said to be 107

€450,000. Further, it is submitted that the sum awarded was not proportionate when

assessed against the level of damages commonly awarded in other cases.

14.3 Second, it was said that the trial judge was in error in concluding that he could,

in these proceedings, award damages to Mr. Morrissey in respect of the costs which

would be incurred in attempting to replace the non-financial contribution which Ms.

Morrissey, had she a normal life expectancy, would have been expected to make

towards the family. In that context, it is important to emphasise that the case made

was not concerned with the manner in which the trial judge proceeded to calculate the

sums found to be due under that heading, but rather whether there was a legal basis

for awarding damages under that heading at all. In the same context, it is also

important to note that the trial judge did indicate that if there was no legal basis for

awarding damages to Mr. Morrissey under that heading, he would instead have

awarded the same sum under the so-called “lost years” doctrine when calculating the

damages due to Ms. Morrissey.

14.4 While arguing that the trial judge was correct to adopt the approach which he

did, it is hardly surprisingly that counsel for the Morrisseys also suggested that, as a

fall-back position, the trial judge was also correct to indicate that the same amount of

damages could have been awarded under the “lost years” doctrine. It follows that the

real question for this Court is as to whether, as a matter of law, damages of that type

are available, either as damages recoverable by a person in the position of Mr.

Morrissey or under the “lost years” doctrine.

14.5 However, it is appropriate to turn first to the award of general damages.

14.6 The starting point has to be to set out a very brief account of the history of the

adoption by this Court of a limit on the amount of damages which can be awarded for 108

pain and suffering. However, before so doing, it is of some importance to be clear as

to the terminology used. On one view, it is said that whatever the limit may be, it can

properly be described as a “cap” on general damages so that it would, on that basis,

operate as an artificial limitation reducing the damages which might otherwise

properly be awarded to fully compensate an injured party. An alternative view is that

the limit, which might in this context not be properly described as a “cap” at all,

amounts to the current view of the appellate courts as to the damages which should be

awarded in cases of the most serious injuries. On that view, it might be said that all

other damages, ranging from the very minor to those which are relatively serious but

not of the most serious category, would require to be broadly proportionate to the

damages awarded in the most serious cases, having regard to the level of injury

suffered. It will be necessary to return to this question when the brief history of the

case law in this area has been reviewed.

14.7 A limit, or “cap”, on the amount of general damages which can be awarded for

pain and suffering was first introduced by this Court in Sinnott v. Quinnsworth [1984]

I.L.R.M. 523. In that case, O’Higgins C.J. described general damages as those which

are intended to represent fair and reasonable monetary compensation for the suffering

and inconvenience with which a plaintiff is afflicted by reason of their injuries and he

referred with approval to the following dicta of Griffin J. in Reddy v. Bates [1983]

I.R. 141 at p. 148, in relation to the calculation of such damages:-

"The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded... 109

In a case such as this, where damages are to be assessed under several headings, when the jury has added the various sums awarded and arrived at a total for damages, they should then consider this total sum (as should this Court on any appeal) for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this Court on appeal) should take into consideration in arriving at a conclusion in this behalf."

14.8 In outlining the rationale for imposing a cap on such damages, O’Higgins C.J.

described circumstances in which a sum awarded might be so high as to be construed

as a punishment imposed on the defendant for the infliction of the injury rather than a

reasonable attempt to compensate the injured and might, thus, impact on the operation

of public policy. He then continued on to identify the factors which a court may refer

to in its assessment of the level at which such a limit should be appropriately set:-

“In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this, regard must be had to the fact that every single penny of monetary loss or expense which the Plaintiff has been put to in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis.

These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to the past and the future and the cost of the special care which his dependence requires, and will require, for the rest of his life. What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary 110

living standards in the country, to the general level of incomes, and to the things upon which the Plaintiff might reasonably be expected to spend money.”

14.9 In that case, general damages were assessed by the jury at first instance at

£800,000, a sum which was described by O’Higgins C.J. as bearing “no relation to

ordinary living standards in the country”. By reference to “contemporary standards

and money values”, a limit on the award of general damages was set at £150,000, and

the sum awarded was substituted accordingly.

14.10 In light of the prevailing economic circumstances, this limit was subsequently

revised upwards, to £250,000, by Morris J. in the High Court in Kealy v. Minister for

Health [1999] 2 I.R. 456. The limit was also subject to analysis by O’Sullivan J. in

the High Court in McEneaney v. Monaghan County Council [2001] IEHC 114, where,

having regard to the expert evidence tendered as to inflation and living standards, it

was considered that the contemporaneous equivalent figure to the “cap” on general

damages imposed in Sinnott was approximately £300,000. In M.N. v. S.M.

(Damages) [2005] IESC 17, [2005] 4 I.R. 461, Denham J. held that she was satisfied

that, at that time, the equivalent figure to the £150,000 limit imposed in Sinnott was in

excess of €300,000.

