The wrong arm of the law

  • 13 November 1985
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Earlier this month the High Court awarded £49,780 to Patrick McDonald. The award was made after he sued a solicitor who had been negligent in the handling of a car accident case on McDonald's behalf. McDonald is forty-two, and it has taken him fifteen years - most of his adult life - to get this award made.

It comes at a time when the government is thinking about legislation to cover the area of legal misconduct and negligence. However, even with the award, Patrick McDonald's troubles are far from over. He still has to collect the money. Redress through the courts for legal incompetence and negligence is costly, lengthy and prohibitive. In an exclusive interview with Magill, Patrick McDonald traces the events of the last fifteen years that led to the award.

1. Pull Over

THE LAST THING PATRICK McDONALD REMEMMbered was lights coming towards the car. He said something to the driver like "better pull over." He was sitting in the back seat of the Volkswagen with two others. There was nobody in the front seat - the driver had just dropped his wife off and none of the three in the back had bothered to take her place. McDonald was coming from Clondalkin after a meeting with a business acquaintance, and had offered to get a taxi home. He took a lift instead. The Volkswagen was passing out another car when McDonald noticed the lights, thought they'd better pull over. This was around midnight on a summer's night in 1970.

He never knew what happened next. Afterwards, Patrick McDonald was told that he had gone through the windscreen of the car. A priest pulled up at the scene of the accident and ahnointed him on the roadway. He woke up the followwing evening in the Meath Hospital in Dublin. He was still wearing the same clothes and the blood had just been wiped off his face. He thinks now that he was not expected to live. His wife Joan and sister Phyllis were there. That was the first thing he remembered - the sound of their voices calling his name. He spent ten days in hospital but was lucky to be alive. Some facial bones were broken and a cheek bone also. A nerve on his face had been pinched and he was numb on the right side of his face. His right hand was numb as well. But more seriously, his neck and back were damaged. He felt as if his head had been moved a notch across his shoulders. He underwent physiotherapy for that but it didn't do much good.

In that summer of 1970, Patrick McDonald was twentyyseven years old. He had been married since 1966 - just four years. He was living in a flat and working as a general conntractor, mainly in the Dublin area. He was doing a job for Telefusion that summer. He had the contract for the entire country. The work was mainly connected with television aerials and involved a lot of climbing. As soon as he got out of hospital, McDonald went back to work. There was no way that he could know then what that car crash was to cost him over the next fifteen years.

2. I Know A Man

AT FIRST, HE NEVER THOUGHT OF GOING TO court and claiming compensation for the accident. He had been working as a general contractor since his late teens. He had built his first house when he was twenty-one. His granddfather had a similar business around the turn of this cenntury, and his father had also been involved in contracting work but had stopped. Patrick re-started the business. He specialised in roofing repairs as there was no great outlay for machinery needed. The capital required was minimal. Workers were taken on when necessary. Sometimes there would be two or four men working for him. In the summer of 1970, there were nine employed. He priced all his own work and always left himself covered. He'd let a job go rather than do it too cheaply and lose money on it. For the first half of 1970, McDonald & Co made a profit of around £5,000. One of the first jobs he priced after the accident was for a night club in Dublin 2.

The job involved putting in seating and general fixtures and fittings. Patrick McDonald found himself lying down on benches during the day and becoming generally listless. This was contrary to his normal behaviour but he didn't worry about it too much and thought that it would pass. One day, the workers were hanging a canopy over the wine bar with piano wire. He jumped up on the counter to give them a hand. He got dizzy and fell off.

Over the years, this dizziness would manifest itself in different ways. Looking at moving cars or crowds, or even the sea, would leave him disorientated. He found out that he couldn't climb either, that he would be likely to fall. Following the incident with the canopy, he was having a cup of tea with one of his workers. He was worried. He thought that he would be back to his former self in a short time. He began to wonder what his future would be if this didn't happen. He talked to one of his workers, Shay Butler, about going to a solicitor and mentioned that he would pay a visit to his own family solicitor.

Shay Butler said to him, "I know a man, a solicitor, and he's good." This man had recently settled an action for Butler. Butler said he knew him quite well. McDonald wondered if it was not already too late to make a claim as it was now two months after the accident. In any case, he went to see the solicitor recommended by Butler. His name was Micheal B. 0 Maoileoin. He found out that he was not too late. When the job at the night club was finished, he discovered that he had lost money on it. It was highly unnusual, but he had underpriced the job. Patrick McDonald linked this error of judgement directly to the car accident.

