High Court of Ireland Decisions

THE HIGH COURT

                                                                                 1996 No. 7495 P

BETWEEN

DEREK SHEEHAN

 PLAINTIFF

AND

MIDWESTERN HEALTH BOARD AND ABID KHATTAK

DEFENDANTS

JUDGMENT of Mr. Justice Roderick Murphy delivered 1st day of August, 2002.

1.        Issue

          The Plaintiff’s claim for damages for personal injuries arising out of a fall in a hospital casualty unit, whereby the Plaintiff claims he has lost his sense of taste and smell raises issues regarding the Health Board and the doctor’s liability to invitees accompanying patients. 

2.        Pleadings

2.1       The Plaintiff claims that on or about the 3rd of August, 1995, he accompanied his wife to Ennis General Hospital within the Health Board area of the first named Defendant.  His wife required medical attention following an accident where she suffered lacerations to the upper lip. 

2.2       The Plaintiff says that Dr. Khattak, the second named Defendant, indicated that his spouse required sutures to be placed in her face and mouth and that he specifically requested the Plaintiff to hold a paper or gauze device at or near the area to be sutured.  He did so, the Plaintiff alleges, as there was no medical nurse in attendance. 

2.3       While so holding the said device the Plaintiff alleges that as a consequence of the negligence and breach of duty of the Defendants or either of them, the Plaintiff fainted, collapsed and fell helplessly to the ground as a result of which he suffered severe personal injuries particularised as loss of sense of taste and of smell and of damage to his hearing in particular to his right ear.  It was pleaded that the losses are permanent and that the Plaintiff, as a consequence, had difficulty in doing his work as a truck driver; his enjoyment of life was ruined and he suffered a change in temper and outlook on life. 

          The particulars of negligence and breach of duty include, inter alia, the following:

             -  requiring the Plaintiff to observe a distressing surgical procedure being carried out on his wife and failing to remove him from a source of distress and nervous                                                       shock and exposing him to an experience for which he was neither trained nor capable of handling and which the Defendants knew or ought to have known was likely to cause him to faint or suffer shock and caused the Plaintiff to faint,   collapse and suffer injury.

             - failed, if such were necessary, to permit the Plaintiff to hold the device in such a manner and in such a stance so as not to expose him to shock;

             - failed to provide any or adequate number of nurses or nursing attendants to hold the said device

             - failed to enquire from the Plaintiff as to whether or not he was capable of doing the task required and failing to advise him of the risk and danger of fainting;

             - failed to ensure the safety of the Plaintiff and to provide the Plaintiff with a seat or other support so as to prevent him from falling or fainting.

2.4       As a consequence the Plaintiff suffered a fractured skull, shock, distress, pain, suffering, nausea, loss of consciousness.  He now suffers loss of sense of taste, smell and damage to his hearing with noises in his ears most particularly in his right ear.

           In reply to particulars, the Plaintiff believes the accident to have occurred between 2.00 and 3.00 a.m.  The Plaintiff and his wife had driven from Carrigaholt to Ennis as a result of the incident which occurred around midnight.

          While the Plaintiff has made no claim for a loss of earnings, as he was on holidays at the time of the accident, he stated, in reply, that he did not return to work.  He has been self-employed since.

2.5       The defence denies each and all of the allegations.

3.        Plaintiffs Evidence

3.1       Derek Sheehan, the Plaintiff, gave evidence of driving from Carrigaholt to Ennis, which took one hour, following the laceration to his wife’s face.  He said the casualty unit in Ennis Hospital was quiet.  A nurse came out to the waiting room and asked him to come in to the cubicle in casualty where his wife was.  The Doctor spoke to her and indicated that he was going to stitch the inside of her lip.  An injection was given into her bleeding mouth.  A white gauze on the left cheek kept falling down and the doctor asked him to hold the gauze.  When the doctor produced the suture he fainted and woke up in a bed in the hospital.  He said that he was kept overnight.  He discharged himself to go back to his children who were with their aunt on holidays in Carrigaholt. 

          Three to four months later he went to a newly opened restaurant in Limerick and ate a hamburger which the other members of his family found disgusting.  He did not taste it as such.  He went to a doctor who told him to see a solicitor.  He was referred to Mr. Pigeon, a consultant neurosurgeon who examined him on the 15th of February 1999.