14.11 A detailed review of the limit on general damages was undertaken in Yun v.

Motor Insurers Bureau of Ireland & anor [2009] IEHC 318, in which case Quirke J.

considered expert evidence regarding the change in economic conditions in Ireland

between 1984 (when the “cap” in Sinnott was imposed) and 2009, together with the

future social and economic outlook as of that time. Assessing the appropriate limit on

the basis of the significant increases in earning levels and the improvements in living

standards which took place in Ireland between 1984 and 2008, and allowing for 111

inflation, Quirke J. found that the equivalent value of the 1984 “cap” in 2008 was

€500,000. This figure was then subjected to a downward adjustment to reflect the

reduction in wealth and living standards which had commenced in or around 2008,

when Ireland had entered into a period of economic recession and which reduction

was expected, on the basis of the evidence put before the High Court, to continue for a

further period in excess of five years. Accordingly, Quirke J. reduced the value of the

limit on the award of general damages to €450,000, a figure which was referred to

with approval by this Court in Kearney v. McQuillan & North Eastern Health Board

(No 2) [2012] IESC 43 and more recently by the Court of Appeal in Nolan v. Wirenski

[2016] IECA 56, [2016] 1 I.R. 461.

14.12 This “cap” has been the subject of some recent discussion in the High Court

(see, for instance, Mullen v. Minister for Expenditure and Reform [2016] IEHC 295,

Woods v. Tyrell [2016] IEHC 355, [2016] 1 I.R. 349 and B.D. v The Minister for

Health and Children [2019] IEHC 173), in light of what have been said to be

considerable changes in the prevailing economic circumstances of the country in

recent times.

14.13 In the same context, it is also important to note that a judge-led initiative

suggested that a more equitable way of dealing with future care would be to provide

for periodic payments rather than a lump sum, which can, of course, give rise to a

windfall gain or to monies running out, depending on whether life expectancy has

been accurately assessed and whether the investment climate changes.

14.14 Regrettably it would appear that, for the reasons set out by Murphy J. in the

High Court in Hegarty & anor v. Health Service Executive [2019] IEHC 788, despite

the fact that it took a considerable period of time for the recommendations of the 112

Working Group on Medical Negligence and Periodic Payments to be enacted into

legislation, there are real reasons to fear that the periodic payment regime will not

work in practice.

14.15 Those points are of some relevance to the question which this Court has to

consider, for it must be accepted that any person who establishes a claim in

negligence for serious injuries will be fully compensated for any financial loss which

they suffer or any financial costs which they incur so that the award of general

damages is designed to deal only with pain and suffering.

14.16 However, while there might at least be something approaching a broad

consensus among the public generally as to the relative seriousness or otherwise of

certain injuries, the precise translation of any particular set of injuries into a sum of

compensation is necessarily somewhat subjective.

14.17 It is also potentially helpful to look at the position in other jurisdictions. In so

doing, I am mindful of the fact that it would require more detailed analysis of the

precise circumstances in which additional damages for financial loss or cost of case

might be awarded in such jurisdictions to enable a true comparison to be made.

However, and with that important caveat, it is of some relevance to note the highest

level of damages provided for in the guidelines maintained in certain other

jurisdictions.

14.18 In the Guidelines for the Assessment of General Damages in Personal Injury

Cases in Northern Ireland (5th Ed.), which were published in 2019 as a resource for

courts and practitioners in the assessment of damages in personal injury cases, the

highest level of damages specifically provided for is in respect of injuries resulting in

quadriplegia, which attract awards between £475,000 and £700,000. In the Judicial 113

College Guidelines for the Assessment of General Damages in Personal Injury Cases

(14th Ed.), published in 2017, which are for the benefit of the judiciary in England and

Wales, the highest awards of damages recommended are also in respect of injuries

resulting in quadriplegia, which will generally attract an award of between £284,610

to £354,260.

14.19 While it does not appear that there are formal judicial guidelines on damages

for injury in Germany, I am aware that awards in respect of severe cerebral palsy have

been made in and around the sum of €700,000. It should, however, be noted that in

the German system, the award may be adjusted to reflect the degree of culpability

found against the defendant.

14.20 Allowing for the caveat mentioned earlier concerning comparability, it

certainly does not seem that a limit, whether it be €450,000 or €500,000, in this

jurisdiction is out of line with the highest level of damages awarded in other

comparable systems. Indeed, there may be a basis for suggesting that, in relation to

very serious injuries, damages in Ireland are arguably lower than those awarded in at

least some comparable jurisdictions. However, given that no suggestion was made on

this appeal to the effect that the award of €500,000 for general damages was too low,

it is unnecessary to address those questions or to consider any issues of comparability

which might arise. It is sufficient to record that either of the limits being contended

for in this jurisdiction is well within, if not below, international norms.

14.21 The first issue which arises for this Court is, therefore, as to whether it can, as

Medlab argues, be said that the limit was €450,000 and that the trial judge was in

error in awarding €500,000. 114

14.22 First, it must be said that the limit of €450,000 derives from the judgment of

Quirke J. in Yun, as referred to above. However, it is also clear that the limit is not

fixed forever but rather can be reviewed from time to time by reference to prevailing

conditions. It is also clear that the limit of €450,000 was fixed at what was, on any

view, a time of particular economic depression in this country and was expressly

reduced by Quirke J. on that basis from what he would otherwise have regarded as an

appropriate limit of €500,000.

14.23 Medlab accepted that it is possible for the limit to be adjusted in the light of

prevailing circumstances but argued that, in order that a court might do so, there

should be evidence of a change in prevailing circumstances so as to allow for a proper

assessment to be made.

