Appeal 147/2012

IpsofactoJ.com: International Cases [2012] Part 7 Case 6 [SCIre]


SUPREME COURT OF IRELAND

Coram

Eithne McQuillan

- vs -

Olivia Kearney

Denham CJ

Hardiman J

Fennelly J

Clarke J

MacMenamin J

11 JULY 2012


Judgment

Justice John MacMenamin

  1. This appeal is bought against the judgment and order of The High Court, (Ryan J.), delivered on 23rd day of March 2012. The proceedings arise from a symphysiotomy procedure, which was carried out on the plaintiff (Mrs. Kearney) on the 17th October 1969, when she was just 18 of age, and when her first child, Martin Kearney, had just been delivered by caesarean section. Mrs. Kearney had come under the care of Dr. Connolly, a consultant at Our Lady of Lourdes Hospital Drogheda Co. Louth. The first defendant is the nominated representative of the hospital for this litigation. The case against the second named defendant was struck out prior to the hearing. The plaintiff’s case is that, through Dr. Connolly, the hospital was negligent in assessing the need for the symphysiotomy and that the operation was entirely unjustified. The plaintiff succeeded in the claim at first instance. The decision of the High Court was to award the plaintiff a total sum in general damages of €450,000. Both liability and quantum are in issue in the appeal. From the outset, a primary difficulty in this case was the lapse of time which occurred between the procedure itself and the issuing of proceedings much later, on 11th May 2004. The plaintiff’s case was that she was unaware of all this until the year 2002. In that year, she heard a radio broadcast on the subject, and realised that Dr. Connolly must have carried out a symphysiotomy on her, giving rise to the symptoms described in more detail later in this judgment. I would emphasise that the decision in this appeal is based on the evidence adduced in this particular decision.

  2. The procedural background to the case

  3. By notice of motion dated 23rd June 2005, the first defendant sought an order preventing Mrs. Kearney’s claim from proceeding further by reason of inordinate and inexcusable delay. The defendant claimed insurmountable prejudice through the unavailability of witnesses. On the basis of the pleadings, the evidence, and the submissions made in the High Court, the defendant succeeded in that application and the case against the plaintiff was dismissed. An appeal against that decision was heard by this court, (Hardiman, Fennelly, and Macken JJ.) on 25th March 2010. The defendants continued to assert prejudice as a bar to the claim proceeding. They again pointed out that this arose mainly through potential witnesses who could not testify, especially Dr. Connolly himself, who died in the year 2000. But it emerged during the appeal that the claim could be reformulated; that the true issue to be determined was as to the justifiability of the procedure even on the basis of the standards prevailing in obstetrics at the time of the operation in 1969. In the appeal against the High Court order dismissing the claim for inordinate delay, counsel for the plaintiff Mr. Turlough O’Donnell S.C. relied on a medical report of Mr. Roger Clements an English gynaecologist, for this reformulation. Mr. Clements’ view was that, the procedure was unjustified and improper, even having regard to the conditions, circumstances, and standards prevailing in Ireland in 1969. He was supported by standard medical textbooks which condemned the procedure outright.

  4. In the appeal Mr. O’Donnell S.C. conceded that the claim would be defeated if the defendant could establish any circumstances in which, in the circumstances prevailing in 1969, and in the circumstances of this particular case, a symphysiotomy could have been justified by a consultant gynaecologist. This would allow the defendant to defeat the plaintiff’s claim if the procedure could have been justified for the reason just outlined. The defendant would not be prejudiced simply because Dr. Connolly and his colleagues could not be witnesses in the case.

  5. Persuaded by this argument, this court concluded that no remaining prejudice accrued to the defendant, and the substantive claim was permitted to proceed before Ryan J. in the High Court. (See Kearney v McQuillan [2010] I.R. 576).

  6. As a consequence of this process, the defendant still had available the defence suggested by the second of the principles laid down by Finlay CJ in Dunne (An infant) v National Maternity Hospital [1989] I.R. 91 at p. 109 to the following effect:

  7. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course which he did take was one which no medical practitioner of like specialisation and skill would have followed had he been taking the ordinary care required from a person of his qualification.

  8. Counsel for the appellant, Mr. Charles Meenan S.C. relied strongly on this principle in the trial before the High Court and in this appeal. He submitted the learned trial judge had erred in failing to have regard to evidence which rebutted to the plaintiff’s claim, and that the judge had erred in law in making findings outside the parameters which had been set by this court for the trial.

