Pensioner must pay costs of failed symphysiotomy appeal

An elderly woman has been ordered to pay a Dublin maternity hospital’s legal costs of her failed appeal alleging a symphysiotomy carried out on her in 1963, 12 days before her first baby was born, was unjustified.

While all three members of the Court of Appeal had great admiration for the woman (77) who has lead "a tough life by any standards", "tea and sympathy" cannot get past the normal rule costs go to the winning side, Mr Justice Michael Peart said.

Lawyers for the woman had not shown the necessary special circumstances arose that entitled the court not to apply the normal rule, he held.

Earlier, Ms Justice Mary Irvine, in addressing arguments by Ciaran Craven that the court should take into account the disparity of resources between the woman and the hospital, said the taxpayer ultimately faced costs in such cases.

There is no limitless “slush fund” of public monies available for unsuccessful plaintiffs who sue State-funded bodies, the judge said.

After the woman’s appeal over the High Court’s rejection of her case was dismissed in October by the Court of Appeal, the case returned to the three judge appeal court today for costs issues to be decided.

The court only had to decide liability for the costs of the appeal because the hospital had not appealed the High Court ruling making no order for costs in that court, with the effect each side paid their own costs there.

Special factors

Emily Egan SC, for the hospital, said there were no special factors not to apply the normal costs rule and her client should get its costs.

Opposing that application, Mr Craven argued the appeal court’s judgment addressed issues of general public importance including the meaning of a “general and approved practice”.

He also noted criticism of the practice of symphysiotomy and urged the court to take into account the woman’s age and inability to meet a bill for costs.

The woman has worked all her life and still works about 15 hours weekly but that, and the old age pension, are her only income, he said.

Giving the court’s ruling, Mr Justice Peart said it was argued all the points Mr Craven had identified should be looked at cumulatively and not individually.

The court was satisfied none of the points raised were individually sufficient to allow the court depart from the normal rule on costs, he said.

The court has great sympathy and admiration for the woman over the way in which she has lead “a tough life by any standards” and is still working at her age, he said. “We can express admiration but tea and sympathy is not enough to get her past the rules.”

Test case

The woman’s case was regarded as a test case for about 30 actions over symphysiotomies but the appeal court stressed in its judgment last October each case must be decided on its own particular circumstances.

The procedure was carried out rarely, as an alternative to Caesarean section, from the mid 1940s to mid 1960s in the three Dublin maternity hospitals to address “disproportion” (where the baby is considered likely to be too big to pass through the mother’s pelvis). It involved partly cutting fibres joining the pubic bones to increase pelvic capacity with a view to facilitating vaginal delivery.

The woman claimed her antenatal symphysiotomy, done without a trial of labour, was done without her knowledge, was unjustified and she suffered lifelong consequences, including incontinence, back pain and mental health difficulties.

The Court of Appeal said this type of symphysiotomy had long since been abandoned “for good reason”. However, by 1963 standards, and the woman’s “very particular” circumstances including a “high probability” of obstructed labour, there was credible evidence she had not established this symphysiotomy could never, in any circumstances, have been justified, it ruled.