14.24 It is in that context that it seems to me to be important to note the difference

between the proper approach to financial damages which are capable of reasonably

precise assessment, on the one hand, and general damages for pain and suffering, on

the other. The course of action adopted in Russell (A Minor) v Health Service

Executive [2015] IECA 236, [2016] 3 I.R. 427 did involve detailed economic and

other evidence which enabled that court to conclude that it was appropriate to

calculate future pecuniary loss on the basis of an assumption that the real rate of

return on monies invested would be 1.5% (with an exception in respect of the

calculation of the cost of future care, where the real rate of return was set at 1% to

account for future wage inflation). But such an exercise was required precisely

because such damages are capable of at least being approached on the basis of a

calculation. As already noted, there is a significant subjective element to the

calibration of compensation for pure pain and suffering. In those circumstances, it 115

does not seem to me that a detailed evidence based approach to a change in

circumstances is necessary or required when identifying the limit on general damages

for pain and suffering. Rather, a court is entitled to take a broad approach based on its

own experience, just as some of the courts which have set and varied the limit have

done to date. In so saying, I do note the approach of O’Sullivan J. in McEneaney and

of Quirke J. in Yun was somewhat different. In those circumstances, and having

regard to the economic circumstances which prevailed at the time the limit of

€450,000 was fixed, it does not seem to me to be unreasonable to place the current

limit at €500,000.

14.25 I would also suggest that it is important that there be consistency in this area.

In those circumstances, it does not seem to me that a first instance judge should alter

the limit, even where that judge feels that circumstances have changed sufficiently to

justify a departure from a previous limit set by appellate courts. Rather, as applies in

a situation where a first instance judge is bound by precedent set by a higher court, it

should be open to a first instance judge, while awarding damages at the limit

previously fixed, to set out a reasoned basis for suggesting that a higher limit might be

appropriate in the prevailing circumstances and, thus, to leave it up to an appellate

court, most likely the Court of Appeal, to consider whether such an increased limit is

appropriate. It is, of course, open to a party who wishes to seek to persuade the courts

that a different limit should be applied, to lead whatever evidence they might consider

appropriate to that end. It would then be open to a trial judge, in giving reasons for

suggesting a change in the limit, to set out whatever evidence was considered

persuasive. Such an approach would pay appropriate respect to the experience of trial

judges but also ensure consistency by ensuring that any changes are made in only one

place, i.e. the Court of Appeal. 116

14.26 It is then necessary to turn to the second aspect of Medlab’s appeal against

general damages. Under that heading, Medlab argues that, whatever may have been

the appropriate limit, the damages in Ms. Morrissey’s case ought not have been set at

that limit. In that context, it was submitted on behalf of Medlab that the award of

general damages made by the trial judge was disproportionate, on the basis that Ms.

Morrissey’s injuries do not reach the end of the spectrum of personal injuries

occupied by injuries such as a catastrophic brain injury occurring at birth.

14.27 It is, of course, the case that it may seem somewhat invidious to attempt to

compare one type of very serious consequence with another. Some persons who

suffer catastrophic injury due to negligence are likely to lead a long life suffering

from very serious disability indeed, in circumstances where there are limits to the

extent to which those disabilities can be ameliorated by the provision of supports

which in turn can be financed by an award of damages. In some such cases, the

person concerned may have full cognitive ability and may be all too well aware of

their unfortunate circumstances. Others may suffer similar disability but with less

realisation. Still others, such as Ms. Morrissey, will, tragically, not have a full or

close to full life expectancy during which they will suffer from the consequences of

negligence, but on the other hand will have the additional pain of knowing about the

life which they will miss and the consequences for their loved ones. In my view,

there are different ways in which it is possible properly to characterise injuries

suffered as a result of negligent action as being at or near the top of the compensation

range so far as pain and suffering are concerned. I have no doubt that this is one such

case. 117

14.28 I should say that I have come to that view while considering that the proper

approach to the limit for damages for pain and suffering is the one which sees that

limit as the appropriate sum to award for the most serious damages. This is therefore

the sum by reference to which all less serious damages should be determined on a

proportionate basis, having regard to a comparison between the injuries suffered and

those which do, in fact, properly qualify for the maximum amount. The point which I

have sought to make, however, is that the type of injuries which do properly qualify

for the maximum amount may nonetheless come into different categories. While it is

not possible to conduct a precise mathematical exercise in deciding whether particular

injuries are, for example, half as serious as others, nonetheless it seems to me that

respect for the proper calibration of damages for pain and suffering requires that there

be an appropriate proportionality between what might be considered to be a generally

regarded view of the relative seriousness of the injuries concerned and the amount of

any award. But those very same considerations also recognise that it may be possible

to regard injuries of very different types as being broadly comparable. That

consideration applies equally to injuries of the most serious type and, thus, it is

appropriate to consider the injuries suffered by Ms. Morrissey to be of that most

serious type, even though they differ in character from other types of injuries which

can also properly be characterised as being of the most serious type.

14.29 Given that I have, for the reasons already set out, come to the conclusion that

the limit on general damages for pain and suffering as currently considered should be

fixed at €500,000, it seems to me that such a sum amounts to an appropriate means of

compensating Ms. Morrissey under that heading and I would not, therefore, interfere

with the trial judge’s award in that regard. 118

14.30 It is, therefore, necessary to turn to the second element of the appeal against

damages which relates to the financial cost to Mr. Morrissey of providing for those

“services” which Ms. Morrissey would, of course, willingly and happily have

provided for her family had her life not been so tragically cut short.

