Supreme Court of Ireland Decisions

1. The plaintiff instituted proceedings against the defendants, claiming damages for negligence and for assault arising out of an operation for vasectomy carried out by the second and third defendants on the plaintiff as agents of the first defendant on the 3rd May, 1984.

2. By order dated the 17th July, 1989, made by MacKenzie J. in the High Court, the court (a) found that the defendants were not negligent, (b) found that there was a technical assault and battery on the plaintiff in that he did not consent to Dr. Kelly’s participation in the operation, and assessed damages for the plaintiff in a total sum of £42,500, directing that he recover that sum from the defendants.

3. The defendants appealed against the order awarding the plaintiff the sum of £42 ,500 damages and sought in lieu thereof an order dismissing the plaintiffs action or, alternatively an order for a re-trial of the said action. The plaintiff entered a cross-appeal against the said order, appealing:-

4. I have read the judgment which is about to be delivered by O’Flaherty J., and in which the facts of this case and considerable details of the evidence given are comprehensively and, I am satisfied, accurately set out and it is unnecessary for me to repeat them in this judgment.

5. The issues which arose at the hearing of the appeal and cross-appeal are as follows.

6. With regard to these issues, I have come to the following decisions.

7. The evidence before the learned trial judge, which he apparently accepted, as appears from his judgment, was that the complication which the plaintiff suffered as a result of this operation was a condition of orchialgia which is a rare condition the cause of which is not yet known to medical science but which has been established as following upon an operation for vasectomy in an infinitesimal proportion of cases, though the causative link between the operation and the condition has not yet been established. No evidence was submitted to the trial judge to the effect that any particular want of care in the carrying out of the operation could be or was associated with the onset of this condition of orchialgia. Medical witnesses called on behalf of the plaintiff were unable to point, under cross-examination, to any act of negligence arising in the carrying out of the operation, the evidence of which had been given before the court. In these circumstances, I am satisfied that the learned trial judge was clearly entitled to reach a conclusion, as he did, that there was no negligence in the carrying out of the operation and, indeed, it appears to me that a finding to the contrary effect would be difficult to support on the evidence which appears from the transcript.

8. I am satisfied that there is, of course, where it is possible to do so, a clear obligation on a medical practitioner carrying out or arranging for the carrying out of an operation, to inform the patient of any possible harmful consequence arising from the operation, so as to permit the patient to give an informed consent to subjecting himself to the operation concerned. I am also satisfied that the extent of this obligation must, as a matter of common sense, vary with what might be described as the elective nature of the surgery concerned. Quite obviously, and apart even from cases of emergency surgery which has to be carried out to persons who are unconscious or incapable of giving or refusing consent, or to young children, there may be instances where as a matter of medical knowledge, notwithstanding substantial risks of harmful consequence, the carrying out of a particular surgical procedure is so necessary to maintain the life or health of the patient and the consequences of failing to carry it out are so clearly disadvantageous that limited discussion or warning concerning possible harmful side-effects may be appropriate and proper. On the other hand, the obligation to give warning of the possible harmful consequences of a surgical procedure which could be said to be at the other end of the scale to the extent to which it is elective, such as would undoubtedly be the operation of vasectomy, may be more stringent and more onerous. I am satisfied, however, that the standard of care to be exercised by a medical practitioner in the giving of the warning of the consequences of proposed surgical procedures is not in principle any different from the standard of care to be exercised by medical practitioners in the giving of treatment or advice, and that there are not good grounds for suggesting that the issue of negligence arising under this heading is outside the general principles which have been enunciated by this Court in previous cases concerning the standards of care and the methods of ascertaining them arising in medical negligence cases which were summarised in Dunne (Infant) v. National Maternity Hospital [1989] I.R. 91, which summary has been set out in the judgment about to be delivered by McCarthy J. it is, I am satisfied, true, however, that if a medical practitioner charged with negligence consisting of a failure to give sufficient warning of the possible consequences of an operation, defends his conduct by establishing that he followed a practice which was general, that it may be, certainly in relation to very clearly elective surgery, that the court might more readily reach a conclusion that the extent of warning given or omitted contained inherent defects which ought to have been obvious to any person giving the matter due consideration than it could do in a case of complicated medical or surgical procedures, and an allegation that, although generally adopted, they were inherently unsafe.