3. Fun And Games

PATRICK McDONALD WENT TO SEE MICHEAL 0 Maoileoin a few times in those early months. The solicitor indicated to him that he could bring the matter to a satissfactory conclusion. He was going for medical checks at regular intervals and one of his eyes was also affected. Checks on this revealed that the eye damage was not relaated to the accident. McDonald had stopped working after the night club job. He had saved money and his wife and two children were living on that. His back was still bad.

It was indicated to McDonald that there were prosecutions outstanding against the drivers of both cars that had been involved in the accident. It was decided to wait until those were disposed of to see where criminal liability might lie. Criminal liability would indicate who best to follow in a civil action. Finally, a conviction was recorded and the legal process of sueing began. The year was 1971. Meannwhile, although McDonald could no longer climb himself, he again started his business.

He began to take on work and issue instructions to his workers how it was to be completed. On roofing contracts, he could not supervise the work himself. Jobs went wrong again and again because he could not personally take charge. In the summertime, some of the workers would be up in the valley of a roof, where he believed they were doing anything except work. Meanwhile, nothing much seemed to be happening with his case throughout 1972 and 1973. <-

McDonald wanted the action to go into the High Court and be heard before a judge and jury. But all options were still being kept open - including the possibility of a settleement out of court. He visited Micheal 0 Maoileoin often at his offices at Baggot Street. In 1973, McDonald began to get apprehensive as there did not seem to be anything happpening with the case. He then began to experience difficulty in seeing his solicitor and there seemed to be unnecessary delays. McDonald would make an appointment and 0 Maoileoin might be delayed with a client.

Once, McDonald claims that he called to the office and was told that 0 Maoileoin was out. He then went to Toner's Victorian Bar on Baggot Street and made a 'phone call and o Maoileoin spoke to him. He said that he would call up. He watched the office for a short while and 0 Maoileoin came out and headed towards his car. McDonald caught up with him - there had been some mix-up with the girl at the reception.

One day he got desperate and went into the office.

O'Maoileoin wasn't there and he asked the girl to take a look at his file. When he got it, he went to walk out the door with it. She started to cry and said that she shouldn't have given it to him, that she would be in trouble. He gave it back to her.

In 1974,0 Maoileoin moved offices to Fitzwilliam Street, "and that" according to Patrick McDonald, "was when all the fun and games started."

He was still having medicals and physiotherapy regularly.

But the latter was not doing him much good. The business had more or less collapsed although he still held on to some contracts he had with the Eastern Health Board. McDonald and 0 Maoileoin were still on good terms. They discussed the renovations that were going on in the basement of the new offices at Fitzwilliam Street. But McDonald was starrting to get very worried. He had no money and the case was being put back and there seemed to be endless delays. He had to get money from the bank for school fees for two children. By now, there were two more children in the McDonald household. His wife Joan had given birth to twins the previous year.

Despite the delays and the personal difficulties he was experiencing, McDonald did not develop an animosity towards his solicitor at this stage. They were quite friendly. McDonald would talk to him about Fianna Fail, of which he was a member, and the fact that he had canvassed for Erskine Childers and Ben Briscoe among others. Around this period - 1974-'75 - McDonald did a job at Dundrum Mental Hospital. It was on a "time and materials" basis which meant that he just signed the time sheets and ensured that the hours worked were accurate. It had less responsiibility but also far less money. He did another job on the same basis for the Eastern Health Board at Aughrim in County Wicklow. He started to paint a wall at one point. He fell off an orange box, unable to hold his balance. The job was done badly and his price was cut. He started to call more often on his solicitor.

4. I'll Get You A Fair Settlement

THE LAST JOB PATRICK McDONALD DID AT THIS time was in Arklow. He got a letter of undertaking from 0 Maoileoin and passed it on to his bank. On the strength of this, he borrowed £250 or £300 and went down to Arklow. Things went badly wrong. The job was never finished and he never received any money for it.