15. Damages to Compensate for Loss of Free Services

15.1 While it may be somewhat difficult to describe the issues which arise under

this heading in a way which does not appear disregarding of the real human issues

which lie behind this question, nonetheless there is an important question of law

which needs to be resolved. It will be necessary to turn shortly to the case law from

which the existing legal position may be gleaned and from which any possible

evolution of that position may find its staring point.

15.2 The essential difficulty stems from the long standing case law which suggests

that a third party cannot sue in damages for loss arising out of a death caused by the

wrongdoing of a defendant. There have been some exceptions identified and there

have been alterations in the law brought about by the legislature. However, on

Medlab’s case, the fundamental position remains as indicated in that historic case law,

subject only to those exceptions which have been recognised or where legislative

change has been brought about.

15.3 The heading of claim with which we are concerned refers to damages to which

the trial judge considered Mr. Morrissey was entitled, so as to compensate him for the

cost of having to provide services for himself and his family which would, in the

ordinary course, have been likely to have been supplied by Ms. Morrissey had she a

normal life expectancy. The Morrisseys suggest that such a claim can come either

within the existing case law or, potentially, a reasonable evolution of that 119

jurisprudence. It is said that the anomalies which would arise from a finding that Mr.

Morrissey was not entitled to such damages would justify, if it was required, such an

evolution.

15.4 It follows that it is necessary to look at the case law and certain relevant

legislation in a little detail. The historic position in tort was that no damages could be

recovered for financial loss arising out of a death. In Law of Torts (4th edn.),

McMahon & Binchy explain that the principle that death ended all actions in personal

torts, action personalis moritur cum persona, arose from a feature of early English

law, the felony merger doctrine, and meant that at common law the deceased person’s

estate had no right to sue in respect of his or her death. Further, the common law did

not recognise the death of a person as giving a claim for damages. In a case which

underpins much of the evolution of the law in this area, Baker v. Bolton (1808) 1

Camp 493, it was established that the dependants of a deceased person had no right to

sue in respect of his or her death. There, the plaintiff, following an accident in which

his wife was fatally injured, sought damages for the loss of her society and of her

assistance in conducting his business. Lord Ellenborough held that the plaintiff was

entitled to damages for the loss of his wife’s society and for the distress which he had

suffered only from the time of the accident until the time of her death a month later,

and stated the following:-

“In a civil Court, the death of a human being could not be complained of as an injury, and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.”

15.5 The rule in Baker v. Bolton was subsequently accepted in other common law

jurisdictions (see, for instance, the decisions of the Supreme Court of Canada in

Monaghan v. Horn (1884) 7 Can S.C.R. 409 and of the Supreme Court of the United 120

States in Insurance Co. v. Brame (1878) 95 U.S. 754) and has also been previously

referred to with apparent acceptance by this Court in Byrne v. Houlihan [1966] I.R.

274.

15.6 Exceptions to the historical position in tort law regarding recovery for

financial loss arising out of a death have been fashioned both by courts and

legislatures. In Rose v. Ford [1937] A.C. 826, the House of Lords held that the

plaintiff had a claim of damages for loss of expectation of life as a result of the

wrongful act of the defendant. The “lost years” doctrine has been subsequently

adopted by the courts in order to allow those plaintiffs who have a decreased life

expectancy as a result of the negligent acts of the defendant to recover for their lost

years in a personal injury action brought before their death. In Doherty v. Bowaters

Irish Wallboard Mills Ltd [1968] I.R. 277, it was Walsh J.’s view that the sum to be

considered in this regard was the plaintiff’s loss of earnings during the period by

which his or her life expectancy has been reduced, less the living costs which would

have been incurred during these years. The “lost years” doctrine has also been

accepted in the United Kingdom, in the decision of the House of Lords in Pickett v.

British Rail Engineering Limited [1980] A.C. 136, which appears to have similarly

confined the monies to be recovered under this heading to the plaintiff’s loss of

earnings during his or her “lost years”.

15.7 Further, the rule in Baker v. Bolton presented the obvious anomaly that a

defendant could be found liable for negligence causing injury to a potential plaintiff,

but that recovery was not allowed where the defendant’s negligent acts caused the

wrongful death of the same. Legislation was introduced in order to mitigate the harsh

effects of this rule on the spouse and dependants of the deceased, who were until that 121

point deprived of any cause of action for damages in respect of the individual’s death.

The Fatal Accidents Act 1846, commonly known as Lord Campbell’s Act, was

introduced to provide a statutory right to a cause of action to the dependants of the

deceased in respect of their dependency (see the Fatal Accidents Act 1976 for these

provisions as currently set out in English law) and such provisions were reflected in

statutes introduced across a number of common law jurisdictions. In Ireland, the law

on this matter has been consolidated in Part IV of the Civil Liability Act 1961.

Section 48(1) of that Act is particularly relevant for the purposes of these proceedings

and states as follows:-

“48.— (1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

15.8 In a decision of the Queen’s Bench Division of the High Court of England and

Wales, Thompson v. Arnold [2007] EWHC 1875 (QB), Langstaff J. helpfully sets out

the differences between a personal injuries claim taken by an individual who has

suffered a shortened life expectancy as a result of negligence and a claim under the

Fatal Accidents Act 1976 taken by the dependants of the deceased, at paras. 20-21:-

“[20] First, a claim for the life time damages of a claimant whose death is impending will, if made on a lump sum basis - the only basis available for claims at the time which this case concerns, which was before the introduction of periodical payment orders - be a claim for the loss of earnings up to the date of anticipated death, and thereafter may include a claim for the ‘lost years’.

