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Standard of ‘absolute certainty’ found to be appropriate in screening for cervical cancer

By: Mark Tottenham BL

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Supreme Court, on appeal from the High Court in a claim by a woman suffering from terminal cervical cancer, where two screening tests in 2009 and 2012 had failed to disclose the illness from which she suffered: (a) affirms findings in relation to the 'standard of approach' by screeners, on the grounds that the relevant expert witnesses had attested to the standard of 'absolute certainty' found by the trial judge to be applicable; (b) determines that the trial judge had engaged properly with the evidence before him, although a truncated approach had been adopted in the circumstances of the case such that he did not give as detailed reasons as might have been preferable; (c) sets aside the findings of the trial judge that the Health Service Executive (HSE) was vicariously liable for negligence by independent screening contractors; but (d) determines that the HSE had a non-delegable primary liability to the persons availing of the screening services; (e) determines that an award of €500,000 in general damages was appropriate for the case in question, notwithstanding that the 'cap' had previously been fixed at €450,000 and that it was not ordinarily appropriate for a trial judge to award damages in excess of a cap fixed by an appeal court; and (f) sets aside an award of compensation to the plaintiff's family in respect of the 'free' services expected to be lost by them by reason of her reduced life expectancy.

Clarke CJ: Plaintiff terminally ill from cancer - screened as part of  National Cervical Screening Programme (“CervicalCheck”) in 2009 and 2012 - clear result - 2014 further testing - cervical cancer - audit showed that original results in 2009 and 2012 were incorrect - finding of error in 2015 - result not released to plaintiff until 2018 after inquiries - role of Health Service Executive - contracting out of testing to other defendants - €2.152 million damages in High Court - appeal - other cases pending - delay between test and diagnosis - sample may not contain suspicious material - screening processes can give rise to different results by competent screeners - proper approach to negligence - test of ‘absolute confidence’ - finding of negligence in respect of one defendant - reading of slides - assessment of smear - vicarious liability - damages - contracting out of screening - audits - timescale of proceedings - standard of care in screening services - blind review - HSE’s organisational role in CervicalCheck programme - responsibility for all aspects of the programme - concurrent wrongdoers - cap on general damages - principle of ‘lost years’ - loss of consortium - ‘standard of care’ - ‘standard of approach’ - way in which evidence was given at trial - procedure for screener if in any doubt about slide - whether different standard applied in United Kingdom - whether tolerance for any doubt - cross-examination of experts - whether use of term 'absolute confidence' created confusion - whether competent screener could have had any doubt about slide - role of expert evidence - whether trial judge had failed to engage with defence case - approach to be taken by appellate court - findings of fact - whether trial judge gave sufficient reasons for his decision - whether competent screener could have reported 2009 slide as negative - blind review - dismissal by trial judge of findings concerning 2012 slide - engagement by judge with evidence - speed of proceedings - liability of HSE for negligence of other parties - whether HSE had non-delegable duty to take reasonable care - criteria to establish non-delegable duty of care - vicarious liability - primary liability - damages - general damages - 'cap' on general damages - whether trial judge was entitled to award €500K - review on 'cap' - whether 'cap' could be reviewed by a first instance judge - whether upper limit appropriate for a person who had not suffered catastrophic injuries - damages to compensate for loss of free services - 'wrongful death' remedy.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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