9. The learned trial judge in his judgment in this case accepted the evidence of Dr. Sheehy-Skeffington, who acted as a director of the first defendant, that in the course of an interview had with the plaintiff prior to his consenting to undergo the operation of vasectomy, she informed him that “very rarely, for no known reason, some patients experience pain for some years after the operation” and that such pain was ongoing indefinitely, but that that occurrence was very rare. I am satisfied that this was an adequate and sufficient warning of the existence of the possible consequence of orchialgia to which I have already referred in this judgment. That consequence, for no known reason, occurred in very rare cases, to the knowledge of the medical profession at the time when the conversation between Dr. Sheehy-Skeffington and the plaintiff took place. On the evidence in the case, Dr. Sheehy-Skeffington was at that time aware of one case out of a number of thousands of the carrying out of the operation of vasectomy by the first defendant in which such a complication occurred. Notwithstanding medical evidence to the contrary from some of the witnesses called, I take the view that there was an obligation on this doctor to inform the plaintiff of that possible consequence. The fact that he was given such a warning was completely denied by the plaintiff and was also denied by his wife, who was present on the occasion on which the warning was stated by Dr. Sheehy-Skeffington to have been given. I am quite satisfied that the learned trial judge was entitled to accept the evidence of the doctor and to reject the evidence of the plaintiff and his wife on this conflict, and that having done so this Court cannot by way of appeal disturb that finding.

10. The further issue arises, however, on this part of the case, as to whether, having regard to the evidence as to what occurred to the plaintiff in addition to an ongoing pain, identified as orchialgia by a number of the witnesses after this operation, consisting of various unsuccessful surgical interventions, the removal of one testicle and, apparently, a loss of potency as distinct from or in addition to a loss of sexual capacity due to pain were matters which were, on a standard of reasonable care, a possible consequence he should have been warned about. I am satisfied that the evidence did not establish that these various consequences were a known complication of a carefully carried out operation of vasectomy, and that the furthest the evidence went was what I have already indicated, namely, the existence of an ongoing indefinite pain, arising from orchialgia, in a very limited number of cases, indeed, expressed in single numbers amongst multiple thousands. For this reason, I conclude that quite apart from any question of the plaintiff having denied the giving of such a warning and, therefore, not being in a position to express any view, other than a hypothetical one, as to what he would have done if he had been given it, the warning accepted by the learned trial judge to have been given by Dr. Sheehy-Skeffington, on this occasion, was sufficient, on the facts, to discharge her responsibility to exercise reasonable care.

11. I am in agreement with the conclusions reached by O’Flaherty J. in the judgment which he is about to deliver concerning this issue. It seems to me that the evidence conclusively established that the consent which the plaintiff gave was to the carrying out of this operation upon him by a person employed by Family Planning Services Ltd., the first defendant, for that purpose. The operation was at all times, on any evidence given, under the complete control of the second defendant, who was so employed. No evidence was adduced that the intervention of the third defendant, who participated in the operation by way of assistance, in any way altered the nature of the operation or the consequences flowing from it. It was clear that the plaintiff, who was not at any time under general anaesthetic, was aware at all times of the intervention of the third defendant in the operation. He came to this organisation, the first defendant, for the purpose of having this particular operation carried out, and that is precisely what was done. In my view, it is not correct, as a matter of law, to hold that the intervention of the third defendant, even if the plaintiff was not informed beforehand of it, could or does vitiate the consent which it was necessary for him to give in order for the operation lawfully to be carried out. In these circumstances I would allow the defendants’ appeal against the finding, even of technical assault, in this case.