Second, the claim can contain no element of care for any child, or husband, of the claimant after death, though the costs incurred in doing that which the claimant would have done to care for family members up until her death may 122

be included. Third, an award for pain, suffering and loss of amenity may be made, but no claim for bereavement damages is payable to members of the family. Fourth, the claim is made by the claimant herself. Accordingly, any damages are paid to the claimant. If she dies any sum unspent out of the money she received will therefore be dealt with as part of her estate, and in accordance with her will if she has made one, subject only to any claims under the Inheritance (Family Provision) legislation.

[21] By contrast, a claim under the Fatal Accidents Act is one for dependency, which may be conveniently divided into two parts - dependency upon earnings (‘earnings dependency’) and dependency upon those services provided by the deceased to which a money value can be attributed (‘services dependency’)

such as care of a spouse and children, insofar as either would have been provided for the benefit of the dependants, during the duration of their dependency. There is no lump sum claim, for pain, suffering and loss of amenity of the deceased - but instead the dependants may make a claim for bereavement which attracts a lump sum award, in a standard figure prescribed by legislation. Finally, a dependency claim is not one made by the claimant, but by her dependants and is therefore for their direct benefit, and not subject to the laws of intestacy, or to any will which she may have made.”

15.9 The creation of a remedy for the dependants of the deceased by statute has in

turn influenced the approach of courts in a number of common law jurisdictions

towards the underlying rule in Baker v. Bolton. In Admiralty Commissioners v. S.S.

Amerika [1917] A.C. 38, the House of Lords refused an invitation to disturb the rule.

Lord Sumner considered that the provisions of Lord Campbell’s Act, which remedied

the disadvantageous position of widows and children, should be read as effectively

providing statutory recognition to the rule at common law and held at p. 52 that the

legislation “provided a new cause of action and did not merely regulate or enlarge an

old one”. 123

15.10 Similarly, in Barclay v. Penberthy and Ors [2012] HCA 40, the High Court of

Australia declined to interfere with the rule in Baker v. Bolton at common law, where

the plaintiff firm had sought to make a claim for damages for the wrongful deaths of

two employees, in circumstances where such a remedy was not provided for by

legislation. In doing so, the High Court surveyed the legislative provisions of all

Australian jurisdictions regarding a cause of action on behalf of dependants, with the

majority judgment of the Court holding that “the pattern of Australian legislation is a

pointer towards the continued existence of the rule in Baker v. Bolton as a matter of

common law” (para. 26) and that any further contraction in the scope of the rule is a

matter for Australian legislatures.

15.11 As mentioned, in the United States, the rule in Baker v. Bolton was also

accepted into case law and, in a similar manner to that described above, U.S. state

legislatures subsequently intervened to provide a statutory remedy for the dependants

of the deceased to maintain a cause of action. Deviation from the rule in Baker v.

Bolton was considered permissible by the U.S. Supreme Court in circumstances

where no legislative remedy had been already provided to mitigate the effects of the

rule. In Moragne v. States Marine Lines (1970) 98 U.S. 375, the U.S. Supreme Court

overruled The Harrisburg (1886) 119 U.S. 199, precedent founded on the rule in

Baker v. Bolton, to the effect that maritime law did not afford a cause of action for

wrongful death, and held that the petitioner could maintain an action at maritime law

for the wrongful death of her husband caused by a violation of maritime duties. This

was in circumstances where a remedy for wrongful death in territorial waters did not

otherwise exist in federal maritime statute. Having reviewed the other remedies

provided at federal maritime law for dependants of maritime death victims in other

circumstances, the Court concluded that the lacuna at issue was not reflective of a 124

legislative intent to preclude the availability of a remedy for situations not covered

under the legislation and to remedy the anomalies which such a lacuna caused, the

Court created a uniform federal cause of action for maritime death.

15.12 The effects of the creation of a “true wrongful-death remedy” in Moragne

were recognised in the later decision of the U.S. Supreme Court, Sea-Land Services,

Inc. v. Gaudet (1974) 414 U.S. 573, where the Court allowed the bringing of a

maritime wrongful-death action by the spouse of a deceased longshoreman who had

previously recovered damages in his lifetime for his personal injuries. In that case,

Brennan J. held on behalf of the majority of the Court that in Moragne a true

wrongful death remedy had been created, which is founded on the death itself and is

independent of any action the deceased may have taken in respect of his own cause of

action. The dependant’s claim was held to involve a different cause of action to that

of the deceased and thus was not precluded by the principle of res judicata. While so

called “wrongful death statutes” provide that a dependant’s claim is barred if the

deceased has recovered for their injuries during their lifetime, the judge-made

wrongful death remedy at maritime law was held to operate with no such limitations

and it was said that any potential for double liability could be eliminated by the

application of principles of collateral estoppel.

