Autism and Paediatric Traumatic Brain Injury

Two cases have now come before the Courts in Ireland where the family of a child with Autism have sued the National Maternity Hospital over the circumstances surrounding the child’s birth.


  • Updated Research


Over the last 10 years or so scientific evidence has developed and shown that perinatal and intranatal trauma are significant risk factors for developing autism. The first advancement in this regard was a Californian article in 2017 which examined the inter-relationship between birth trauma and the risk of developing autism.


Researchers discovered that nearly 40%, of the approximately 6,000 children reviewed, suffered complications either shortly before or during birth. The complications researchers found to be most closely related to autism included birth asphyxia and pre-eclampsia. This research has in turn led to more clinical negligence case investigations.


  • Legal cases taken against National Maternity Hospital


The first test case in this jurisdiction was that of Finn Phillips v NMH. In June 2019 the case was settled by mediation where Mr. Justice Kevin Cross was happy to endorse a settlement of €7.25 million for a child that developed autism following a traumatic birth.


The infant was delivered by ventouse delivery and it was alleged that he was unnecessarily exposed to both asphyxia and trauma from the vacuum extraction. His legal team argued that this led to potential long term consequences. They claimed the injuries suffered included developmental delay and autism. It was claimed that there was a failure to manage the mother’s labour appropriately and an alleged failure to intervene in time.


Whilst this case is not a strict precedent as each case will turn on its own facts it is a landmark case in that it related to autism arising from a birth injury and was settled for a very significant sum.


Recently a second case against the National Maternity Hospital has been settled  for €10 million, following an eight year battle. Ashton Shiels Flynn, through his mother Michelle, sued the NMH over the circumstances of his birth. The court heard it was only the second case to come before the courts seeking to establish an alleged link between autism and alleged hypoxic event during delivery.


  • Causation and Negligence


As scientific research progresses causation factors will become definitive and unfortunately it seems probable that there will be a lot more of these type of cases as families investigate causation of autism and developmental delay.


Clinical negligence experts in the UK have indicated that the main areas of alleged negligence, and this is by no means an exhaustive list and will continue to be expanded upon, linking autism to birth would be:-


    • Pre-eclampsia;
    • Birth management and a failure to intervene in delivery;
    • Instrumentation delivery;
    • Delay in undertaking/undergoing a c-section;


  • Next Steps for Families


It is important for families who have concerns regarding their child’s birth to take up the relevant medical records and seek expert advice from a team of legal and medical experts to identify any failures or negligence during delivery leading to increased risk of autism.


If you would like to arrange a consultation or would like further information please get in touch with Deirdre Rafferty of our office via phone or email


Personal Injury Awards: The Tide is Turning?

It is over 6 months since the Personal Injuries Guidelines (“the Guidelines”) (as discussed in previous articles here: Judicial Council Guidelines & Judicial Guidelines)were commenced on 24th April last. The Guidelines were commenced in an effort to reduce and standardise awards in personal injuries matters, and also as a result of persistent pressure from the insurance sector, mainly policyholders. The question is whether the Guidelines have had the impact they are designed to have.

It is arguably too soon to analyse awards handed down by the Judiciary, as it takes anywhere from 12 to 24 months for a claim to filter through the Court process. Equally, we are faced with the reality that most actions taken are settled, with no data available in relation to the majority of these settlements. Therefore, analysis of the awards made by the Personal Injuries Assessment Board (“PIAB”) is key to examining whether the Guidelines have had any effect.

PIAB’s annual report, published on 27th July last (available here, is the first steppingstone in the analysis of awards under the new regime. In the three-month period following the implementation of the Guidelines, a 50% fall in the average value of awards was seen. This has set the trend across the board and has been backed up by a further PIAB report entitled ‘PIAB Personal Injuries Award Values April 24th – 30th September 2021. This report has analysed a five-month period of the current regime and the results are as follows;

  • 2,649 claims assessed pursuant to the Guidelines;
  • Average award reduced by 40% to €14,233 (including special damages);
  • General damages awards reduced by 46% to €11,808;
  • Motor Liability claims reduced by 40% from to €13,230;
  • Public Liability claims reduced by 40% to €15,697;
  • Employers Liability claims reduced by 44% to €17,203.
  • Almost half (48%) of all awards made by PIAB were under €10,000, compared to just 12% of awards in 2020.

