26
Four weeks later, Judge Patrick Dowling peered over the top of his spectacles and considered the two solicitors currently taking up space in his courtroom.
“All right, what’s next?” he bellowed to his clerk and Declan gulped.
He had no idea how today was going to go down, but he hoped against hope that the High Court judge was in a good mood. Today was the first major hurdle in Kate’s case and, given everything that was happening to her right now, he was determined that it would herald some good news for a change.
“A Motion to Dismiss in the matter of O’Hara v. Cooper, and same in the counterclaim of Cooper v. O’Hara,” answered the clerk blandly.
The judge riffled through the two motions that sat in front of him and read through the details of the original claim and the reasons behind the requests for dismissal.
“Approach the bench,” he ordered without looking up. “In the matter of O’Hara v. Cooper, what is your reason for requesting dismissal?” He turned his attention to Matt Townsend, and Declan noticed him flicking his eyes ever so quickly to where the defendants’ solicitor sat.
“My client requests dismissal because this case is frivolous and unfounded,” answered Townsend in an even voice. “It cannot be proven that the defendants’ daughter is the reason that the plaintiff’s child became sick. And my client can hardly be held responsible for what the plaintiff has experienced since this unfortunate situation happened.”
Dowling snorted as if he had found something funny. “Interesting point, especially considering your client has decided to file a counterclaim against the plaintiff listing the very same elements.” He looked again at the man sitting at the defendants’ table and was pleased to see his face flush.
At this, Declan felt himself exhale a little. Seemed like the judge wasn’t all that enamored of the Coopers’ pleas.
Townsend opened his mouth to speak and offer a defense of the counterclaim but Dowling had moved on. He clearly believed his observation did not require a response.
“Mr. Roe,” the judge addressed Declan then. “You’re the plaintiff’s solicitor?”
“I am, Judge. And I would request that the original claim proceed, unless the defendants would prefer to settle. We would also request for the counterclaim to be dismissed and the duty of care prima facie to be upheld.”
“Where is your client today?”
“With all due respect, I didn’t believe it was necessary for Ms. O’Hara to be present in court today. She is a single parent and has opted to stay with her daughter, who remains seriously ill in the hospital.” Declan kept a neutral expression on his face, even as he heard Tom Cooper shift in his seat nearby.
“How long has she been in the hospital, Counselor?” inquired the judge.
“Judge, what does that have to do with today’s motion?” interrupted Townsend.
Judge Dowling turned a frosty glare toward the defense table. “I believe I am the one who asks questions in my courtroom, Mr. Townsend. I’ll remind you to speak when you are spoken to.”
There was more rustling from where his client sat. Tom Cooper clearly was not pleased.
“Mr. Roe?” pressed the judge.
“A little over eight weeks,” Declan replied.
“I see. And according to the claims bill, your client is currently on parental leave?”
“Yes, Judge. She has used all paid time off that was available to her, but is now on unpaid leave. Because her daughter has suffered considerable complications directly resulting from the measles virus, it’s unlikely that my client will be able to return to work at the end of the allotted eighteen weeks. Furthermore, my client’s daughter requires special-needs rehabilitative care. In the meantime, my client’s out-of-pocket expenses directly relating to her condition have been extensive, especially while also dealing with loss of income.”
Judge Dowling considered this information. “And why was this child not vaccinated against the disease, Mr. Roe?”
Declan recounted the medical reasons why Rosie could not be vaccinated. The judge then turned his attention to the defense.
“Same question for you, Mr. Townsend.”
Matt Townsend cleared his throat and locked eyes with the judge. “My clients have chosen not to vaccinate their children for personal reasons.” He didn’t elaborate, which caused the judge to raise his eyebrows.
“I’m waiting to hear these personal reasons, Counselor.”
For a moment, there was complete silence in the courtroom, and all eyes turned expectantly to Townsend.
