The High Court has rejected former Garda Raymond Francis Roche’s claim for compensation for pain and suffering caused by a serious infection in his right knee. The court found that the infection developed independently of a 1999 assault and that the evidence did not establish that the assault was the substantial cause of the infection settling in the knee.
The judgment, delivered by Ms Justice Irvine on 14 December 2011, dealt only with causation and liability for the bacterial infection. The judge said that if Roche had established entitlement to compensation, the court would then hear evidence to determine the amount. It did not reach that stage.
Roche had undergone arthroscopic surgery on his right knee on 16 November 1999. Four days later, while on crutches, he was assaulted by a member of the public and kicked in the knee. He later developed septic arthritis caused by staphylococcus aureus, which led to prolonged treatment, joint replacement, further operations and ultimately fusion of the knee. The judgment said his prognosis was poor and that amputation might be required.
The timing and cause of the infection were disputed. Roche’s general practitioner initially believed bacteria had entered through surgical scars around the time of the assault. At the resumed hearing, however, the applicant’s expert, Professor Muiris Fitzgerald, considered that the infection likely developed in late November 2001. The respondent’s expert, Professor Samuel McConkey, placed it later, probably in August 2002.
Justice Irvine preferred Professor McConkey’s evidence. She found Roche contracted the infection between 5 May and 22 September 2002, most probably in late August. Negative tests in November 2001 and May 2002, along with evidence of gout and other possible causes of knee symptoms, supported that conclusion. The judge said pain before the infection arose could not be attributed to the infection.
Professor Fitzgerald argued that the combined effects of the surgery and assault had left the knee vulnerable to infection. The judge accepted that the knee had vulnerabilities but found there were several possible explanations, including gout, meniscal damage, possible arthritis and chance. The infection entered Roche’s body at least two years after the surgery and assault, and the experts could not say it resulted from the assault.
The judge also rejected an alternative reliance on a statutory provision concerning a “tendency to disease”, finding it did not remove the requirement to prove causation for an injury that had already occurred. She concluded Roche had not proved that the assault substantially caused the infection or its colonisation in the knee. His claim for compensation for the infection’s consequences therefore failed.