15.13 The question which the U.S. Supreme Court faced in Sea-Land Services Inc v.

Gaudet raises a final issue in relation to this aspect of proceedings, which is as to

whether, under Part IV of the Civil Liability Act 1961, as amended, a claim could be

brought subsequent to the death of the injured party by his or her dependants, where a

claim has already been brought during the lifetime of the injured party. The position

under U.K. law appears to be that if a deceased person brings an action for damages 125

during his or her lifetime, and either proceeds to judgment or receives a settlement, a

further claim cannot be brought after his or her death under the Fatal Accidents Act

1976, on the basis that the recovery by a dependant is conditioned in statute on the

existence of an actionable cause in the deceased at the time of his or her death (see

Read v. Great Eastern Railway Company (1868) L.R. 3 Q.B. 555 and Nunan v.

Southern Railway Company (1924) 1 K.B. 223). This was also the assumption on

which the House of Lords proceeded in Pickett, although the issue itself did not arise

for determination in those proceedings. It is noteworthy that in that case it was stated

by Lord Wilberforce that this assumption, if correct, “provides a basis, in logic and

justice, for allowing the victim to recover for earnings lost during his lost years”.

15.14 In this jurisdiction, the issue has been subject to limited consideration. In

Mahon v. Burke [1991] 2 I.R. 495, the deceased had brought an action for negligence

against the defendant but settled this action before his death. The plaintiff, his widow,

then brought proceedings under s. 48 of the 1961 Act, in which she claimed damages

for funeral expenses, mental distress, and loss of consortium and for loss to the

dependants of the deceased arising from his death. The High Court (Lavan J.), on an

appeal from the Circuit Court, refused to award damages in respect of the fatal

injuries claim, holding that the underlying action of the deceased had already been

extinguished when the principal action had been settled by the deceased during his

lifetime and therefore there was no longer a cause of action vested in the deceased at

before his death.

15.15 In a more recent decision of the Court of Appeal, Hewitt v. Health Service

Executive [2016] IECA 194, [2016] 2 I.R. 649, the plaintiff sought to bring a claim

under s. 48(1) of the Civil Liability Act in respect of the death of his wife. The 126

respondent sought to have the claim dismissed as statute-barred, as the statutory

limitation period within which the deceased could have commenced proceedings had

expired prior to her death and, it was said, the cause of action vested in the deceased

had been extinguished by the time of her passing. Hogan J. held that, while the cause

of action under s. 48 is a separate cause of action from that which might have been

maintained by the deceased, the statutory claim of dependants is interdependent with

the original action which the deceased might have brought during his or her lifetime.

Having examined the statutory construction of s. 48(1), as set out above, he found in

favour of the respondents, stating the following at paras. 19 and 20:-

“19. In my view, however, it is the following words in s. 48(1) (“…such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof…”) which are critical and this is where I respectfully part company from the reasoning and conclusions of [the trial judge]. In other words, I take the view that s. 48(1) goes further than simply requiring that the action was in respect of a justiciable controversy measurable in damages which the deceased was capable of commencing during her lifetime: it also requires proof that the deceased would have succeeded in the action but for the death.

20. Accordingly, while s. 48 is certainly a separate cause of action, the Oireachtas has clearly linked recovery to the entitlement of the deceased – but for her death - to have sued in her own right. This is underscored by the use in the sub-section of a past conditional tense (“…such as would have entitled…”)

and the consequential requirements that the decision would have been entitled to maintain the action and recover damages in respect thereof.”

15.16 There is no doubt that there are complexities, both at the level of principle and

as a matter of practice, in attempting to produce an internally logical and coherent

regime to compensate those who may have suffered financial loss as a result of a

death or reduced life expectancy occurring in actionable circumstances. This will be 127

so in circumstances where an action is brought after the death in question by third

parties who claim that they have suffered financial loss or where, as here, it is

unfortunately the case that a person will suffer from a significantly decreased life

expectancy with financial consequences both for themselves and for those close to

them.

15.17 As noted earlier, the historic position was that no damages could be recovered

for financial loss arising out of a death. As has been pointed out in judgments from

many jurisdictions (some of which are cited earlier), whatever may be the merits or

demerits of that historic case law, the problem with which we are now faced is not

only that the case law in question has represented the established position in most

common law jurisdictions for a number of centuries, but that we are also faced with

the fact that the law as thus defined has clearly formed the basis of legislative

intervention in most of those jurisdictions. The provisions of the Civil Liability Act

1961, already mentioned, which permit a claim to be brought by the dependants of

someone who dies as a result of the wrongdoing of a defendant are a case in point.

15.18 Whatever way one looks at the situation, there are potential anomalies. A

person bringing an action while they are alive can, under the established case law,

recover for the so-called “lost years”. On that basis, income which they might have

hoped to have earned during a normal life expectancy but are now not likely to earn

because of that life expectancy being reduced can be recovered. The person

concerned can, of course, provided that they have sufficient mental capacity, do what

they like with the money thus recovered. However, in many cases, not least those

where there has been a very significant reduction in life expectancy, it may well be

that the benefit of at least a portion of the damages recovered for those lost years will 128

go to the dependants of the person who will, tragically, die much earlier than would

otherwise have been the case. It may be that, in such circumstances, those dependants

will benefit financially.

15.19 On the other hand, a claim brought after death by the dependants of a deceased

will, insofar as financial loss is concerned, be confined to that proportion of the future

income of the deceased which would have been lost by reason of their death but

which would, as a matter of likelihood, have been spent on the dependants in

question. It certainly does not necessarily follow that the ultimate benefit to the

dependants will be the same in either case.