3.2       Mr. Sheehan described incidents related to his loss of smell which he said “wrecked my head - couldn't understand why” he could taste salt and sugar but not other flavours - he couldn't taste the difference between Guinness and beer other than by way of colour.  However it was the loss of smell that aggravated him more than the loss of taste.

3.3.      He referred in particular to a incident of confusing diesel with water when making tea; an incident of not smelling gas at home to which his wife, in her subsequent evidence, elaborated.

3.4       In cross examination he said that the assault on his wife was not reported nor did he seek to identify the assailant.  He was not a stranger to litigation having had, as indicated in the reply to Notice of Particulars, been involved in two personal injury claims.

          He says that at about 3.30 in the morning he waited in casualty where his wife was on a trolley in a cubicle and no doctor was present.  His wife insisted that he go into her.  There were two nurses present: Nurse Golden and Nurse Melody.  He could not remember if there were patients present.  When asked whether he told his solicitor that the hospital did not have an adequate number of nurses he replied that both nurses were there. 

          He described the cubicle as being four to five feet wide and the length of a trolley.  There was room for a doctor and himself.  The nurse brought in the trolley with the sutures.  He was there when the doctor was stitching his wife.  He had gloves and a needle holder and sterile equipment.  He denied that he was not asked to participate in the sterile procedure and also denied that he did not hold any gauze.  He said he was holding his wife’s hand.  He would not accept the recollection of the nurses to the contrary.  He remembers conversation with the doctor and the nurses but doesn't remember the nurses asking him if he would be all right.  He denied saying he would be alright.  He denied saying that he had been present at the birth of his two children and said that the nurses were making it up.

          He did not disagree that Mr. O’Kelly, the consultant, had given him a discharge letter on the 5th of August 1995, rather than that he discharged himself.

          He agreed that he made no complaint to the restaurant regarding the burger four months after the incident.  He said that he had no problem with taste and smell up to then. 

          On the 20th of October 1995, he said, his solicitor wrote complaining of loss of taste and smell and loss of hearing.  He said that his doctor advised him to go to a solicitor after the burger incident. 

          In relation to the complaint regarding his hearing he said that this had cleared up and was referred to in Mr. Manning’s report.

4.        Evidence of Plaintiff’s Wife

4.1.      Mrs. Christine Sheehan also gave evidence.  Her injury had resulted from the door of a chip-shop in Carrigaholt.  Her husband brought her from Carrigaholt to Ennis General Hospital late at night.  There were two nurses and a doctor in the casualty.  There was a young girl and her father there.  The girl was brought to the ward.  She was put sitting on a chair and a nurse cleaned her.  The doctor told her that she had to be stitched and put her on a gurney.  She asked for her husband.  He stood at the right hand side with the doctor at the back.  The nurse put the tray between them and left.  She was cut right through and an injection went into her mouth.  Saliva dripped on the gauze.  She was numb in ten minutes.  The doctor put in a lot of injections.  She said that the doctor said to her husband “could you please hold that” her husband then fainted.  There was a nurse at the bottom of the bed.

          She said that when her husband had fainted the trolley holding the sutures upturned with a crash.

          Mrs. Sheehan gave evidence that her husband did not smell gas being left on at home on one occasion when she returned at 11.50 p.m. and that she had to get got her husband and children out of the house.  She also referred to a pot of water boiling to whiten her daughter’s socks when on holidays.  She says her husband was unaware of the smell when the water had boiled off and burned the socks.  Her husband joined her at bingo away from the house when, half an hour later, a boy came to say that there was smoke.  As a result of this incident they were asked to leave the holiday apartment they had been allocated. 

          She said in relation to her husband's presence at the birth of her children that he had been present at only one birth and did not cut the umbilical cord. 

4.2.      On cross-examination she said that she had been to a pub on the night in question and then went to the chipper.  She denied that there was a disagreement with another woman or hit her.  The nurses recollection of that was made up.  No-one had assaulted her.  There were no nurses present when her husband joined her.  She had no recollection of a conversation with the nurses.  It was all the invention of the nurses.  She stayed overnight and her father came and collected her. 

          She said that the nurses had let them in to casualty and brought her to a bed and then sent for the doctor and got the trolley. 

          She wanted her husband to be brought in as she was very nervous.  She said that her husband was asked to help the doctor.