It is clear to see that the Guidelines have had a significant impact on the level of PIAB awards to date. The Government, amongst others have welcomed this evidence of reduction in awards since the publication of the Guidelines. The question remains however, is it here to stay?

Awards are part and parcel of personal injuries actions. It does not necessarily end there. This award must be accepted by both the Claimant and the Respondent. Early indications show that contrary to what PIAB initially thought would happen post Guidelines, Claimant acceptance rates have fallen by 14% compared to 2020. This means that unless the Claimant does not wish to continue the action, the next step is to initiate Court proceedings. This brings us back to whether the Guidelines will have a long-lasting impact, and whether the Judiciary will apply them as rigidly as PIAB have to date.

To date, there have been no specific decisions in relation to quantum by the Courts. However, it is expected that cases to which the Guidelines specifically apply will come before the Courts by the turn of 2022. However, it is noted that the Guidelines were not unanimously supported by the Judiciary, with a vote of 83 to 63 of the Judicial Council on 6th March last. It is also noted that certain members of the Judiciary have stated that the Guidelines “ do not change the law”. It remains to be seen whether the tide has turned for good.

Dunphy  v O’Sullivan

This is another example wherein the Courts have not been persuaded to the view that the absence of any significant material damage to a Plaintiff’s vehicle is, in and of itself, a reliable indicator as to the likelihood or possibility of injury to the occupants of the vehicle, or indeed to the level of severity of any such injuries.

The claim arises out of a road traffic accident wherein the Plaintiff was driving his Mercedes taxi when it was struck from behind by the Defendant who was driving a Golf.  The Defendant did not deny that she drove negligently, the primary issue in the case was that the impact was so minor or trivial to be incapable of causing injuries to the Plaintiff as alleged.

The Plaintiff’s evidence was that immediately prior to the impact he was stationary at a yellow box as there was a line of traffic in front of him.  As this line began to move, he took his foot of the brake but before he moved, the Defendant’s vehicle collided with him propelling him forward.  The cost of the repairs to the Plaintiff’s vehicle was estimated at €563.82 which primarily consisted of labour and paint, no parts required replacement.  However, the Defendant’s vehicle endured quite extensive frontal damage which was estimated to cost over €4,000 and this rendered the vehicle an economical write off.  The Plaintiff advised his Engineer that his car travelled about a car length as a result of being struck from behind and his Engineer estimated that this meant that the Plaintiff’s vehicle went from 0 to 11.5 miles per hour during the impact and then stopped.  The Plaintiff’s Engineer agreed that the impact was not that severe to the Plaintiff’s vehicle however it had taken a hit sufficient to cause injury.  He said that he was not saying it was severe but agreed it was a minor impact but sufficient to cause injury.

The Defendant gave evidence to advise that she was 37 weeks pregnant at the date of the accident.  She stated that she did not make contact with the steering wheel as a result of the impact nor did the air bags in her car inflate and she described the impact as mild.  The Defendant’s Engineer described the impact to the Plaintiff’s vehicle as light with no distortion of the rear bumper reinforcement and he described the damage to the Defendant’s vehicle as being “moderate impact damage”.  The Defendant’s Engineer are of the opinion that the impact had the effect of increasing the speed of the Mercedes by 4.3 km/h.  In cross examination he accepted that the impact was not minimal and he conceded that it was little more than that.