  9. Background to the procedure

  10. In the sections which follow, there are a number of medical terms and abbreviations. It may be helpful to deal with some of these now.

    Some medical terms

  11. A symphysis is a joint in which the bones are separated by fibro-cartilage which minimises movement and makes the bony structure rigid. A cartilage is a dense connective tissue composed of a matrix of cells, closely interconnected. A fibro-cartilage is a type of strong cartilage in which there are dense bundles of fibres in the matrix. The pubic symphysis is the joint between the pubic bones of the pelvis. A symphysiotomy, therefore, is the operation of cutting through the front of the pelvis at the pubic-symphysis in order to enlarge the diameter of the pelvis and to allow delivery of a baby whose head is too large to pass thorough the pelvic opening in the mother.

  12. The purpose of the procedure

  13. Symphysiotomy was developed to deal with what is termed “ obstructed labour”, what was seen by clinicians as “absolute disproportion”, that is where the baby’s head is too large to pass through the mother’s pelvis to allow for birth. Thus the issue for determination by the High Court on the plenary hearing was whether there was evidence which might have justified Dr. Connolly in adopting the procedure in 1969. Put in another way, the question was: were there any medical indications of obstruction to the labour or absolute disproportion? But behind this there lay a further dimension to the defendants case: that the procedure was medically warranted, and could be ethically justified by reference the thinking of a group of obstetricians of “like specialisation and skill” whose views then held sway in some Dublin teaching hospitals and some other Irish maternity units observing a Roman Catholic ethos. Our Lady of Lourdes Hospital Drogheda was one such hospital. It was contended that Dr. Connolly was a strong adherent of that school of thinking and, that, in this, he reflected the ethos of the hospital and of other consultants at the time. The reformulation required that the decision to perform the procedure be judged only by the standards of the time and by reference to the skill and judgments of practitioners of the same description and status as Dr. Connolly.

  14. The defendant’s case on liability

  15. The defendant’s case on liability may be conveniently considered under these interconnected headings therefore. Mr. Meenan S.C. contended that in accordance with the principles identified in Dunne v National Maternity Hospital the procedure was itself medically justified, and that it was in accordance with then current thinking among clinicians who shared Dr. Connolly’s viewpoint. He submitted that there had been at the time a divergence of views between English and Irish obstetricians as to when the procedure was justified. This defence relied on articles and papers written by prominent Irish obstetricians of that era, including Dr. Arthur Barry and a Professor McVeigh. These views were published in the Irish Journal of Medical Science, and spoken of at international medical conferences.

  16. What the ‘proponents’ of symphysiotomy believed

  17. Those who then supported the procedure in certain circumstances believed it could be justified in order to avoid the possibility of successive caesarean sections. Their view was that a risk of disproportion between a baby’s head and a mother’s pelvis on one occasion might then give rise to the possibility of a mother considering caesarean sections in successive subsequent pregnancies. The consequence of this view was that, ultimately, repeated incisions and scars could give rise to difficulties in carrying out many caesarean sections in the same area of the mother’s body at a time when there were large families. A woman’s mind might therefore turn to the possibility of using forms of artificial contraception or sterilisation, contrary to then current natural law teachings. The group believed that that symphysiotomy could be justifiable in a broader range of circumstances than clinicians in other ‘first world countries’. It is important to be clear that the evidence in the case did not go so far as to suggest that, even in 1969, this view was shared in all Irish hospitals or by all clinicians. At times, the defence case seemed to suggest there was a then general ‘Irish view’ shared by all practitioners in the State. The evidence did not establish any such general acceptance, whether on the basis of religious belief or otherwise.

  18. But as counsel for the appellant/defendant pointed out, for present purposes one must strongly guard against any “retrospective” approach. The liability issues here cannot be viewed ‘unhistorically’ that is, by judging decisions and conduct with the benefit of hindsight. The previous judgment of this court clearly indicated what were to be the evidential parameters of the plenary hearing. Mr. Meenan S.C. submitted that the views apparently espoused by Dr. Connolly and others must be judged in the context of the time, and that one must not super-impose today’s medical views on those apparently held by a group of clinicians in another era. Dr. Declan Meagher a consultant obstetrician who has had a long and distinguished career, was called by the defence to give expert evidence. He himself described Dr. Connolly as having been an “enthusiast” for symphysiotomy. In fairness, Dr. Meagher himself did not at any time share these views.