5.        Medical Evidence

5.1       Mr. Pigeon, the consultant neurosurgeon, had examined the Plaintiff on the 15th of February 1999 in relation to the incident in August 1995, three and a half years beforehand.  That report recounts what Mr. Sheehan told him: that some weeks after the incident he noticed that he had no sense of smell and subsequently he attended Mr. Manning, the ENT surgeon.  His principal residual complaint was that of loss of the sense of smell with a loss of the higher flavours of food.  No complaint was made of any blackouts or epilepsy and no complaint was made of any intellectual or memory difficulties.  Mr. Pigeon found that, on examination, Mr. Sheehan was anosmic.  There were no other vocal or latteralising neurological signs.

          His opinion was that the head injury, as judged by the duration of post traumatic amnesia, would appear to be mild in degree.  Anosmaia is a well described sequela to head injuries of this type and is almost invariably permanent.  It does have some significance in relation to some occupations, particularly those involving domestic gas.  The risk of late post traumatic epilepsy is now less than 1%.

          Mr. Pigeon agreed that it was inappropriate that Mr. Sheehan be asked to assist in a minor surgical procedure on a relative.

5.2.      Mr. Manning, consultant ENT surgeon, made two reports for Mr. Sheehan’s solicitor dated the 24th of January 1996 and the 20th of October 1999. 

          He said he had examined Mr. Sheehan on the 13th of September 1995 at the request of his general practitioner.  Mr. Manning said that Mr. Sheehan alleged that while his wife was being sutured in the casualty department of Ennis Hospital he fell to the floor and was kept in for a period of two nights.  Following the fall he noticed a noise in his right ear which lasted for two weeks.  He also complained of not being able to smell or taste anything.  He also felt that his ear was “not right”.  Examination showed no abnormality to his ear, nose or throat.  He denied being able to smell or taste anything when tested.  A hearing test showed no significant hearing loss to be present in either ear.  He understood that an x-ray of his skull taken at the time of the injury showed a hairline fracture in the right occipital region.  His opinion was that it would appear that Mr. Sheehan fractured his skull as a result of the fall, was rendered unconscious at the time of the injury and now has no sense of taste or smell.  Mr. Manning said it is possible this loss of smell and taste is due to the injury to the olfactory nerves as a consequent of the head injury.  He did not think he received any significant damage to his ears.  The loss of smell and taste is likely to be permanent.

          In his second report dated the 20th of October 1999, having reviewed Mr. Sheehan, he said that his sense of loss of smell had remained.   While he was able to taste things such as sugar and tea, he was not able to smell anything.  The tinnitus about which he complained in the past had resolved.  Examination showed no abnormality.  A hearing test showed a mild hearing loss to be present. 

          The prognosis was that Mr. Sheehan’s loss of sense of smell is not likely at this stage to return.  Any hearing loss as a result of the accident is not likely to deteriorate from this cause.

          Mr. Chris Pigeon, referred to his report of the 3rd of March 1999 and, gave evidence of the subjective nature of smell and taste sensation which are separate though higher flavours require both sensations.

          10% of people who suffer severe injuries to the head suffer a loss of these sensations.  He hadn't seen the x-rays. 

          On cross-examination he said there was no history of blackouts no memory loss.  The subjective nature of the test depends on the patient.  He had no personal reason to doubt his complaints. 

5.3.      Dr. Peter O’Connor of the Mater Hospital Dublin had been in practice in the Accident and Emergency Unit, as a consultant, since 1978.  He explained how vasa vago Syncope - fainting - is a autonomic system which is stress related whereby a shortage of blood causes the brain to switch off, muscles to crumble and the body to collapse.  A significant number faint on the sight of needles and other procedures.

          He believed that Mrs. Sheehan had put the nurses under pressure and had made an unreasonable request.  It is difficult to refuse these requests.  Fainting was in the mind of the A/E staff in Ennis, in his opinion. 

          There should be no invasion of a sterile area nor involvement by a patient or relative in a sterile procedure. 

          Standing was a position of high risk.  You can’t faint lying down.  While there is a higher risk sitting down because of procedure you are safer sitting. 

          Past experience is not an indicator of fainting: accordingly the assurance that the nurses had that Mr. Sheehan was used to such procedures was not relevant.

          He believed that standard procedures is not to have relatives present but if they have had to be then they should be seated and their prior experience is not relevant.  Under cross-examination he agreed that fainting was wholly unpredictable.  He believed it to be reasonable to let Mr. Sheehan in when the patient asked for him.  He would not criticise that.