12. Having regard to my decision that the warning given was sufficient and that the learned trial judge’s finding to that effect cannot be overturned, this question does not arise for decision in this case. Having read the judgment about to be delivered by O’Flaherty J., however, and having, in particular, considered his adoption of the principles laid down in the case decided by the Supreme Court of Canada in Reibl v. Hughes (1980) 114 D.L.R. (3d) 1, I am satisfied that it is correct as a matter of law to say that where a doctor has, in relation to a surgical intervention or other treatment, failed to give an adequate or sufficient warning as to possible future risks involved in the patient undergoing it, that the proper cause of action against such person in the event of damage ensuing is a claim for damages for negligence, and that a claim of assault should, as O’Flaherty J. says, be confined to cases where there is no consent to the particular procedure or where an apparent consent has been vitiated by fraud or deception.

13. Notwithstanding the very severe and distressing consequences of this operation, which it is clear on the evidence this unfortunate plaintiff has suffered, I am driven to the conclusion that the defendants are entitled to succeed in the entirety on the appeal which they have brought, and that the plaintiff must fail in his cross-appeal. I would, therefore, not wish to express any view on the two issues concerning damages which do not now arise, in my view of the case.

14. I agree with the judgment to be delivered by O’Flaherty J.

15. In 1984 the plaintiff and his wife had five children aged between 19 and 3 years; they did not wish to have any more children; they went to the first defendant, a non-profit organisation in birth control, so that the plaintiff might have a vasectomy. They called to the first defendant and were interviewed by Dr. Sheehy-Skeffington, a medically qualified doctor who has specialised in family planning since 1977. She counselled the plaintiff and his wife, discussed their own relationship and their request to have a vasectomy, the nature of which operation she explained. On her account, which was accepted by the trial judge, she “would have explained that the hormones that affect him in any sexual way – give him his sexual drive etc. – don’t come along this duct and that if he had any sexual difficulties after the operation it would be a psychological difficulty. I would have said ‘it is all in the mind, it is not a physical thing’.” She further “explained to Mr. Walsh that he could expect a certain amount of swelling and bruising of the scrotum for several days after the operation, that this usually settles down within seven days but sometimes it takes longer. I said to him that if he felt, two weeks after the operation, he still had discomfort, he should contact the clinic. I then proceeded to explain that occasionally we get minor medical complications due to the way his body reacts to the operation...They are minor from the medical point of view, and they give examples of these as inflammation of the testes and the epididymis and the formation of haematomas and granulomas – those are the four complications that I specifically named. I said that sometimes these problems needed medical treatment but generally resolve themselves as time went on. I then pointed out that very rarely for no known reason some men experience pain for years after the operation–. . . ongoing, indefinitely. But that this occurrence is very rare.”

16. Dr. Sheehy-Skeffington identified the information sheet about vasectomy supplied by the first defendant. Having described the operation, the form posed the question – does it affect your sex-life? and answered – No. It identified possible side effects as follows:-

17. The trial judge queried:-

18. Q.81 Judge: “Some men experience pain for years. Where does that appear in your details?

19. A. It doesn’t, but the whole procedure of the operation couldn’t be listed on that.

20. Judge: Where does it say. . . you have this document with you to remind you what to say?

21. Judge: There is nothing in that about men having pain for years?

22. A. No, there is not, but I always warn them.

23. Q.82 Mr. Quirke: You agree you should give such a warning if you are to follow general and approved medical practice?

24. Q.83 And would you agree it is desirable and in accordance with general and approved medical practice to give that warning?

25. Q.84 Why is it not in the literature?

26. A. I don’t know. There are lots of things that I explain to patients that is not in the literature. I don’t see any necessity for it to be in the literature. I go through the whole procedure of the operation. It is just known medical things we pass on to the patients.”

27. The account of the plaintiff and his wife in this regard emphasised that his wife, in particular, had asked on a couple of occasions about possible interference with what was termed masculinity – meaning the plaintiff’s sexual potency and were assured that it would not interfere but in many cases actually improve the situation. In cross-examination it was suggested to the plaintiff that he had been told “that there was an outside chance that you might suffer from persistent symptoms” and that “symptoms can occur at times which are chronic”. The plaintiff denied this. In his judgment, MacKenzie J. stated that “the plaintiff strongly maintains that he was not told that one of the consequences of this operation was orchialgia which is a condition of pain in the testicles.” Later he says “as regards the failure to give a warning I believe it was given by Dr. Sheehy-Skeffington. The question is was it sufficient. I think it was. The plaintiff must have known this to be a consequence of the operation, otherwise he would have followed the direction in the circular to report immediately if anything unusual should have happened to him. Why he did not do this is a mystery.”

