1. This is an appeal from the judgment and order of the High Court (Morris J.) of the 30th May, 1991, holding in favour of the plaintiff in an action for damages for personal injuries brought on her behalf for the alleged negligence of the defendant, its servants or agents in regard to matters surrounding a surgical procedure carried out at Limerick Regional Hospital on or about the 16th March, 1982. The judge assessed damages in the sum of £319,392.93. The defendant appeals against the finding of negligence and while, originally, the plaintiff sought to vary the judgment in regard to damages, in the course of the hearing of the appeal, that aspect of the case was not proceeded with further.

2. The plaintiff, Beatrice Lindsay, then aged eight years, was admitted to Limerick Regional Hospital on the 15th March, 1982, with stomach pains. She was diagnosed as having an acute appendicitis or, as an alternative, mesenteric adonitis. This latter condition is an inflammation of the lymph glands in the mesentery. The symptoms of this condition mimic the symptoms of an inflamed appendix and, indeed, that is what happened in this case because after the appendix was removed and was subsequently subjected to pathological examination it was found not to have been the cause of the plaintiff’s original troubles. No point is made on this as it is accepted that it was reasonable to operate to remove the appendix in the circumstances of this case.

3. After the decision to operate was made, Dr. James McDermott, who was a consultant anaesthetist at the hospital since 1956, was sent for and he arrived from his home. In the interim, the nursing staff had prepared the patient for the operation. The anaesthetic was administered by Dr. McDermott with Dr. Pai, who was attached to the hospital as a senior officer in anaesthetics, also in attendance. The operation was carried out by Dr. Michael O’Riordan, then a senior house officer at the hospital under the supervision of Mr. Nur, a fellow of the Royal College of Surgeons and surgical registrar at the hospital.

4. The evidence of the anaesthetists was to the effect that the relevant anaesthetic procedures were put in place and that nothing untoward happened in the course of the operation. The plaintiff was removed to the recovery room when she was described by Dr. McDermott as being absolutely normal. Although she appeared to be commencing to regain consciousness she did not do so and then she developed seizures which proved extremely difficult to control. She eventually became comatose and unresponsive. This was at about 2 a.m. on the morning of the 16th March, the anaesthetic having been administered at about 12.35 a.m. Later, on neurological examination, a C.T. scan showed generalised brain oedema. E.E.G. showed bilateral diffuse symmetrical slow activity, in keeping with a diffuse form of neuronal dysfunction. The plaintiff has irreversible brain damage, is in a coma and will not come out of it. At the date of the trial she had a life expectancy of about 15 years.

5. No complaint is made about the actual surgical operation. The essential case made on behalf of the plaintiff is that she went to the hospital with a very common complaint, appearing to be an acute appendicitis that she was then a normal, healthy girl; that she was put through a routine anaesthetic reducing her to a state of unconsciousness and that her situation is that she has never been brought back to a state of consciousness. It is, therefore, submitted that this prima facie shows that something irregular took place in the course of the administration of the anaesthetic and that it is, in those circumstances, for the defendants to disprove negligence: res ipsa loquitur.

6. The defendant says that unless one can point to a negligent act, as opposed to an unusual occurrence, then res ipsa loquitur has no place. It says, in any event, that it proved that everything that could be done was done in this case; that nothing has been shown to have been done negligently but, on the contrary, that while this was regarded as a routine procedure the plaintiff was attended by two anaesthetists during the course of a significant but routine surgical procedure and that nothing untoward took place; that, in those circumstances, to repose liability on it would be to hold doctors responsible for pure accidents which can occur and for which no full explanation is forthcoming; that neither doctors nor hospitals can be guarantors of the success of every procedure that is undertaken; and that provided they exercise reasonable care, carrying out procedures in accordance with what is established practice, to repose liability on them in such circumstances would be to produce a very unjust result.

7. In my judgment, the submission that res ipsa loquitur does not apply in the circumstances of this case should be rejected. It is true that a precise circumstance of negligence cannot be pointed to - such as in the classical cases of bags of sugar falling on a passing pedestrian (Scott v. London and St. Katherine Docks Co. (1865) 3 H. & C. 596) or a motor car driven onto a footpath (Murray v. Gilmore, Unreported, Supreme Court, 20th December, 1973) - but it seems to me that if a person goes in for a routine medical procedure, is subject to an anaesthetic without any special features, and there is a failure to return the patient to consciousness, to say that that does not call for an explanation from defendants would be in defiance of reason and justice. Equally, however, it seems to me that in this case the most that the defendants should be required to do is to show that they exercised all reasonable care and that they were not negligent, and that they should not be required to take the further step of proving, on a balance of probabilities, what did cause the plaintiff’s brain damage. The distinction between a negligent act and causation requires to be emphasised.