          The procedure was a simple one involving two sutures.  The nursing staff were aware of the risks.  It was reasonable for the nurses to ask.  The only criticism he would have is not having Mr. Sheehan sitting down.  If that were done he would have no criticism at all.  One can always make room.  The fractured skull was not important it was the loss of smell: there were only two cases in the last 24 years.

          One must think worst case scenario as most A/E staff have witnessed fainting.  If the nurses had never seen any patient fainting then they had acted reasonably.  There was an unreasonable request by Mrs. Sheehan.

5.4.      Dr. Cusack, consultant A/E specialist from the Cork University Hospital, South Infirmary and Mercy Hospital in Cork had 20 years post qualification experience, 9 of which were at consultant level. 

          He believed the staffing level to be adequate indeed excellent with two nurses and a doctor for a cut lip.  Such a procedure was at no. 4 out of 5 hospital procedures: the 5th was a matter that could be dealt with at general practice level.

          With regard to visitors he allows them being with patients even if that means large retinues attending.  It is difficult, in an open A/E unit for visitors to be kept separate.  It is not infrequent to have more than one accompanying a person with a patient.  However the first duty of care is to the patient who must be seated or lying down at all times.  There are no rules with regard to accompanying persons: there may not be enough seats for everyone.  Indeed seats may be fixed so as not to be used as weapons in the event of violence occurring.  There is no policy, training or procedures with regard to seating for visitors.  You will rely on good common sense.  The evidence given by the nurses was, in his opinion, reasonable.  It was appropriate to allow Mr. Sheehan in and, in his experience it is useful to allow visitors to assist except in sterile procedures. 

          On cross-examination he agreed with Dr. O’Connor and Dr. Khattak that people faint even at the thought of pain.  The unpredictable nature of fainting is certain.  60% of his patients are triage no. 4, as Mrs. Sheehan’s was.

          He agreed that in the event of fainting a visitor could fall forward or backwards.  So long as visitors are not interfering with the operation he would accept the help they give to the patient.  He did not think the provision of chairs would reduce the risk as people can faint in chairs.

6.        Nurse Melody

6.1.      Nurse Anne Melody, with 20 years experience at the time, gave evidence in relation to the arrival of Mr. and Mrs. Sheehan at 3.30 a.m.  Nurse Melody recounted that she was told that the injury had occurred when Mrs. Sheehan was struck by another lady wearing a ring which caused the laceration. 

          There was no-one in casualty which had three sections where, as there was no-one else there, did not have their curtains drawn.

          She summoned Mr. Sheehan from the waiting room as his wife had requested his presence.  Nurse Melody asked him if he was comfortable and he replied that he had been present at the birth of his two children and had cut the umbilical cord of one of them.  She had told him to stay.  She described him as a pleasant chatty man who told the nurses how he had driven from Carrigaholt. 

          She said that Dr. Khattak, the second named Defendant, came after about 20 minutes and injected her with local anaesthetic and began to suture.  Nurse Golden was in attendance on the left hand side of Dr. Khattak.  Mr. Sheehan was at the right hand side of the trolley and she was at the end of the trolley.  She did not see Mr. Sheehan with a gauze.  Without warning he fainted and was attended to and brought to the ward.

          Nurse Melody said that, as a rule, she asked all relatives to wait except parents and children of elderly patients. 

6.2.      On cross-examination she said she was sure of the positioning of Mr. Sheehan, Dr. Kattak and herself notwithstanding that the scar was on the right hand side of the upper lip.

          The reference to the accident book in the hospital chart was a reference to a single page “risk management report”.  It was signed by her, as controller who gave as the status of the injured party a “member of public “ and her opinion of the incident as follows:-

“This patient (sic) fainted without warning while he was with his wife who was very nervous while she was being sutured.  He banged his head on the floor Action already taken: Dr. Abid (the second named Defendant) examined the patient and advised he should be observed overnight in A/E and for review in the morning.”

          She agreed that there were chairs in the casualty - one on which Mrs. Sheehan had sat on.

7.        Nurse Golden

7.1.      Nurse Brid Golden with 17 years experience at the time, said that she had a recollection of the incident and what Mrs. Sheehan had told her regarding being hit on the lip by another lady at a chipper in Carrigaholt. 

          She was the only patient.  There were two nurses on duty.  She got the sterile pack and attended the doctor who had indicated two sutures.