  19. In the course of the trial, Dr. Meagher analysed the procedure carried out in this case. For his part, he accepted that a medical justification had to exist to warrant a symphysiotomy. It may be justified in a very narrow range of circumstances. He inferred that the only possible explanation for the operation would have been on a finding of “absolute disproportion”, which means that the baby’s head was simply too large to pass through the mother’s pelvis on delivery.

  20. Further medical terms referred to in the case

  21. In further considering the evidence in general, and the medical notes in particular, it will be helpful to know that the term occiput refers to the back of the baby’s head. Dr. Connolly’s operation note, made at the time, indicated that the emergency lower segment caesarean section was carried out for what was termed “POP and failure in progress”. ‘POP’ means ‘persistent occiput posterior’; that is a reverse presentation with the baby’s face facing towards the mother’s back while the head was flexed backwards in the womb. Dr. Meagher pointed out that there was inadequate cervical activity. If there had been normal progress of labour, contractions of the cervix might themselves have been sufficient to alter the baby’s position to a presentation conducive to normal delivery. As matters stood prior to the caesarean section, the baby was in a reverse position in the womb which made natural delivery impossible and labour was not progressing. As a result of these two problems, Dr. Meagher said that Dr. Connolly decided to deliver the baby by caesarean section. The baby was born at 12.10 a.m. on 19th October 1969 after a very lengthy labour of 24 hours. Shortly after birth, he had some breathing difficulties and was transferred to the special care unit.

  22. A symphysiotomy “on the way out” is the medical shorthand for the procedure being carried out after a caesarean section. At the end of his operation note, after describing the caesarean section, Dr. Connolly wrote that he had carried out a “symphysiotomy before closure”. These words were underlined. The procedure was therefore carried out prior to closure of the incision which had been made for the caesarean section. But Dr. Connolly chose to carry out this symphysiotomy “on the way out”, that is after the caesarean section had been completed and the baby delivered. The question before the High Court therefore, was whether, in those circumstances the symphysiotomy procedure would conceivably have been justified?

  23. Historical Background

  24. The evidence established that symphysiotomy was introduced in the late 18th century. The purpose of the operation, which is performed at the end of labour, is to increase the diameters of the mother’s pelvis so as to release the baby. It was introduced in an age before caesarean section became possible, and at a time when the only alternative course might involve a destructive operation to protect the life of the mother. Foreseeable risks in the procedure were urinary tract infection, incontinence, and loco-motor disability. The evidence was that the popularity of the operation waned in the early 19th century, but thereafter interest revived in certain quarters including in some Irish hospitals. The evidence was that the procedure ceased being used, even in Drogheda, by the year 1971 (two years after the procedure in question here). It appears to have fallen out of favour in the National Maternity Hospital rather earlier, in the mid 1960s.

  25. The defendant’s case was that, even at the time of this operation in 1969, there remained adherents of this school who would allow for the procedure in certain circumstances, and that Dr. Connolly was one such clinician.

  26. The symphysiotomy procedure

  27. To fully understand the ultimate impact of the information which Mrs. Kearney received in 2002, it is necessary to describe the procedure and its potential foreseeable consequences in a little more detail. A clinician enlarges the pelvis by dividing the symphysis pubis. The plate of this fibro cartilage in the middle of that joint is generally identified with a needle left in position as a guide. A stab-incision is then made with a solid blade scalpel through the central plate below the upper border of the symphysis. This incision is extended downwards so as to divide the lower half of the symphysis and arcuate ligament, stopping short of the perineal membrane, and then upwards to complete the trans-section of the joint. The separation should be limited. It was thought that this process enlarged the capacity of the pelvis by up to 25% in the transverse diameter. In normal circumstances, when this procedure was carried out during labour for breach delivery. the head of the baby usually started to descend, at which point it was essential to perform an episiotomy in order to avoid stretching of the anterior vaginal wall and other sequelae including a compromise of the urethra.

  28. But among the risks of the operation are sepsis, and haematomas at the site of the incision. There may be injuries of the urethra and bladder neck. Stress incontinence was found to be a fairly common sequela, though often regained without specific treatment. There was the risk of diminution in locomotor function through compromise of the sacroiliac. But here Dr. Connolly opted to carry out this procedure, not to facilitate the birth, but after the baby’s delivery.

  29. Dr. Meagher inferred from the notes that the only possible explanation for Dr. Connolly’s decision would have to have been a finding of disproportion of the baby’s skull in relation to the pelvis.