“Judge, my client and his wife did not immunize their children because they distrust the vaccine and believe it may put their children in danger. My client believes—”
But the judge cut him off. “Oh, yes, I am well aware of the conspiracy theories surrounding the MMR vaccine. However, if I remember correctly, those claims have been repeatedly disproven. And the physician, a Dr. Wakefield, I believe, who originally made the claim is no longer allowed to practice medicine, is that not correct?” He didn’t wait for an answer. “So, tell me again why your client’s child had not been vaccinated?”
Townsend cleared his throat. “It is not a legal requirement under Irish law to vaccinate a child,” he said plainly. “My client’s reasoning for such is no less valid as the plaintiff’s reason for not doing so.”
Declan began to speak then, but Dowling again showed he was in charge. “Yet plaintiff’s counsel has explained that Mrs. O’Hara’s reasoning is based on a life-threatening allergy, and the mere fact that said plaintiff is a medical professional means that she must have an appreciation for science.”
Declan had to work hard not to smile. This really was not going well for Townsend, or Cooper, for that matter.
“Judge, I would encourage you to also understand that both children displayed symptoms within days of each other. There is no way to prove which child passed the infection to whom,” pleaded Townsend.
Judge Dowling narrowed his eyes at the lawyer. “But it is my understanding that your client apparently sent her daughter to school aware that she was infectious.”
“Yes, but—”
“And given that the child in question was not vaccinated as per the HSE’s recommended schedule, I would be inclined to agree that a duty of care was indeed owed, not just to the plaintiff, but to the community in general.”
“Judge—”
“Which is also wholly pertinent to the defense’s counterclaim, making it, in my view, seem especially frivolous given your client alleges loss of income, medical expenses, even loss of enjoyment—all arising from the fact that they themselves chose not to protect their own child.”
“Judge, my client did have to take time off of work and he and his family went through considerable distress and worry as their daughter suffered, and obviously the sickness interrupted their lives.”
“All of which could have likely been avoided had your client followed HSE vaccination protocol, could it not?”
With that, Judge Dowling turned his attention back to the paperwork in front of him. He made a considerable show of turning each page while looking at the corresponding solicitor. Finally, he spoke, but by then Declan was all but certain he was about to be delivered a win. Willing himself not to be too presumptuous, he tried to keep his expression composed but still couldn’t fight his inward delight that they’d gotten over hurdle one.
“Mr. Townsend, I am quite frankly appalled that you agreed to file such a counterclaim given your client’s own failure to act in this situation. You are correct; it is not a legal obligation for Irish citizens to vaccinate their children, but, as I see it, if they do not then they must be expected to bear the cost of that risk, and thus owe a reasonable duty of care to the community at large.
“With that, I hereby deny the defense’s Motion to Dismiss O’Hara v. Cooper. And I furthermore grant the plaintiff’s Motion to Dismiss Cooper v. O’Hara. The original Statement of Claim is valid and I find the issues mentioned therein legally sound. This case may progress unless the defense would like to propose settlement at this time.”
It was a statement, but also a question. However, Matt Townsend was still reeling from the early loss he had just been delivered and it caused him to wait a beat too long for Dowling’s standards.
“Mr. Townsend? I’m talking to you.”
He blanched. “Sorry, Judge. No, my client does not wish to propose settlement at this time.”
“Very well. I suggest, Mr. Townsend, you put a bit more thought into how you are going to present your defense in future, as your counterclaim was not only frivolous but hastily thought-out and sloppy.” He pounded his gavel. “Thank you.” He handed the legal filings over to his clerk. “Counselors. You’re dismissed.”
Declan nodded dutifully at the judge and gathered his briefcase.
As he left the courtroom, he couldn’t help but smile at his little victory, and thanked his lucky stars that the other solicitor had been arrogant enough to play directly into his hands by issuing that counterclaim.
No judge was ever going to allow a party who’d declined vaccination by choice to make such a claim. He’d hoped from the outset that this would pave the way for the judge to allow the duty of care prima facie and he’d done just that.
This was the kind of legal maneuvering he’d always been so excited about at university, Declan recalled, a spring in his step as he went outside to call Kate.
Finally, he was getting to flex some muscle and practice the kind of law he’d always dreamed of.
And, in the process, help someone who truly deserved it.