          She was on the left hand side of Mrs. Sheehan at her elbow with the doctor.  Mr. Sheehan was on the right hand side.  He was not requested to hold a swab or gauze.  She said that she had asked him whether he was comfortable and he was confident.  He was a pleasant chatty person anxious to support his wife who was upset and requested him to stay.  She did not note any warning signs before Mr. Sheehan fainted, Nurse Melody was at the end of the trolley.

7.2.      In cross-examination she said that Mrs. Sheehan was wrong in believing that the medical trolley was upset.

          She said that Mrs. Sheehan had made a strong request that her husband be present and she would not refuse her.  She was certain that there was no-one else in casualty other than the two nurses, the doctor and Mr. and Mrs. Sheehan.  She did not recall a young girl with her father.

8.        Evidence of second named Defendant

8.1.      Dr. Abid Khattak, who qualified in May 1991 and practised in Iran for seven years, had worked in Ireland since 1991 in Galway University Hospital and then in Ennis where he worked for two years prior to the incident.  He was a surgical house officer there and is now a Registrar in neurology in St. James’ in Dublin.

          On the night in question he was called to attend the patient who was lying on a trolley.  He took her history.  It was a simple surgical procedure to deal with a laceration of the upper lip.  He washed his hands put on gloves and proceeded with the suture pack which had been provided to him by Nurse Bríd Golden, who assisted him.  He said he was on the left hand side of the patient.  Nurse Melody was standing at the foot of the trolley when Mr. Sheehan fainted. 

          He did not ask Mr. Sheehan to get involved in the procedure nor to assist.  He did not ask Mr. Sheehan to hold any gauze or device.  He did not need his assistance.  He did not give four injections: only one was necessary.  It took three minutes to react and lasted for thirty minutes.  Mr. Sheehan was there at the giving of the injections.  The witness had almost finished the procedure when he heard a bang when Mr. Sheehan fainted and fell on the floor.

8.2.      On cross-examination he agreed that Mrs. Sheehan might have sensed more than one injection.  The surgical trolley was not upended.  His first obligation was to his patient.  With regard to the incidence of fainting he said that it was not unusual.  It can happen with tiredness, seeing blood, and seeing a needle.

          With regard to the provision of a chair he stated that nobody is secure standing up.  It was an extremely minor procedure. 

9.        Further Evidence

9.1.      In relation to the issue of credibility both Mr. and Mrs. Sheehan were recalled to deal with evidence in relation to whether other persons were present in the casualty unit at the time.  Mrs. Sheehan gave evidence that there was a little girl with her father in the cubicle next to her but that she had gone before she, Mrs. Sheehan, was dealt with.  She said that there was no nurse with her when she was injected: no-one else was there.  Nurses were not there in the room.  She could see that as there was nothing covering her face: there were no nurses there.  They came into the room when her husband fainted.

          Mr. Sheehan said he was standing and remembered everything.  He could see one of the nurses on the phone.  The nurses left him there.  On cross-examination he agreed that he had discussed this issue with his wife.

          He also said that no-one was prosecuted in relation to the injury and he did not refer to the injury being caused by the door of the chip-shop as he wasn’t asked. 

10.       Defendant’s submissions

          Mr. Richard Keane S.C., on behalf of both Defendants, submitted that the issues of fact to be determined by the Court were whether

1. nurses were present;

2. the Plaintiff was required to hold the gauze/device;

3. hospital staff exercised reasonable care.

          In his submission the case was not a medical negligence case but an occupier’s liability case where the common law duty of care was to take reasonable care with regard to the premises.  The nurses had admitted Mr. Sheehan reluctantly on his wife’s insistence.  The duty of care is not to provide for unpredictability.  The nurses were alert to the possibility of a difficulty in his being present. 

          The Court should not prescribe how the hospital should operate.  Reference was made to Kelly -v- Board of Governors of St. Lawrence's Hospital (1989) ILRM 437.

11.       Plaintiffs Reply

          Mr. McMahon S.C. believed the case not to be an occupier's case but a higher duty of care between that and medical negligence where the Plaintiff was brought into close proximity to the procedures.

          Taking the Defendants version, the Plaintiff was invited and permitted into the “inner sanctum,” in the line of sight of the operation.  There was a definite risk to people fainting.  There was a possibility of greater injury to those who were left standing. 