15.20 Whether, in practice, the total amounts from which the dependants may benefit

might be better under one or other model is difficult to estimate and may well depend

on the particular circumstances of each individual case. On one view, which is in

substance the argument put forward on behalf of Medlab, essentially, as the law

currently stands, that is a choice which parties must address on the basis of their best

estimate of the circumstances prevailing in their own case. It is, of course, a choice

which only arises where a person remains alive but has a significantly reduced life

expectancy for in any case in which the person has already died as a result of an

actionable wrong, the only recourse is to a claim under the Civil Liability Act.

15.21 On the other hand, there is the question as to whether it would ever be

permissible for the dependants of a deceased to bring an action under the Civil

Liability Act arising out of the death of the deceased in circumstances where the

deceased him or herself had, while still alive, successfully prosecuted a case arising

out of the same wrongdoing. The case law of the High Court and the Court of Appeal

in that regard has already been briefly referred to. The issue awaits a final 129

determination. If it is not possible for the dependants to bring such an action, then the

difficulty is that the deceased would either have to forego bringing an action during

their life (which might be unfair to them, for they might well have benefited during

their remaining but reduced lifespan from whatever damages might have been

awarded) or the dependants might potentially benefit unless there were to be a rule, as

counsel for the Morrisseys suggested might exist, which prevented double recovery.

15.22 However, how such a rule would operate in practice might not be altogether

fully clear. For example, a person may, at different times in their life, choose to

exercise a decision to engage in paid employment and use some of that money to pay

others to do work in the home or may do some of that work themselves. I use the

term “work in the home” very loosely to encompass the whole range of things which

may be provided free for the other occupiers of a household or others who may be

dependent. To the extent that a person might have engaged in paid employment then

damages might be recovered under the “lost years” doctrine. However, to the extent

that they might have provided free benefits to their dependants and others from the

same household, damages might only be capable of being recovered in an action taken

by those dependants after the relevant death had occurred. But estimating which

course of action would have been taken and, potentially, in what proportions, could

present a very difficult equation.

15.23 As I see it, the underlying problem is that the entire basis of both the case law

and legislative intervention in the area of damages arising out of death or reduction in

life expectancy has operated for many centuries from a starting point that no such

damages are recoverable, with very limited exceptions identified by the courts or by

intervention by the legislature. While there may be particular circumstances where 130

the courts can identify a straightforward evolution of the existing case law so as to

accommodate a particular head of damage which may logically fit in with the overall

scheme, it seems to me that there is an insurmountable danger in attempting to rewrite

the underlying basis of the law of damages in this area. There are already anomalies

enough without creating more.

15.24 To that must be added the fact that it is clear that statutes have been passed by

the Oireachtas on an apparent assumption that the default position in law is that

damages cannot be recovered for death save for those limited exceptions to which I

have referred. Indeed, it seems to me that there is much merit in the argument put

forward on behalf of Medlab, which drew attention to the fact that the only areas

where the American courts would appear to have felt free to develop common law

principles in this area was where there had not been legislative intervention.

15.25 In those circumstances, it seems to me that any further significant evolution in

this area is one that can only be achieved by comprehensive legislation rather than by

an evolution in the case law. I appreciate that the current situation does contain some

anomalies. But the risk of creating further anomalies by a piecemeal approach on the

part of the courts involving a radical alteration in the underlying common law

assumption in this area is one which, in my view, should be avoided.

15.26 It follows, it seems to me, that the trial judge was in error in awarding Mr.

Morrissey damages in respect of the costs of providing for services which Ms.

Morrissey might have been expected to provide free for the family in the event that

she had lived to a normal life expectancy. It seems to me that such damages can,

under the law as it currently stands, only be recovered in an action brought by

dependants under the Civil Liability Act. If there are to be further changes in this 131

complex area, it seems to me that they will be much better carried out through

considered legislative intervention.

15.27 While it is true that one of the strengths of the common law is its ability to

evolve to reflect changed circumstances, it is equally true that there are dangers in

over-radical intervention, particularly where the consequences are by no means clear

and the risks of creation of further anomalies are significant. Furthermore, where, as

here, the legislature has already intervened to define the parameters of certain

categories of loss which can be recovered, it seems to me to be appropriate to view

this as an area where the legislature has adopted the common law position and sought

to amend it. In such circumstances, the courts should lean against over-radical

reinterpretation of the common law which might be said to be potentially inconsistent

with the legislation.

15.28 In all those circumstances, it seems to me that if a less anomalous situation is

to be arrived at in this area it will require legislation. I would, therefore, allow

Medlab’s appeal against that head of damage awarded to Mr. Morrissey in respect of

the cost of future services.

