Negligence – Personal injuries – Damages – Appellant seeking damages for personal injuries allegedly sustained as a result of the negligence of the respondent – Whether trial judge did not fully engage with the evidence adduced on the appellant’s behalf in support of her claim  

Facts: The plaintiff/appellant, Ms Everard, appealed to the Court of Appeal against the judgment and order of the High Court (White J) dated respectively the 24th September, 2015, and the 20th October, 2015, whereby he dismissed the plaintiff’s claim for damages for personal injuries allegedly sustained as a result of the negligence of the defendant/respondent, the Health Service Executive, in and about the management of her birth at Our Lady of Lourdes Hospital, Drogheda on the 23rd January, 2011. The appellant referred to the final section of the judgment of the High Court judge and submitted that it was to be inferred therefrom that he considered it necessary for the appellant to prove her case on the criminal standard of proof, i.e. beyond reasonable doubt, rather than on the balance of probabilities. She relied on the fact that the he did not weigh the probabilities in relation to the allegations of negligence but rather went in search of evidence that might, in the context of criminal proceedings, defeat the prosecution’s claim; he failed to make any finding, as a matter of probability, as to whether shoulder dystocia was present or whether excessive traction had been used. 
Held by Irvine J that the trial judge did not fully engage with the evidence adduced on the appellant’s behalf in support of her claim that she was injured as a result of negligent management of a shoulder dystocia emergency at the time of her birth and in particular failed to make an express finding as to whether or not shoulder dystocia was present or excessive traction deployed, thus somewhat falling short of what might have been expected of him under Doyle v Banville [2012] IESC 25. Irvine J held that in circumstances where it was to be inferred from the final paragraph of the trial judge’s judgment, where he found that the injury was caused as the appellant descended through the birth canal with her left arm and shoulder in the posterior position, a finding inconsistent with injury caused by excessive traction, that causation finding was one which was not supported by the evidence; this was so because the trial judge at para 133 of his judgment rejected the results of the abdominal palpation test carried out by midwife Dunne as sufficient evidence to convince him on the balance of probabilities that the left arm and shoulder of the plaintiff were posterior at delivery. That being so and in circumstances where there was no clinical note made as to which shoulder was first delivered or other evidence available to support that finding, Irvine J held that the dismissal of the plaintiff’s claim based upon this causation finding could not be upheld. Irvine J held that the order of the High Court must be set aside and a retrial ordered. Appeal allowed. 
Everard, Sophie (a minor) v Health Service Executive 
7/4/2017 No. 2015/594 [2017] IECA 114