  30. Dr. Meagher referred to two indicators which he thought might possibly have indicated such disproportion. The operation notes referred what is termed “caput”. This means a temporary swelling of the soft parts of the baby’s head due to compression by the muscles at the neck of the uterus. The notes, also referred to ”moulding”, which means changes in the shape of the infant’s head during labour, brought about by pressures to which it is subjected when proceeding through the birth canal.

  31. The learned High Court judge heard evidence from Mr. Roger Clements, and Dr. Gareth Thomas, two consultant gynaecologists, who both testified strongly that there was no justification whatever for symphysiotomy in this case and that there were no indications of any form of disproportion which would have warranted the procedure, even by the standards of the time. The baby had been delivered by caesarean section.

  32. The judge observed that the medical records relating to the case did not provide any evidence of any medical justification for the procedure carried out. Critically, he found the evidence showed that there was no indication of obstruction or pelvic deformity. In fact, to the contrary, he found that the caesarean was carried out on the failure to progress the pregnancy and in difficulties in presentation of the baby’s head. There was no evidence in the medical notes, or anywhere else, of disproportion. Moreover he found that there was not even any slight indication in the notes to suggest absolute disproportion

  33. The judge held that Dr. Connolly embarked on an elective procedure. By the time the symphysiotomy was carried out baby Martin Kearney had already been delivered. He found there could be no justification for the carrying out of the procedure in order to facilitate the baby’s birth. In the absence of such absolute disproportion there was no indication that a symphysiotomy was justified at all.

  34. But the judge’s findings went considerably further. He found that there was no evidence at all to indicate that Mrs. Kearney might, in the future, have encountered disproportion in the case of any future pregnancy. It established that Dr. Connolly encountered simply what the notes showed, a failure in this pregnancy to progress, and OP presentation. But the evidence also established that a baby in that attitude is rare in a second or subsequent pregnancy. It is a phenomenon of first labour. On the basis of the evidence such an eventuality was unlikely to happen again.

  35. On this basis, the judge found that it was not possible for Dr. Connolly to have diagnosed any possible need for future caesarean operations, or, for him to infer that in a future pregnancy, the plaintiff would not go to full normal delivery. In fact, an x-ray carried out on the plaintiff’s pelvis on the 28th October 1969 was entirely normal. The procedure therefore was entirely unwarranted. It lacked any objective medical basis.

  36. The learned trial judge held that, even accepting that there such a school of thought which might have justified the procedure in certain circumstances, the question nonetheless arose as to whether, in Mrs. Kearney’s case there was actual disproportion. Dr. Meagher had testified that some features of the case raised the possibility of disproportion. However the judge found that, even on Dr. Meagher’s own testimony, the evidence was insufficient to furnish any basis for such a diagnosis. Relative disproportion would be an insufficient basis for the procedure in the circumstances of the case.

  37. The judge noted that the hospital maintained a system of annual reports of clinical outcomes. In the annual clinical report of the hospital for 1969-70 there was a difference between the manner in which the symphysiotomy procedure was recorded in Mrs. Kearney’s case, and the five other cases where it was performed in that year. In each of the others there had been reference to “obstructed labour due to disproportion”. There was no reference to disproportion in Mrs. Kearney’s case. In the 1970 hospital clinical report, just one year after the operation we are considering, there is the following quote under the heading “Symphisiotomies” as being:-

  38. .... now nearly always done in the second stage of labour and never electively or during closure of the abdominal wound after a caesarean section.

    [my emphasis added]

    The stark contrast between this definitive statement of principle, and what happened in this case, requires no additional comment.

  39. Counsel for the plaintiff Mr. O’Donnell S.C. referred Dr. Meagher to this clinical report for the hospital. It referred to Mrs. Kearney under a reference number “9031”. It said “9031-incoordinate uterine action. Remarks none”. The trial judge pointed out that Dr. Meagher had accepted that disproportion was a quite different thing to incoordinate uterine action. What was significant was not merely the description of Mrs. Kearney’s operation, and the reason for it, but, in addition, the contrast between the reported information about the five other women who had had caesarean sections during that relevant period, and what was stated in relation to Mrs. Kearney. These five other cases referred, in various ways, to “disproportion”. Despite objections, the trial judge correctly admitted this material as being prima facie evidence of its contents. There was no reason to suppose that the information on which these comments were made had not been properly compiled in the fulfilment of a duty. The introduction to that report was signed by Dr. Connolly himself.