16. Conclusions

16.1 As noted at the beginning of this judgment, the background to this case

involves a particular human tragedy. However, this Court has to deal with the legal

issues which arise and, as agreed with by counsel at the oral hearing, there were

essentially five sets of legal issues with which the Court was confronted. For the

reasons analysed earlier in this judgment, I would propose the following conclusions

in respect of each of those issues. 132

16.2 The first question concerns the proper standard of approach to be adopted by a

screener involved in a scheme such as CervicalCheck. I have set out the reasons why

I consider that the Dunne test remains the basis for identifying the legal standard of

care by reference to which a claim in clinical negligence is to be assessed. To avoid

any lack of clarity, I have made a number of observations in respect of that test. In

substance, the legal standard of care applied in any clinical negligence claims, or

indeed other professional negligence claims, requires the court to assess whether no

reasonable professional of the type concerned could have carried out their task in the

manner which occurred in the case in question. That overall test requires a court to

determine what standard a reasonable professional would apply. For the reasons set

out earlier in this judgment, I have used the phrase “standard of approach” to describe

the standard that a reasonable screener would be expected to apply in order to avoid

any confusion with the term “standard of care”, because that latter term has a precise

legal meaning. As noted earlier, I consider that the use of the term “absolute

confidence” may have created more confusion than clarity. However, it is clear that

all of the relevant witnesses agreed that a screener should not give a clear result in

respect of a slide unless they had no doubt but that the sample was adequate and did

not contain any suspicious material. That standard is not one imposed by the court

but rather one which stems from the profession itself. The determination of that

standard requires either agreement between the parties or, in the event of

disagreement, an assessment by the court of expert evidence.

16.3 I have also set out the reasons why I consider that it is clear that the trial judge

applied the appropriate standard in reaching his conclusions. 133

16.4 The second and third set of issues concerned the contention made by both

Quest and by Medlab which suggested that the trial judge had failed to engage

properly with certain aspects of the case which they made on the facts and had,

thereby, delivered an insufficiently reasoned judgment. I make some observations on

the legal principles to be applied in assessing such a contention. I also note that, for

laudable and understandable reasons, a somewhat truncated procedure was adopted in

the High Court in this case.

16.5 As set out in the judgment, I conclude that, while there were a number of areas

where it would have been preferable for the trial judge to have given more detailed

reasons, the judgment did not, in its reasoning, fall below the irreducible minimum of

reasoning, even where the Court has made all due allowance for the adoption of a

truncated procedure. I also suggest that it might well be that, in some respects, the

judgment might have fallen short of the standard required to survive a successful

appeal had these proceedings followed their normal course. However, I conclude that

the grounds of appeal put forward under this heading by, respectively, Quest and

Medlab must fail.

16.6 The fourth set of issues arise in respect of the appeal brought by the HSE in

relation to the finding of negligence made against it. The High Court had found the

HSE liable both on the basis of being vicariously responsible for the actions of the

laboratories and also on the basis of having a non-delegable duty to the patients who

availed of CervicalCheck such that the HSE must be taken to have accepted

responsibility for the non-negligent delivery of the service.

16.7 For the reasons set out earlier in this judgment, I have concluded that the High

Court judge was incorrect to hold that the HSE were vicariously liable for the 134

negligent acts of the laboratories. However, having analysed the law in the evolving

area of non-delegable duty, I express the opinion that the HSE did, in all the

circumstances of this case, have such a duty in respect of patients availing of

CervicalCheck. On that more limited basis than the one adopted by the High Court, I

would dismiss that aspect of the HSE’s appeal which suggested that it should not be

fixed with any liability in respect of negligence established against the laboratories.

16.8 Fifth, and finally, there were two sets of issues arising under the heading of

damages. An appeal on the award of damages was brought solely by Medlab with no

similar appeal begin brought either by Quest or by the HSE.

16.9 The first area of appeal concerned the award of €500,000 for general damages

to Ms. Morrissey. Having analysed the relevant case law, I express the view that

€500,000 now represents the appropriate maximum damages to be awarded for pain

and suffering in personal injury cases. I also express the view that Ms. Morrissey is

entitled to that maximum sum. It follows that, in my view, the appeal brought by

Medlab in respect of the award of €500,000 for pain and suffering should be

dismissed.

16.10 The second issue raised by Medlab in respect of damages concerned the award

of damages to Mr. Morrissey in respect of losses attributable to having to replace

services which would have been provided to the family by Ms. Morrissey had it not

tragically transpired that she will have a significantly reduced life expectancy. I have

analysed the law in this area in some detail and set out the reasons why it may, in

certain respects, be potentially anomalous. However, the underlying basis for this law

goes back many centuries, has been followed in most common law countries and has

been the subject of intervention by the legislatures in such countries in circumstances 135

where it can only be inferred that the legislature accepted that the law which it was

seeking to amend was as set out in that established common law jurisprudence. In

those circumstances, I conclude that any change in the law in this area is a matter

which must be the subject of legislation. It in turn seems to me to follow that the

High Court was incorrect in awarding the sum in question to Mr. Morrissey. In that

respect, I would allow Medlab’s appeal in that regard. It is suggested that if the

parties are not in a position to agree on the amount of such damages in respect of

which the appeal is to be allowed, submissions are to be made to the Court on the

matter within three weeks of today’s date.

16.11 In summary, therefore, I would dismiss all of the appeals save for the appeal

of Medlab in relation to the award of damages in respect of loss of services. I would

invite the parties to file, electronically, in court, within three weeks of today’s date,

submissions as to the precise orders which the Court should make, including issues

concerning the costs of these proceedings. In the event that there is any difference of

opinion between the parties as to the precise orders which should be made, I would

propose that the Court consider, in the current difficult circumstances, how best to

arrange for the proper debate of those issues in a manner which is consistent with the

highest levels of safety while at the same time complying with the requirements of

justice.