28. The first particular of negligence and breach of duty alleged in the statement of claim is:-

29. It is not in dispute that the plaintiff’s sex life ceased in 1987. Whilst Mr. Parsons, a consultant urological surgeon from the Royal Liverpool Hospital, referred to the possibility of successful vasovasostomy or reversal of vasectomy, and this is borne out by medical literature produced at the trial (“Open ended vasectomy, sperm granuloma and post-vasectomy orchialgia”, 32 Fertility and Sterility no. 5) it appeared to be accepted that the plaintiff’s condition, including impotence, is permanent and incurable. My judgment does not depend on the resolution of that question.

30. The legal principles to be applied in cases of alleged medical

31. Applying the first and second principles, which appear to me to interact, to the findings of fact made by the trial judge I agree with his conclusion that the case in negligence was not proved. “All the evidence is that the operation was performed properly. Nothing was omitted, nothing that should have been done was not done but it was clumsy, it should have been done under general anaesthetic and it took an inordinately long time. . .” The plaintiff has contended that these latter findings establish negligence within the principles I have cited; I reject that submission. What is described as being clumsy or over-long in time does not establish a lack of care; indeed, it may well establish the converse. On the issue of negligence, it remains to consider the application of the third principle, adapted, as need be, to the special circumstances of what is called elective surgery.

32. All surgery, in a sense, is elective although the election may have to be implied from the circumstances rather than determined as express. The gravely wounded, the gravely ill may be unconscious but in urgent need of surgery. A patient’s condition may be such as to demand surgical intervention as the only hope for survival. Such may be called non-elective surgery. The patient given the choice between enduring pain and having limb replacement surgery or fusion surgery may technically be electing as between the pain and the surgery but the election may be more apparent than real. An extreme of elective surgery would be what is purely cosmetic - simply to improve the natural appearance rather than to remedy the physical results of injury or disease. Even it may have an element of quasi-medical care because of the psychological reaction of the patient to personal appearance. A like argument may be advanced in respect of contraceptive surgery, male or female. Such surgery does not have a direct effect on the health or well being of the patient nor in prolongation of life; it may alleviate marital stress or other domestic pressure and in that sense be therapeutic. Essentially, however, it is for the improvement of the sex life of the couple concerned. At least since 1979 the danger of chronic orchialgia was known and documented; there had been one instance of it in the first defendant’s clinic itself in 1983. It still remained a minor and elective surgical procedure.

33. The only case cited in respect of patient choice is Daniels and Another v. Heskin [1954] I.R. 73 where, so far as relevant to the instant appeal, the question arose as to the alleged obligation on the part of a doctor to inform a patient that a foreign object has been left in her body so as to enable her or her husband to take such action as they might deem fit. Maguire CJ. upheld this argument, approving a decision of du Parcq J. in Gerber v. Pines 79 Sol. Jo. 13, and saying at pp. 76-77:-

34. This was a dissenting judgment. Lavery J., with whose judgment Murnaghan and O’Byrne JJ. agreed, said at p. 80:-

35. The force of these observations is somewhat weakened by the subsequent paragraph where Lavery J. said:-

36. Kingsmill Moore J. at p.87 said:-

37. The observations made by Kingsmill Moore J. on such matters as the social position of the patient or the class and standard of eduction of the patient and her husband I find difficult to understand as relevant criteria, however well meaning the expression of such views. The learned judge may well have been offending against the very principle that he was seeking to uphold.