  40. As outlined earlier, counsel for the appellant argued in this appeal that the evidence was sufficient to bring Dr. Connolly’s decision to carry out the procedure within the Dunne v National Maternity Hospital exception, and that the trial judge had been correct in finding negligence. He said the judge’s findings went outside the parameters set by the court. But in the light of these facts as found, the learned trial judge concluded that there was no evidence sufficient to justify the carrying out of the procedure in the instant case. I entirely agree with this conclusion. The learned trial judge’s decision was justified on the facts he found. On the basis of those facts it was proper for him to conclude that no other practitioner of equal specialist knowledge or of equal status or skill would have carried out the procedure in the circumstances of Mrs. Kearney’s case (see Dunne v National Maternity Hospital quoted earlier). Thus the first limb of the defence fails.

  41. It further follows that, in performing this symphysiotomy in the absence of sufficient indications, Dr. Connolly engaged in a practice which no other competent medical practitioner in his area of specialisation and skill would have followed, if taking ordinary care. The evidence did not establish that the practice of symphysiotomy was sufficiently general by 1969, or generally approved by colleagues of a similar specialisation and skill to warrant this operation. The position was, rather, that there were adherents of a school of thought which considered it justifiable in certain circumstances. But none of those circumstances were present here. There was no indication of pelvic deformity. There was no indication of absolute disproportion. Thus, the procedure carried out by Dr. Connolly in this case was deeply and fundamentally flawed in a way which should have been obvious to any doctor of similar skill or specialisation. The second aspect of the defence also fails.

  42. Although the threshold of proof set for the defendant was relatively low, that threshold was not met. Consequently the learned trial judge was correct in reaching his conclusion on this issue. It follows therefore that the plaintiff was entitled to succeed fully on the issue of liability. In the appeal, the defence, correctly, did not pursue with any vigour the learned trial judge’s finding that the plaintiff’s cause of action was not statute barred.. There is no aspect of the High Court judgment that falls outside the parameters laid down by this court in the earlier decision.

  43. The award of damages

  44. I then turn to the level of the award. The learned trial judge awarded a total sum in general damages of €450,000 dividing as to €300,000 for pain and suffering to date and €150,000 for pain and suffering into to the future.

  45. In a different context, Denham J. remarked in M.M. v. S.N. (damages) [2005] 4 I.R. 461, that one must be conscious that in one sense, no award will undo the damage done to the plaintiff’s life. That observation is pertinent here. An award of damages is an imperfect mode of compensation. It is a “recognition of the injuries and damages must reflect the change in circumstances of the plaintiff”. An award of damages must be fair to both the plaintiff and defendant. It must be proportionate to social conditions, bearing in mind the common good. It should logically be situated within the legal scheme of awards made for other personal injuries. All these elements fall to be “balanced weighed and determined” (see M.N. v. S.M. p. 474; [2005] I.R. 474; see also Sinnott v. Quinnsworth [1984] ILRM 523 O’Higgins C.J. at p. 532. It is important in this context to recollect, particularly at this time, those criteria of social conditions and common good. These are not just empty words. The resources of society are finite. Each award of damages for personal injuries in the courts may be reflected in increased insurance costs, taxation, or, perhaps, a reduction in some social service. We are living in a time where ordinary people often find it difficult to make ends meet. The weight to be given to each of these factors must always be a consideration in the balance.

  46. Against this, one must consider the human situation of a young 18 year old mother who entrusted her own care, and that of her child, to Dr. Connolly. The Constitution identifies rights which are to be protected and vindicated because they belong to each human person because of their very humanity. Among the values which have been recognised by the Courts are human dignity, bodily integrity, and autonomy, that is the capacity to make informed decisions affecting one’s own health. The duty to protect those rights is not confined to the Courts. Each health professional is, and was always, under a similar duty. Although the finding of the Court is founded in negligence, what happened here was a betrayal of trust; it was an invasion and violation of the rights just identified; it was the gravest kind of negligence. The determinations of both the High Court and this Court on the liability issue, on the facts of this particular case, are a vindication of Mrs. Kearney’s decision to pursue matters. As even the comparisons between Mrs. Kearney’s case and others in the hospital show, however, the circumstances of each case before the courts may differ, even if there are apparent similarities between cases on a superficial analysis

  47. In M.N. v S.N., Denham J. speaking in the year 2005, stated that she was satisfied that the equivalent figure to what is called the “general damages cap” of £150,000 identified in Sinnott v. Quinnsworth would be £300,000. She held that the 2005 equivalent to the figure of £150,000 was “in excess of €300,000”.

