Supreme Court awards aggravated damages for defendants' deliberate concealment of document alterations during litigation.

THE SUPREME COURT

134/04

144/04

Murray CJ

Fennelly J

McCracken J

Between:

David Philp

Plaintiff

AND

Peter Ryan & Bons Secours Hospital Bon Secours Health System

Defendants

Judgment of Mr Justice McCracken delivered the 17th day of December 2004

1. In this judgment I propose to deal only with the question of whether the Plaintiff is entitled to aggravated damages by reason of

the behaviour of the Defendants in the preparation and presentation of their case.

2. In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 the circumstances in which aggravated or exemplary damages

could be awarded was considered by this Court. In the present case the Plaintiff does not claim exemplary damages such as were

ultimately awarded in that case, but does claim aggravated damages. At page 317 Finlay CJ dealt with several types of damages

which could be awarded and said:-

“2. Aggravated damages, being compensatory damages increased by reason of:-

(a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage,

or

(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the

harm done or the making of threats to repeat the wrong, or

(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and

including the trial of the action.

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as

aggravated damages is not intended to be in anyway finite or complete. Furthermore, the circumstances which may properly

form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition

of the added hurt or insult to a plaintiff who is being wronged, and in part also a recognition of the cavalier or outrageous

conduct of the defendant.”

3. In the present case, the Plaintiff relies on the last of these factors as entitling him to aggravated damages. In Swaime v.

Commissioners of Public Works [2003] 1 IR 521, where the question of aggravated damages was considered in the light of a claim for

negligence against the defendants in exposing the plaintiff to the risk of contracting mesothelioma, Keane CJ said at page 525, after

referring to the Conway case:-

“Although the then Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which

aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not

typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”

4. He then went on to comment that in a claim for negligence one would not expect the circumstances giving rise to aggravated

damages to arise because:-

“Most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”

5. However, after referring to the English decision of Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v.

O’Connell (unreported 5th June 1997) the Chief Justice continued at page 528:-

“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the

court, in my view, to hold that there are no circumstances in which actions for negligence or nuisance, aggravated damages

may be awarded. That question can be left for a case in which it is fully argued. In the present case, however, I am satisfied

that, while the defendants were unquestionably guilty of what the trial Judge described as ‘the grossest negligence’, that

factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those

referred to in the judgment of Finlay CJ in Conway v. Irish National Teachers Organisation [1991] 2 IR 305, or factors of a

similar nature.”

6. It should be said that the authorities referred to by Keane CJ in that passage were not cited in this case either, and the

applicability of aggravated damages to actions in negligence was not argued at any length in this Court. However, it must be

emphasised that the claim for aggravated damages in the present case is not based in any way on the degree of negligence of the

Defendants, but rather on their behaviour subsequent to the negligent acts.

7. The basis for the aggravated damages in the present case lies in the clinical notes of the first named Defendant in relation to the

consultation with the Plaintiff on 12th July 2001. The relevant entry, dated 12/7/01, reads:-

“ROC at OPD today

for see DECO1

PSA 6/52”

8. It is quite clear from looking at the notes that they purport to be a contemporaneous account of what occurred on the various

dates set out in those notes. The Plaintiff gave evidence that the first line was his shorthand for “removal of catheter at outpatients

department today”, that the word “For” was his abbreviation for what he planned to do and that he was to see the Plaintiff in

December 2001. In the course of his evidence he conceded that the words “PSA 6/52”, which was intended to convey that the

Plaintiff was to have a PSA test in six weeks, was an addition which he made to the notes at a later date, namely in December 2002

when he received a letter from the Plaintiff’s solicitor threatening an action against him.