38. In McMahon & Binchy, Irish Law of Torts (2nd ed.) at p. 268 the authors deal with the duty of disclosure:-

39. Despite the division identified by Messrs. McMahon & Binchy, in a case such as the present I believe that the second and third solutions propounded by them are essentially the same. In determining whether or not to have an operation in which sexual capacity is concerned, it seems to me that to supply the patient with the material facts is so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical doctor would fail to make it. What then is material? Apart from the success ratio of the operation, what could be more material than sexual capacity after the operation and its immediate sequelae? Whatever about temporary or protracted pain or discomfort, the only information given to the plaintiff and his wife on the score of sexual capacity, upon which they placed so much emphasis, was that contained in the brief paragraph headed “Does it affect your sex-life? No”. This is not a question of merely determining that a particular outcome is so rare as not to warrant such disclosure that might upset a patient but, rather, that those concerned, and this includes the authors of the information sheet, if they knew of such a risk, however remote, had a duty to inform those so critically concerned with that risk. Remote percentages of risk lose their significance to those unfortunate enough to be 100% involved. In my view it is inescapable that the defendants, possessed as they were of this knowledge, were in breach of their duty to the plaintiff, and to his wife, for failing to identify the risk of impotence, whether it be functional due to pain and discomfort, or mechanical due to some other cause.

40. It does not automatically follow that the patient would not have undergone the operation despite being informed of the risk. The plaintiff testified that if he had known he would not have undergone the procedure; it was the defendant’s case that he did know at least of the risk of chronic orchialgia. The trial judge accepted that a warning was given by Dr. Sheehy-Skeffington as to possible complication including a statement that very rarely, for no known reason, some patients experience pain for some years after the operation, going so far as to say that it might be ongoing, indefinitely. The fact that the plaintiffs evidence in respect of what he was told was not accepted cannot determine the real issue as to the requirement of warning the plaintiff, and his wife, of the risk of sexual impotence. It follows, in my judgment, that the plaintiff has established his right to damages. Ordinarily, I would be content to make such assessment as appeared properly to flow from the evidence; here the learned trial judge, who rejected the claim in negligence but upheld it in assault, did assess damages for assault; it may be that the basis of the assessment would be same but I find it totally unsatisfactory that it should remain on that basis of assessment and I would, accordingly, direct a new trial as to damages.

41. The defendants appealed against the finding in the High Court that there had been a technical assault and breach of constitutional rights in that the plaintiff had not consented to the participation of Dr. Kelly in the operation. His judgment on that aspect has been vigorously criticised by counsel for the defendants; in my view with some justification. The conduct of the plaintiff after the operation may well be criticised; indeed many legitimate criticisms may be levelled at his entire course of conduct, including the initial nature of the proceeding and the extent of the claim. That does not, however, mean that there was no evidence upon which the trial judge could properly conclude that there had been an absence of consent. The plaintiff went to the clinic, he believed, to be operated on by people whom he believed to be competent although, in fact, he was mistaken in thinking that Dr. Sheehy-Skeffington would play any role in the operation itself. At a time when he was in some state of anxiety yet ready for the operation a third party was introduced; it seems to me it was open to the trial judge to conclude that the plaintiff’s consent was not validly obtained. For that reason I would reject the appeal against the finding of technical assault. A breach of a constitutional right is a very grave matter, but assault actions should not be dressed up in a constitutional guise. Defamation and trespass to property may theoretically offend against some of the guarantees in respect of personal rights contained in Article 40 of the Constitution. It is, however, the State which is enjoined by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the life, person, good name and property rights of every citizen. Claims to attack such rights unjustly may well be resisted calling in aid the constitutional guarantee; the guarantee, however, is not to be used to elevate the status of a trifling cause of action. There being a technical assault, in my judgment nominal damages was the true measure and I would assess them at one penny.

42. In the result, I would dismiss the defendants’ appeal against the finding of assault, allow the defendants’ appeal against the assessment of damages in so much as the same exceeds one penny and allow the plaintiffs cross-appeal on negligence and remit the action for the assessment of damages.

43. In 1984 James Walsh, the plaintiff, then aged about forty four years considered having a vasectomy. He had seen an advertisement in a newspaper by the first defendant, and he made an appointment and, as a result, spoke with Dr. Sheehy-Skeffington. She was a counsellor engaged by the clinic run by the first defendant. His wife also attended that counselling session. The plaintiff gave evidence that Dr. Sheehy-Skeffington read the literature to him and explained that the operation was painless and safe but emphasised that it was irreversible. Mrs. Walsh raised the question whether the operation would interfere with their sexual relations in any way. They were told that it would not; on the contrary, they were told that in many cases it improves the situation for some people. The plaintiff said that he was not warned of any long term side-effects and that the emphasis was really on the point that the operation was irreversible. He was given a document concerning vasectomy which I reproduce in full.