  48. Recent decisions in the High Court indicate that the figure of €450,000 is now used as a guide to a maximum award in general damages for a person whose life has been effectively ruined ; (see the very comprehensive review of this subject in Maggie Yang Yun v MIB The High Court, Quirke J. 17th July 2009 IESC 318; and, in a slightly different context R. v. Minister for Health and Children, The High Court, Unreported, Irvine J. 2011 where the effective award in general damages was €500,000). It is unnecessary for these issues to be addressed in detail here however. Suffice it to say there have been cases in the High Court where a higher sum than €450,000 has been allowed for general damages.

  49. How the plaintiff was affected by this symphysiotomy procedure

  50. The defendants did not call evidence on the damages issue. Mrs. Kearney is now aged 60 years. As a result of the procedure, she suffered profound ongoing pain. She had to take strong painkillers and frequent injections. She was bandaged from her waist to her pelvic area for days after the operation. She was unable to get out of bed until the sixth day after her child’s birth. Only then was her husband able to bring her in a wheelchair to see Martin, who was himself detained in hospital for six weeks after delivery. Mrs. Kearney could not get up from her home to the hospital to see him. She was in bed for the first three months after the birth. Going to the toilet caused her great pain. Even the act of getting out of bed to go to the bathroom or to the kitchen was a source of pain to her. She had to take large quantities of painkillers. She was unable to look after her son Martin when he eventually came home. She and her husband and their new born child had to stay with Mrs. Kearney’s mother who took on most of the care of the baby. Later, the plaintiff suffered continuous back pain, incontinence, and depression. She felt she did not bond with the baby because of the pain. She had trouble with her legs and feet. She had to have various treatments for these problems over the years. All of these were the consequences of the procedure.

  51. The problem of incontinence became a constant in the plaintiff’s life. She lived with it for fear of having to be intimately examined again. She suffered permanent backache. She dealt with this by taking over-the-counter medication. Even now she still takes painkillers. Sometimes her husband injected her with prescribed painkilling drugs. Mrs. Kearney felt guilty about what had happened. While this was a psychological consequence of what happened, it is clear that the entire fault for what occurred here lay with Dr. Connolly, and with no one else. Mrs. Kearney bears no responsibility for what happened. What was done to her was entirely unjustified and unwarranted. It was wrong even by the standards of time. While the liability must be assessed by those standards; the damages issue, that is, the effect on Mrs. Kearney, may be seen with the benefit of hindsight.

  52. It is very difficult now to understand the thinking where some obstetricians considered it appropriate to embark on this highly invasive and painful procedure so as to avoid the possibility of successive caesarean sections which might perhaps result in a patient opting for sterilisation. By today’s standards the reasoning behind such an approach can only be seen as almost unfathomable. But even by reference to the standards then current, the procedure which Dr. Connolly chose to carry out on Mrs. Kearney had no justification whatever. She was a young 18 year old woman unconscious and anaesthetised. She had already given birth to her child by way of caesarean section. In general the only possible rationale for the symphysiotomy procedure is in relation to absolute disproportion that is a potential risk arising from imminent delivery or, alternatively from future pregnancies. .For many years past it has been almost entirely superseded by Caesarean sections which can now be carried out safely on a repeat basis.. But here, Mrs. Kearney’s pregnancy had just been completed and her baby had been safely delivered. There was no rationale for what occurred.

  53. The plaintiff’s own hopes had been for a large family. She had wanted more children, but after this event could not face the prospect of further pregnancies. She found sexual relations difficult. She became depressed and anxious. She reproached herself that she could not give a brother or sister to her son. Mrs. Kearney undoubtedly suffered serious trauma in 2002 when she finally established she had had an unnecessary symphysiotomy. At first she was relieved, because at last she understood the source of her medical problems. She thought she had been going mad with imaginary pains and nobody would believe her. After the broadcast, she could identify at last what had caused the backache and incontinence.