Around 1975 and 1976, McDonald sometimes called to O Maoileoin's office every day. The women in the recepption area used to tell him that he was there more often than they were. He sat on a bench in the waiting room, repeating words of wisdom from Kipling hung up on the wall. The words suggested that you should keep your head when all around you are losing theirs. Around this time, he was having difficulty sleeping. He was prescribed Mogadon. The dosage had to be increased. He also attended a psychiatrist. His marriage was in difficulties and he was drinking heavily. In 1975, he had a consultation with his solicitor and barrissters in the Four Courts.

o Maoileoin and the junior counsel in the case met with a senior counsel, according to McDonald. He remembers hearing something about an offer, something about £3,000, but cannot remember exactly what it was. He explained to the senior counsel that he was thirty-two and that his workking life would be another thirty-two years. He said that he paid his labourers £40 a week, and that if he himself was fifty per cent incapacitated, he would therefore be entitled to at least £30,000. McDonald says that the senior counsel said "I'll get you a fair settlement." He says that the senior counsel also advised him to get himself looked after. MeeDonald says that he was trying to impress upon his legal team the enormity of what he was facing. It was mentioned to him that the taxman would take much of a settlement of that size. He claims that he wasn't too worried about the taxman, that the settlement should be got first and the taxxman could be dealt with afterwards.

He started to feel himself "going". He'd walk down to O'Maoileoin's office because he didn't have the bus fare. He'd ring and "kick up stink". He kept putting pressure on his solicitor to bring forward the case. Money was even scarcer at this stage and he couldn't pay the rent. He thought of "doing away with 0 Maoileoin". And then he was told that the case was coming up. This was in 1977, seven years after he had been in the car crash.

5. Where Am I Going To Get A Solicitor?

PATRICK McDONALD WAS STILL ON MEDICATION and seeing a psychiatrist. His marriage was getting worse. He talked with his wife about buying a small shop with the money they hoped to get. He was prepared to put in long hours even if there wasn't that much profit in it. The settleement would ensure a future for himself and his family.

He didn't trust 0 Maoileoin at this stage. When he was told that the case was coming up, he went down to the Four Courts but couldn't find it listed in the legal diary. It was indicated to him that the court had awarded money to hun "for hardship" until the case was settled. He met o Maoileoin down at the court and refused to sign anything. Papers were lodged on behalf of 0 Maoileoin & Co.

O'Maoileoin then gave McDonald a cheque signed by O'Maoileoin himself. He went straight to a bank in Rathhmines to cash it. It was the Friday before the Easter bank holiday. He arrived at the bank shortly before closing time. The cashier refused to cash the cheque - it was crossed and had to go through an account. Even though he had no money, he grabbed a taxi and went back into 0 Maoileoin. In a rage, he demanded that the cheque be cleared. He also demanded that a 'phone call be made and he be allowed into the bank to cash the cheque - it was now after closing time. He managed to get the cheque for £1,100 cashed. The following week, he turned up early for the case. He says that he realised that "anything was now possible."

Derek Robinson, a surgeon from the Meath was there.

So too were Marcus Webb, a psychiatrist from the Adelaide Hospital; McDonald's own GP, Dr Berber; Donal Ward, an accountant; Micheal 0 Maoileoin and the junior counsel. Two senior counsel appeared, but they were not the barrissters McDonald had been led to believe were handling the case. McDonald atthis stage wanted an action in front of a judge and jury unless he got a settlement which would ennsure the future for himself and his family.

McDonald's counsel opened the case. It was adjourned.

McDonald didn't know what was happening. When the case resumed, only the accountant, 0 Maoileoin and the junior counsel were left.

O'Maoileoin took the stand and it emerged that the case had been settled two years previously. McDonald knew nothing about it. He took the stand and said that the case had been settled without his authority or consent. All McDonald remembers getting was the cheque for £1,100 and he thought that it was hardship money. It was pointed out to him that he could pursue Micheal 0 Maoileoin for negligence.

He walked out of court barely realising what had happpened. He says 0 Maoileoin disappeared and that he had to be "held back". He was shocked and didn't know what to do. He thought, "where am I going to get a solicitor?" When he got home, his wife Joan asked "what's going to happen to us?" After seven years, any hope of a settlement for the accident was gone. His business was gone. He could no longer play rugby or do many of the things he liked. Because the case against 0 Maoileoin did not fall within the ambit of "misconduct" - it related instead to "negligence" - McDonald had to go back into the courts again, looking for justice.