9. The Plaintiff’s advisors clearly had doubts as to the authenticity of these clinical records, and had refused to admit them in

evidence unproved, although the Plaintiff did admit the hospital records without formal proof. The matter finally came to light on the

sixth day of the hearing, during the evidence in chief of the first Defendant. He referred to his clinical notes in relation to a totally

different matter and the learned trial Judge, who appears to have assumed that the clinical notes had been admitted, asked to see

them. Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced. This was

done, and at that stage the first Defendant disclosed that “PSA 6/52” was an addition which I made to the notes at a later date”. He

explained this by saying that in December 2002, when he received a letter from the Plaintiff’s solicitor threatening an action against

him, he reviewed his notes and he also reviewed his correspondence with the Plaintiff’s general practitioner. In the course of this

correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six

weeks time. He said that a letter to a general practitioner would normally be a more complete record, and he assumed that he had

omitted this from his clinical notes. It should be noted that he did not say in his evidence in chief that he recollected having told the

Plaintiff to have an additional test done in six weeks time.

10. Under cross-examination the first Defendant conceded that:-

“I do not say with certainty that I did that or that I gave that instruction to Mr Philp. I cannot remember the consultation. So

if I understand your question to be asking me am I sure that I gave that direction to Mr Philp, can I say I asked him to have it

done, the answer is no, I cannot say that.”

11. Subsequently in the course of cross-examination Counsel for the Plaintiff sought to ask him when was the first time that he had

disclosed to anyone that he had altered the document. Through his Counsel, the first Defendant claimed privilege on the basis that he

was being asked to disclose a communication between a client and his lawyer, and this objection was upheld. However, in cross-

examination he did say that he had realised “recently” that there was a possibility that he did not advise the Plaintiff to have a test

done as recorded in the notes and added:-

“And I then took the step of contacting my legal team and informing them of the situation in relation to the note.”

12. Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one

week before the hearing and later said:-

“I at all times up to recently, by which I mean, you know, approximately, two weeks ago, was of the mind that I had asked for

this PSA test to be done.”

13. He repeated on several other occasions in the course of the cross-examination that, before the action had commenced, he

contacted his legal team and discussed the matter with them and sought advice.

14. The learned trial Judge, having heard all the evidence, stated at page 26 of his judgment:-

“Given Mr Ryan’s evidence in Court that he has no recollection of the consultation of the 12th July 2001, I cannot however

accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it

reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor’s letter in December 2002

he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act,

he inserted a note which he felt would assist him in his defence of what was obviously going to be a claim against him.”

15. This is an extremely serious finding against the first Defendant. It is a finding that the first Defendant deliberately and knowingly

altered a document which he must have known would be used in court proceedings with the intention of, as the learned trial Judge

said, assisting his case, which in fact means with the intention of deceiving the court, and of attempting to deprive the Plaintiff of

damages to which he has subsequently been found to be lawfully entitled.

16. That matter is of itself extremely disturbing, because obviously the first Defendant had instructed his legal advisors that he had

requested the Plaintiff to have a further PSA test in six weeks time. His legal advisors, quite properly at the time, in effect

represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant. I will come to these

matters later in the judgment.

17. In addition to misleading his legal advisors, the Plaintiff also sought to, and succeeded in, misleading his own expert witness. He

prepared a case summary submitted to Mr Michael Murphy, a consultant urologist who gave evidence on his behalf, which was headed

“Case Summary”. In the course of that case summary he made the following statements:-

“I asked him to have a serum PSA measurement carried out after six weeks in the Middle East and to contact me with the

result.”

and

“Given that I felt that prostate cancer was only a remote possibility, would see it as good medical practice to try and avoid

what appeared to be unnecessary worry and anxiety for a patient over a period of six weeks while his next investigative

assessment (i.e. repeat serum PSA) was awaited. Had the follow-up PSA test been carried out as instructed and in the event

that the follow-up PSA test was not showing signs of decreasing and indeed were it noted to be increasing, I would have

expressed appropriate concern …..”

and

“What transpired was that Mr Philp did not contact me with a PSA result as requested.”

18. In my view this was a clear attempt to mislead a witness, who the first Defendant knew was going to give evidence as an expert,

and therefore would be regarded by the Court in that light. Through misleading Mr Murphy, the first Defendant was again attempting

to mislead the Court. Fortunately, the alteration was discovered before Mr Murphy gave his evidence, and was indeed roundly

condemned by him.