  54. In evidence, her psychiatrist, Dr. McCormack, testified that there were two phases to the plaintiff’s symptoms from 2002 onwards. The initial phase was one of realisation, accompanied by a range of emotional feelings described as being ones of acute stress. This was followed by the development of a depressive disorder. The consequences of this were very serious. It was difficult for the plaintiff to leave the house on her own. She was nervous and afraid of people. She experienced a profound sense of shock when she read her own medical file. One of her first thoughts on reading that file was that she should kill herself. Over the years, what started as a profound shock became an entrenched feeling, including a sense of responsibility for allowing the operation to happen.

  55. Dr. McCormack testified that the plaintiff is dependent on her husband, or on someone else being present. She developed delusional beliefs that someone was out to get her. She had delusions that she might be abducted. She had obsessive symptoms of risk of assault. She developed a neurosis causing her to need to wash herself many times a day. All this was described as being an acute stress disorder arising from her discovery of what had been done to her.

  56. Even in a case as distressing as this, even where the issues are very emotive, it is the duty of a court to do justice to both sides. It is important to give weight to the totality of the evidence. What follows is in no sense a reflection on Mrs. Kearney’s truthfulness or her credibility as a witness. Her testimony was understated, if anything. But it must be said that there was a contrast between her own entirely credible evidence about the effects of these traumatic events on her, and the evidence of Dr .McCormack about these effects. One can readily understand why the learned trial judge laid emphasis on Dr. McCormack’s evidence. However, despite the traumatic events which befell her, in fact before the year 2002 the plaintiff carried on what in many senses was a relatively normal life despite her medical problems.

  57. Having left school aged 15 years, she looked after her mother for a while. Then she became involved in assembly work in a large electrical factory. She was ultimately promoted into the office in that factory. Later still she worked in the personnel department engaged in recruitment and interviewing. In total she worked for a period of some 25 years.

  58. As the learned trial judge himself pointed out, there was, therefore, a real distinction between Dr. McCormack’s description of the plaintiff’s symptoms, and her own description as to the main events in her own life. One cannot underestimate the devastating effects of the procedure which was carried out upon on this unsuspecting young woman. The claim, as it was ultimately presented to the High Court, was one simply in negligence. No claim was brought in assault, for the reasons considered earlier. It was necessary therefore to balance the psychiatric evidence against the objectively discernible facts regarding the plaintiff’s own life in accordance with the principles described earlier. I think that, in just this one aspect, the High Court judgment may be legally faulted, and thus I am unable to conclude that the level of the award in damages was right in law.

  59. In doing justice in the assessment of damages, a court must have regard to the wide range of cases which may come before it. Such cases may involve plaintiffs who have sustained catastrophic physical injuries such as tetraplegia or other extensive neurological damage with devastating psychological consequences. Such cases may involve persons with most serious brain damage who cannot move any part of their body, but who nonetheless have insight into their condition. In such instances there have indeed been awards of general damages for past and future pain and suffering totalling €450,000. But it must be borne in mind such awards, in general damages, have been made in circumstances where such persons have sustained injuries that are, truly, catastrophic. In other such cases, the physical injuries involved may have been grossly deforming, or the outcome of negligence may have been cerebral palsy. Associated physical and psychological consequences may involve a total inability to live independently, to work, or to engage in any form of meaningful social life.

  60. By way of illustration of the difference here, while Dr. McCormack appears to have suggested that the plaintiff was subsequently entirely unable to lead an independent life, she nonetheless had previously worked for a period of some 25 years. It is clear that the full discovery of what was done has had a serious impact on her. The necessity for maintaining a balance in assessing damages is not in any way to diminish the impact of the plaintiff’s physical and psychological hurt. It does not diminish the trauma of the discovery, but there were issues as to the true extent of the very serious psychological symptoms and consequences and as to when they affected the plaintiff. It is necessary to place the award of damages in its true legal context, and within the overall range of the types of injuries with which the courts must unfortunately deal on a day by day basis. I do not think the High Court judgment sufficiently weighed the mitigating factors on the damages issue.

  61. While awards of general damages are frequently and appropriately divided between pain and suffering in the past, and into the future, such a course of action does not appear appropriate on the facts here. A very substantial lapse of time has occurred between the original causative event and the date of this hearing. On the evidence available, this court has now the advantage of having an entire perspective of the nature and duration of the plaintiff’s injuries and their effects over a total period of 33 years. While in no sense underestimating the very serious nature of the injuries, and their effects, I think that they fall short of the highest category of awards just described. Consequently, while upholding the findings of the High Court on liability, I would substitute a total award of €325,000 general damages for both past and future general damages in place of the award in the High Court.


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