8. I believe that in this case the plaintiff’s advisers would have been perfectly entitled to set out the broad facts of the case and, without more, require the defendants to adduce evidence as to what took place in the course of the operation. The plaintiff’s advisers approached the case in a different way, as of course they were entitled to do, because they were in a position to call an expert witness, Professor Pádraig Keane, Professor of Anaesthetics at University College, Galway, who gave evidence that the likely cause of the plaintiff’s condition was a hypoxic insult which she sustained in the course of the administration of the anaesthetic. Hypoxia is a withdrawal or reduction of oxygen to a dangerous degree. That such happened was refuted by the two anaesthetists on duty. It was not in controversy that if there was a hypoxic occurrence an anaesthetist should have seen it. It was put as follows at the start of the cross-examination of Dr. McDermott (at volume 6 of the transcript):-

9. In addition, the defence expert witnesses said that the symptoms were not present that one would expect if there had been an hypoxic occurrence. The learned trial judge accepted the expert testimony proffered on behalf of the defendants. He said, in the course of his judgment at p. 166 above:-

10. The learned trial judge, having held that the effect of the application of the maxim res ipsa loquitur was to throw the burden of proof onto the defendant to prove, on the balance of probabilities, what caused the plaintiff’s brain damage, and it having failed to do so – having propounded possibilities only of what caused her condition – that that would amount to the court adopting a theory based on pure speculation; that was not sufficient for the defendant to meet the case and, therefore, he held that negligence was to be inferred. On that basis, he found for the plaintiff.

11. As I have set out, the trial judge rejected hypoxia as a cause of the plaintiff’s condition. Mr. Sutton S.C. for the plaintiff has submitted, however, that the trial judge did so only in regard to the assertion made on behalf of the plaintiff that hypoxia was the cause of the plaintiff’s brain damage; that, however, it remains as something that could still be in the case and something that the defendant has not disproved as it is required to do once the maxim res ipsa loquitur comes into play. I would reject this submission as being at variance with the judge’s findings. He had before him the clear evidence of all the defence witnesses, especially the two anaesthetists, that no hypoxic occurrence took place in the course of the anaesthetic procedures and he also accepted the evidence of the expert defence witnesses in this regard. The only conclusion that can be drawn is that hypoxia is out of the case. While the plaintiff’s advisers did not have to assert any particular cause for the plaintiff’s condition, it is the case, I believe, that hypoxia as a possible cause would have had to be disproved in any event. So nothing turns on the fact that the plaintiff’s advisers propounded it as a cause in the first instance.

12. With hypoxia out of the case, it follows inexorably that the anaesthetists must be acquitted of any blame because the only thing that could have resulted if anything had been remiss with the way the anaesthetic was administered was hypoxia: nothing else.

13. I believe that the trial judge was, however, correct in regarding this as a res ipsa loquitur case. Disparity between the situation of the respective parties is crucial in this regard. As Ó Dálaigh C.J. said in Dowd v. Kerry County Council [1970] I.R. 27 at p.41 of the report:-

14. In the decision of the British Columbia Supreme Court (Andrews J.) Girard v. Royal Columbian Hospital et al (1976) 66 D.L.R. (3d) 676 which was cited to the learned High Court Judge as well as to us, Andrews J. agreed with the description of res ipsa loquitur contained in Fleming, The Law of Torts (See now 7th edition at p. 291):-

15. I, too, would adopt this as an apt description of the scope of the maxim.

16. Andrews J. went on to say (at p. 691):-

17. I would adopt this reasoning to the circumstances of the present case.

18. I believe at the end of all the evidence in this case the situation was that the plaintiff had clearly established a prima facie case on two different bases. One was the evidence of Professor Keane that postulated the probability that there had been an hypoxic occurrence. This, as I have said, was rejected by the trial judge. Further, for the reasons I have suggested as regards how unique and unusual this occurrence was, and because of the respective positions of the litigants, clearly an answer was required from the defendant. That answer could be provided in two ways. It could have proved, on the balance of probabilities, that the plaintiff met her injuries in a particular manner that caused her condition but which was not connected with the administration of the anaesthetic. This it failed to do. The furthest the defendant got was to suggest as possibilities other means by which the plaintiff sustained her injuries. I believe this evidence is not, however, to be regarded as totally inadmissible. It was legitimate, I believe, for the defendant to adduce evidence of possibilities, remote though they might be, as an explanation; in contradistinction to saying that it could not offer any explanation of any description whatsoever. It went to provide some corroboration, as well, that there was no negligence on its part in the administration of the anaesthetic. The other course was for the defendant to establish that from beginning to end of this anaesthetic procedure there was no negligence on its part. This it did decisively and, in those circumstances, it appears to me that it rebutted the burden of proof that rested on it to displace the maxim res ipsa loquitur and so the case returned to the plaintiff’s bailiwick to prove negligence.

19. I believe that it is necessary to ensure that the rule embodied in the maxim does not put a burden on defendants which is so onerous as to produce an unjust result. Each case must, of course, be dealt with in accordance with its own particular facts but, as I have said, I believe that in the circumstances here the defendant has met the prima facie case made against it as fully as could be expected. It would be an unjustifiable extension of the law to say that in the absence of an explanation that could be proved, on the balance of probabilities, negligence on the part of the defendant must be inferred. It has often been said that medical science is not an exact one and it is safe to prophesy that medical science and its technology will advance past frontiers which are not within anyone’s contemplation at this time and so matters at present not amenable to explanation will be capable of resolution.

20. Accordingly, I would reverse the order of the High Court.