          The trial judge in his direction to the jury in Kelly -v- Governor of St. Lawrence's, referred to above, referred to the general standard of proof as “a real possibility that harm would come to the Plaintiff.”  In the Supreme Court Finlay C.J. and Walsh J. did not think that amounted to a misdirection.  Walsh J., in discussing possibility and probability, held that once there is foreseeable possibility then the persons involved are on notice (at 444).  Undoubtedly, he continued, the standard of care which might reasonably be expected may be sufficient if it is commensurate with the degree of probability. The evidence was that Mr. Sheehan went out “like a light” and the staff could not have done anything to prevent his falling.

          The Defendants were negligent in that they gave Mr. Sheehan less than proper attention.  They exposed him to an unnecessary risk of injury.

12.       Decision

12.1     This case is somewhat unusual in that it involves an injury to a party in a hospital where that party was not a patient.  A decision was taken by the Plaintiff to bring his injured wife to Ennis Hospital in the middle of the night - a journey of about an hour.  Necessarily that decision excluded a visit to a GP or the calling out of a GP, assuming that such GP’s were available in the Carrigaholt, Kilrush or Kilkee area.

          Hospitals and particularly accident and emergency units are traumatic places.  They are places where people are sick, suffering and in need of treatment.  Some of that treatment is conservative: other is invasive.  Injuries, blood and the treatment by way of suturing, surgery and injections against the back drop of drips and other medical apparatus and equipment heighten the sense of trauma.  Hospital smells prevail.

          Public hospitals provide the service to the public on a continual basis.  The category of persons entering on to the premises of hospitals are more difficult to determine given the open nature of such institutions.  However, patients must be considered to be in a different category to accompanying parties or visitors.  The duty of care situation with regard to patients is very exacting both on Health and Hospital Boards and on the medical, paramedical and nursing professions.  The primary duty of care is, or course, to the patients.  From the patient’s point of view their very infirmity requires an exacting duty of care.  There is no doubt, at times, that those accompanying the injured and infirm are, themselves, traumatised.  Indeed, in emergency situations, the hospital staff themselves are affected.

12.2     In the present case Mrs. Sheehan presented with a relatively minor complaint, from the hospital's point of view.  It may very well have been a matter that a local GP could have dealt with.  There was no evidence one way or the other in this regard.   It is common case that it was a minor procedure.   However, I have no doubt that both Mrs. Sheehan and her husband, whom I presume drove, were tired, and possibility exhausted and traumatised in relation to the incident and the journey.  Mrs. Sheehan requested, required or insisted, according to the various recollections of events almost seven years ago, that the Plaintiff be with her. 

          The nurses considered a request and in talking to Mr. Sheehan ascertained whether he was comfortable in being with his wife during treatment.  There is some conflict of evidence as to what Mr. Sheehan told the nurses.  I have no doubt, however, that his demeanour did not show any signs of him being unfit to be at his wife’s side.

          The evidence of Mr. and Mrs. Sheehan are ad idem with regard to the involvement of Mr. Sheehan in holding the gauze/device at Mrs. Sheehan’s mouth.  Their recollection is that Mr. Sheehan was requested to do that.  The evidence of both nurses and that of Dr. Khattak is that Mr. Sheehan held Mrs. Sheehan’s hand and was not involved with holding a device or gauze.  He was certainly not involved in any way in a sterile procedure. 

          I have some difficulties with regard to the Plaintiff’s evidence in this regard.  It is inconsistent.  It is difficult to recollect matters so long ago even if it was a single incident for the Sheehan’s.  It does not seem to me that the medical practitioner of Dr. Khattak’s experience would have allowed Mr. Sheehan to do what he claims to have done.  I accept Dr. Khattak’s evidence and that of the nurses in this regard.

          The Statement of Claim, at paragraph 4, states:-

                  “The second named Defendant (Dr. Khattak) requested the Plaintiff to hold   the said device as at that time no medical nurse was in attendance.”

          Both Mr. and Mrs. Sheehan, in their evidence said there was no nurse in attendance.  Mrs. Sheehan went further: there was no nurse in the room.  Both nurses and Dr. Khattak gave evidence that Nurse Bríd Golden was in attendance and beside Dr. Khattak and that Nurse Melody was nearby.  I accept this evidence.