The Plaintiff was 64 years of age when the accident occurred, he suffered injuries to his left shoulder, chest and lower back.  While he did not immediately appreciate that he was injured and the damage to his car was very slight and it could still be driven.  He continued to work that evening dropping his fare to her destination.  He said it was on the following Thursday that he found himself unable to get out of bed as a result of pain and limitation of movement.  His GP referred him for an x-ray which showed degenerative changes in his lumbar spine, his MRI scan subsequently showed multi-level disc protrusion, facet joint hypertrophy and spinal stenosis.  He was treated with oral analgesics, muscle relaxants and physiotherapy.  Of importance was his GP’s evidence wherein she told the Court that the Plaintiff was a patient of her practice since 2005 and had no previous complaints of back pain except for a brief mention of backache during a consultation in April 2010 being seven years prior to the accident.  Her opinion was that his lower back pain was attributable to an exacerbation of the spinal stenosis.  It was noted that the Plaintiff had been referred by his Solicitor to Professor Gary O’Toole Consultant Orthopaedic Surgoen.  Mr O’Toole noted that the Plaintiff’s imaging had degenerative disc disease throughout the lumbar spine.  He agreed that somebody with a perfectly good spine might not have problems following a low velocity injury, but the outcome was unsurprising in a spine that had inherent pathology.

The Defendants called Professor Garry Fenelon who examined the Plaintiff and noted that he had some restriction of rotation of his neck but this was pain free, he described the Plaintiff’s lower back as extremely stiff.  His summary was that the Plaintiff had suffered a low velocity accident and he was surprised that he had not made a full recovery and he did not think treatment would be of benefit as the Plaintiff had severe arthritis.  He believed that the Plaintiff’s vehicle had been damaged to the extent of €900 rather than €500.  He admitted that he had not been told of the extent of the damage to the Defendant’s vehicle however he nonetheless maintained an opinion that the Plaintiff’s complaints now were unrelated to the accident but were a consequent of the degeneration already present in his spine.

The Trial Judge in the High Court accepted that the Plaintiff was a credible witness who did not exaggerate his injury and she expressed a preference for the evidence of Professor O’Toole which she described as impressive.  She considered that it was relevant that the Plaintiff had no back difficulty for seven years prior to the accident but now had marked problems.  She was satisfied on the balance of probabilities that the impact of the Defendant’s vehicle could have exceeded the threshold of velocity which could result in the Plaintiff suffering the injuries he described.  She accepted the injury on behalf of the Plaintiff, but an impact can occur and cause minor damage which can cause injury to the occupant of the vehicle.  She assessed the Plaintiff’s damages having regard to the Book of Quantum as €50,000 for pain and suffering to date, €15,000 for pain and suffering into the future together with Special Damages of €4,000 totalling the sum of €69,193.82.

On Appeal, the Court of Appeal upheld the €69,000 award and the Court held that the Trial Judge was perfectly entitled to take the view that she did on the evidence and that she correctly applied the Book of Quantum and Notice of Appeal was described as uninformative but essentially claimed that the Trial Judge erred in holding that the evidence established that injuries could have been caused by the accident.  Delivering judgment in the case Mr Justice Seamus Noonan heard that the Court was not bound to slavishly follow the opinion of experts and it was also entitled to accept expert evidence which it found to be persuasive subject to giving reasons why any particular expert’s evidence was preferred over another.  Mr Justice Noonan heard that the Plaintiff’s Engineer was eminently qualified and gave evidence in a coherent and logical fashion.  His evidence was not contradicted to any significant degree by the Defendant’s expert and the evidence of the Plaintiff’s medical expert was consistent with an asymptomatic condition being symptomatic as a result of trauma and the Trial Judge was entitled to prefer this.

The Court acknowledged the potential for fraud in trivial and minor accidents but that a Plaintiff could also suffer real damage in a slight impact.  The Defendants made legitimate attempts to discredit the Plaintiff’s evidence on cross examination but these attempts largely failed.  The Court noted that the Defence was based on the lack of damage to the Plaintiff’s car and said that “it cannot be doubted here, particularly having regard to the extent of the damage to the Defendant’s vehicle that a reasonably appreciable impact did occur”.  The Court felt that the Defendant’s medical experts’ view was coloured to a significant extent by the minimal damage to the Plaintiff’s car and it was unfortunate that the expert was not told about the extent of the damage to the Defendant’s car.

Based on the above the Court dismissed the Appeal stating it’s provisional view was that the costs should be awarded to the Plaintiff.