44. He was also given a document containing follow-up instructions. It contained the following:-

45. There followed, also, instructions on the steps to be taken to ascertain whether the operation had achieved its purpose of rendering the plaintiff infertile. Dr. Sheehy-Skeffington also examined the plaintiff in the genital area and he was told that everything was in order. He was given an appointment for the 3rd May, 1984, to have the vasectomy performed at the defendants’ clinic at Pembroke Road, Dublin. The plaintiff said that he was told in the counselling session that the vasectomy would be done by Dr. Sheehy-Skeffington or by the “Director”, Dr. Orr.

46. When the plaintiff turned up for his appointment on the 3rd May, he met Dr. Orr, the second defendant. He said that Dr. Orr enquired whether he had changed his mind and he said that he had not. She examined him thoroughly in the genital area and he asked was he “OK” and she said “Yes, fine”, and directly after that he said that a gentleman came into the room and that a discussion ensued between Dr. Orr and this gentleman. This was the third defendant, Dr. Kelly. He said the carrying out of the vasectomy started more or less directly after that; that Dr. Orr and the gentleman chatted for some time and that Dr. Orr was directing Dr. Kelly as to how he should inject the plaintiff with a local anaesthetic. A nurse was also present. The plaintiff claimed that Dr. Kelly had not been introduced to him at all; and that he did not even know that he was a doctor. According to the plaintiff it was Dr. Kelly who administered the anaesthetic which did not take in full and that he performed the operation which involved a cut on both the right and the left side of the scrotum; both cuts were made by Dr. Kelly under Dr. Orr’s supervision. Dr. Orr’s account of the operation was different. She said that she made the first cut on the right hand side and that the second cut was made by Dr. Kelly under her supervision. The plaintiff’s evidence on this aspect of the case, put shortly, was that the operation effectively was carried out by Dr. Kelly; that he seemed to have difficulty carrying it out and that it caused him a good deal of pain. Furthermore, the operation took longer than he expected. He expected it would take about twenty to twenty five minutes whereas it fact it took forty to forty five minutes.

47. After the operation he said that he felt “shattered” and that he was in pain. The operation was on a Thursday and he rested up for the next few days but continued to suffer pain and a feeling of bruising and soreness. The bruising went after a number of weeks and he then noticed that he got sudden pain on ejaculation running from the left groin area up his side. This was six to eight weeks after the operation. For the rest of that year he continued to have pain especially in the left scrotal area and the pain on ejaculation increased and eventually in the early part of 1985 he went to see Mr. Dermot O’Flynn at the Meath hospital. Mr. O’Flynn did not give evidence. The pain continued and he said it got more intense and he returned to the first defendant’s clinic for the first time on the 29th May, 1985: a year after his operation. This was because he felt that he was getting nowhere with such medical attention as he had had; that it was not curing his problem and at that time he felt it had something to do with the vasectomy and he decided to go back. There he saw Dr. Hilary Powell and an appointment was made for him to see Dr. Orr in June, 1985, and he said that she concurred with Dr. Powell’s finding that his left testicle appeared to be smaller and softer. Dr. Orr recommended that he should see Mr. Michael Butler, consultant urologist at the Meath hospital, which he did on the 25th June, 1985; he claimed that Mr. Butler refused to treat him. He said that when he reported this to Dr. Orr that she was abrupt to him and put the phone down on him. His general practitioner afterwards referred him to Mr. Dan Kelly at St. Vincent’s hospitaL He, like Mr. Butler, is a urologist. Mr. Kelly did not give evidence. On the 10th October, 1985, he went to Mr. William Arthur Tanner. He is a general surgeon attached to the Meath and Adelaide hospitals. It appears that he found a granuloma, a shrinkage of the left testicle, and he recommended an operation through the left groin to the left testicle. This was carried out in October, 1985 , at the Adelaide hospital. He found the epidydimis on the left side was inflamed and degenerative. This was removed. After this procedure the plaintiff continued to have a good deal of pain; was extremely tired and could not get back to work for a long time after that. He had pain down the left scrotal area and also in the left groin area. Thereafter, towards the end of 1986, the plaintiff saw a colleague of Mr. Tanner’s, Dr. Shanahan, who is a pain specialist. He had various tests carried out and also the plaintiff went for epidural treatment in early 1987. In March, 1987, he went through a procedure known as a constant epidural which meant for twelve days or so the lower part of his body was “switched off’. That meant that he had no function in the lower part of his body but it also meant he had no pain there. However, thereafter the pain returned. In April, 1987,he had an orchiectomy; that involved the removal of the left testicle. It appears that the operation carried out by Mr. Butler was not recommended by him nor did it prove beneficial. The plaintiff had thought that it might help. After that operation the plaintiff developed trouble with his right testicle; cysts developed in that region. The plaintiff was afterwards put on various drugs in an attempt to alleviate his pain. In August, 1987, he said that his sex life had ground to a halt; this was because of the pain that he had on ejaculation. He regarded himself as impotent by August, 1987. So, in a word, ever since the operation the plaintiff has had a miserable time. He has endured great pain and has been through many operation procedures.