          There would seem to me to be no reason why at least one of the nurses was not in attendance.  It is common practice.  The only evidence, that of Dr. O’Connor and, indeed, that of Dr. Khattak himself, was that in a busy casualty that a doctor could perform such a simple procedure on her or his own.  That was not the case in the casualty unit that evening. 

          There seems to me to be a delicate balance involved in allowing accompanying persons with patients whether on admission, on treatment or on convalescence.  There is, of course, a risk to anyone going to hospital of being upset or indeed sharing the trauma of treatment.  The balance is in favour of the patient.  Medical practitioners may prefer to deal with patients on their own and yet recognise the physcosomatic benefits of the patient being with family or friends.  It may be that, in smaller less pressurised casualty units, accompanying persons can be more readily accommodated than at busy city units.

          It is clear, in any event, that the duty of care is primarily towards the patient.  Visitors are not entitled to the same duty of care. 

          There is, moreover, a distinction on the liability of the treating doctor with regard to the exercise of this duty and the liability of the hospital as an occupier to those who are necessarily on the premises. 

          All negligence cases require proof of a duty of care, a breach of that duty of care and consequential damages ensuing. 

          The duty of care owed to the Plaintiff in this case is, in my view, the duty of care of an occupier towards an invitee.  It follows that there is no basis for any action by the Plaintiff against the second named Defendant.

12.3     In relation to the first named Defendant the Court must consider whether there was a breach of duty of care.  The Plaintiff alleges that the Plaintiff should not have been allowed to be there (see par. 6 (a), (b) and (c) of the Statement of Claim particularising the negligence in breach of duty or, alternatively in their failure to take reasonable precautions for the Plaintiff’s safety (d) and (k) and failing to provide the Plaintiff with a seat (l).  I have already dealt with the other grounds relating to the involvement in the procedure (e), (h) and the failure to provide any or adequate number of nurses or nursing attendants to hold the said device (g).  As indicated I preferred the evidence of the Defendants in this regard. 

          The net issue, accordingly, relates to the provision of the seat or support. 

          There was differing evidence from Dr. Peter O’Connor and Dr. Cusack in this regard.  I do not think, having considered that evidence, that the counsel of perfection recommended by Dr. O’Connor is an established procedure.  It does not seem to me to be a matter which should be made a universal proposition or, indeed, in this particular case, given the inquiries made by the nurses, would have been reasonable to impose in relation to a minor procedure.  Moreover, I must have regard to the likelihood of assurance given by the Plaintiff to the nurses that he would be comfortable  being there.  Clearly he was aware of the nature of the laceration for at least an hour before hand as he drove his wife to the hospital.  Moreover, if the evidence of the nurses was that they had not experienced family members face fainting at such a procedure then there can be no basis in ascribing knowledge to them of such a risk. 

          It is common case that the Plaintiff was not a patient in the hospital. Unless there was some act or omission of the part of the Health Board which amounted to a breach of duty there is no negligence.

          The Court must distinguish cases involving patients from those relating to invitees.  [McMahon and Binchy: 7.25-7.54].

          The factors discussed by the Supreme Court in Christie -v- Odeon Ltd. 91 ILTR 25 at 29 are probability of an accident and the gravity of the threatened injury in the context of the social utility of the Defendant’s conduct.  The determination of what constitutes unreasonable conduct involves a value judgment.  It is necessary to emphasise that the test for liability in a case of alleged negligence based on mere foreseeability or some degree of possibility or probability, is not correct (see Kelly -v- St. Lawrence's Hospital (1989) ILRM 437 at 448 per Henchy J.).

          In the circumstances of this case the Nurses employed by the first named defendants had not experienced the fainting of an accompanying person but were aware of that possibility.  They acted prudently in making enquiries.  They balanced the request of their patient with the residual risk following the enquiries.  Nurse Golden was in attendance attending Dr. Khattak while Nurse Melody was in the vicinity.  The Hospital staff, in my opinion, exercised reasonable care.  Accordingly, they do not seem to me to have acted negligently.

          In relation to the second named Defendant, Dr. Khattak, whose evidence I accept, I find that the Plaintiff was not required to hold the gauze or devise as pleaded.

          Moreover, in view of the undoubted social utility of the Defendants (see Whooly -v- Dublin Corporation (1961) IR 60 at 64) and the particular service they provided to the Defendant’s wife the Court should not prescribe how the Health Board Hospital should manage persons accompanying patients.

          In the circumstances I must refuse the Plaintiff’s claim.