19. The allegation that the Plaintiff had been asked to have a further test done in six weeks time was not just contained in the

clinical notes and the report to Mr Murphy. It was also made in a number of ways to the Plaintiff’s legal advisors, albeit, as I have

said, at a time when no doubt it was believed to be true by the Defendants’ legal advisors. On 1st July 2003 the Plaintiff was served

with a notice to admit facts, and was asked to admit that he had been told by the first named Defendant to arrange to have a test

carried out six weeks later. On 7th July 2003 interrogatories were administered to the Plaintiff requiring the Plaintiff to admit on oath

that the first named Defendant told him on 12th July 2001 to arrange to have a PSA test carried out six weeks later and that it was

important to have the test carried out. On 22nd May 2003 the first named Defendant swore an affidavit of discovery which disclosed

his clinical notes, and when production of these were sought, it was the altered notes that were produced. In fact, despite its date,

that affidavit of discovery was not furnished to the Plaintiff until the 24th June 2003. On 1st July 2003 the Plaintiff’s solicitors were

asked admit the medical records held by the Defendants without formal proof. On 19th July 2003 the Defendants’ solicitors replied to a

notice for particulars stating that “on the 12th July 2001 Dr Ryan instructed the plaintiff to have a serum PSA measurement carried

out after six weeks in the Middle East and to contact him with the result”.

20. There is no doubt that faced with these documents, the defence against the Plaintiff’s case must have appeared to the Plaintiff’s

advisors as being much stronger than it really was. The main plank of the Plaintiff’s case was that he was not told for some eight

months after he became ill in July 2001 that he was suffering from prostate cancer. If in fact he himself had failed to comply with the

first Defendant’s request to have a test carried out in six weeks time, then of course much if not all of the blame for the delay would

have been attributable to the Plaintiff himself. He might well have been discouraged from proceeding with the action or have settled it

at well below its value because of the apparent risk. Furthermore, had the alteration in the document not come to light somewhat

fortuitously through the intervention of the learned trial Judge, the Defendants’ expert, Mr Murphy, would have given evidence on the

basis that the alleged instruction had been given to the Plaintiff, and the first Defendant himself would not have been subjected to

strenuous cross-examination in relation to this instruction. It is quite possible that the learned trial Judge in those circumstances

would have found against the Plaintiff.

21. The truly appalling feature in this case is that it appears that the Defendants’ advisors were told of the alteration by the first

Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those

circumstances they did not inform the Plaintiff’s solicitors of the true facts. While a great deal of blame attaches to the first

Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my

view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes

in cross-examination of the Plaintiff or his advisors, although they did suggest in such cross-examination that he had been instructed

to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for

by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that

there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished

to the Plaintiff’s solicitors as being genuine, and that the facts stated in the alteration had formed part of the instructions to Mr

Murphy.

22. In reviewing the law at the beginning of this judgment I pointed out that some doubt had been expressed as to whether

aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such

damages can and should be awarded. The Plaintiff has not given evidence of the effect of the misinformation which he received had

on him. This is not something which the Defendants can complain about, because his failure to discover the true facts before he had

closed his case was due entirely to what I can only describe as the misconduct of the Defendants’ advisors in not disclosing the

alteration.

23. In the absence of direct evidence, in those circumstances in my view the Court is perfectly entitled to infer the probable effect

that this false information had on the Plaintiff. It must be remembered that he is a man who had for the last two years known that he

was suffering from prostate cancer and does not have long to live. He has undertaken proceedings based on the worry, anxiety and

loss of opportunity which arose due to the negligence of the Defendants. One can only imagine the additional stress and anxiety

which he must have suffered in the belief that there was, at least in documents shown to him, a strong defence to his action. The

loss for which he has already been compensated due to the negligence of the Defendants has in my view been greatly increased due

to the grossly improper behaviour of both the first Defendant and his legal advisors. This is clearly as case where already existing

damages have been aggravated by such behaviour and I would award him a sum of €50,000.00 in addition to the compensatory

damages awarded in relation to his basic claim, as set out in the judgment of Fennelly J, with which judgment I am in full agreement.