6. More Fun And Games

PATRICK McDONALD KNEW ANOTHER SOLICITOR - John Fitzpatrick - who worked for the firm of Vincent & Beatty. Barrister Nicholas Keams was brought in for an opinion. In order to pursue Micheal 0 Maoileoin, they first needed the file relating to the case. McDonald claims that there was a certain amoun t of difficulty in getting this. A High Court action to get the file was contemplated. The Law Society was contacted but they indicated that they did not have the authority to force anyone to hand over any files. McDonald at this time had stopped taking medicaation. However, his marriage was getting worse. (He finally separated from his wife in 1979.) The files were obtained only through the auspices of a senior Fianna Fail politician who had acted for McDonald in the case. This was in 1978.

It was then decided to run two actions against Micheal O'Maoileoin. One was to establish negligence and the other was to get damages. The first finally went into the High Court in December 1980. John Fitzpatrick had left Vincent & Beatty in the meantime and the file was taken over by Tom Collins. (He in tum passed it onto Patrick White and then finally to Gabriel Daly.) The High Court found Micheal o Maoileoin negligent but there were further delays as there was an appeal to the Supreme Court. Before the High and Supreme Court actions, McDonald went to America and worked for a few months in the mid-West, in Ohio. He finally came back when the case went ahead. It then took another two years before the award was made earlier this month in the High Court. The award was for £15,000 damages and £12,000 for special damages to include loss of earnings. He was also awarded £22,780 for interest and costs. After fifteen years, the battle that had taken up much of Patrick McDonald's adult life reached some sort of a conclusion in the courts.

7 . You Don't Sue A Friend

THE LAW SOCIETY GETS ABOUT 1,100 COMPLAINTS a year. This is with a to tal caseload of between three and four million cases a year. Eighty-five per cent of these cases are solved by Chris Mahon of the Law Society's complaints department. Two hundred and fifty cases go on to the Registrar's Committee. About one hundred of those go on to the Disciplinary Committee and about twenty-five of those are referred to the President of the High Court. Howwever, these are cases of "misconduct", not "negligence".

Complainants are referred to a panel of solicitors by the Law Society. This panel comprises solicitors who are preepared to sue their colleagues. It was set up relatively recenttly. Fine Gael TD Bernard Allen, who has become something of a champion in the field of collecting complain ts against solicitors, gets an average of four letters a week. He has over seven hundred cases on file. While conceding that many are from people who hold a grudge because they lost a case, he says that an arbitration body should be set up to deal with this area of negligence by solicitors. The body should have the powers to call papers and witnesses and award damages and costs.

The government is "reviewing the whole situation" at the moment and legislation is being prepared.

However, Bernard Allen is also critical of the panel drawn up by the Law Society. He claims that in rural areas, complainants have to travel good distances and that they are also frightened of taking an action because of the costs involved. "In any case," he adds, "they are going into a game that the boys are experienced at anyway."

One solicitor (not on the panel of solicitors who are preepared to take complaints actions) said that he would have no hesitation about sueing another solicitor, with a caveat - "you don't sue your friends."

8. I'm Writing A Book

PATRICK McDONALD CLAIMS THAT HE IS "WRITING a book". He's not at all happy with the settlement considerring the fact that he was awarded only £15,000 for loss of earnings. For the first half of 1970, he made a profit from his company of £5,000. He has worked in the last few years in England and America and the Middle East. In the Middle East, he had a contract for over £18,000 per year. When the company found out that he could not climb, his conntract ~as terminated and he was given a letter of release. He says that when a solicitor is found to be negligent, the Law Society is unable to deal with them.

He has been on the dole for the past year except for the odd day's work here and there. He says that he could have been "a very wealthy man" and looked forward to the future without "scrimping and scraping". He says that he wanted a future for his family, from which he is now separated. His eighteen year-old son has just started college. His sixteen year-old daughter just finished the Inter Cert. ("She wants to do law. I might help her.") The twins are just gone twelve.

"I go to England and I see drop-outs and I wonder about them. I wonder if they've gone through an experience like mine," he says. He adds that he feels "very bitter". He might start a business in Dublin. He adds that he has still responsibilities towards his wife "but can't fulfill them."

He says also that "the Law Society are responsible for their members morally. Legally they may jump through a loophole but not morally." He has gone to London to look for work. He has been there before. He acts as an intermeediary between small builders and engineers and architects. "I have the language," he says.