48. How did it come about that an operation that was meant to be simple and straightforward produced such consequences? The best answer, a diagnosis of orchialgia, was provided by Mr. Keith Parsons, who was the chief medical expert for the defence, but before I detail what he had to say I think it right to summarise the evidence of Dr. Sheehy-Skeffington, Dr. Orr and Dr. Kelly.

49. Dr. Sheehy-Skeffington gave evidence that she was a medical doctor and at the date of trial had about twelve years’ experience counselling in family planning matters. It appears that she did not recall the actual session that she had with Mr. and Mrs. Walsh but she gave evidence about what she always did by way of counselling in relation to vasectomies. That was to explain the finality of the operation; the actual mechanics of the operation and at a certain stages she came to deal with possible complications. First of all she explained there was a possibility of recanalisation of a duct which would mean that the purpose of the operation would have failed. She went on to say that she explained to the plaintiff that he could expect a certain amount of swelling and bruising of the scrotum for several days after the operation but that that usually settles down within seven days but sometimes it takes longer. She explained to him that if he had discomfort more than two weeks after the operation he should contact the clinic. The doctor then explained that occasionally there are minor medical complications such as inflammation of the testes and epididymis and the formation of haematomas and granulomas and she said that these are the four complications that she specifically named. She said that sometimes these problems needed medical treatment but generally resolved themselves as time went on. She then said that she pointed out that very rarely, for no known reason, some patients experience pain for some years after the operation. Then the following dialogue took place:-

50. MacKenzie J.: “Experience pain for how long?

51. A. Ongoing, indefinitely. But that this occurrence

52. It contained the following:-

53. That was signed by the plaintiff and also by Dr. Sheehy-Skeffington; similarly Mrs. Walsh signed a consent that she was agreeable to the operation and that the nature and purpose of it had been explained to her by Dr. Sheehy-Skeffington.

54. In the course of cross-examination Dr. Sheehy-Skefflngton was asked if she remembered the actual day the counselling took place and she said that she did not. Then the following passage occurs in relation to possible long term consequences:-

55. Q. You agree you should give such a warning if you are to follow general and approved medical practice?

56. Q. And would you agree it is desirable and in accordance with general and approved medical practice to give that warning?

57. Q. Why is it not in the literature?

58. A. I don’t know. There are lots of things that I explain

59. Q. It is something that the person chooses to have or not to have and he chooses on the basis of what you tell him?

60. A. He was interested in the operation and he came to me for advice and I advised him on the vasectomy procedure without advising him to have the operation or not to have it. That is his own decision.

61. Q. But he relies on your competence to tell him what that is?

62. A. Yes, presumably he did.

63. Q. And you don’t recall his precise question, I take it?

64. Q. Or his wife’s precise questions?

65. Dr. Orr said that she was a Fellow of the Royal College of Surgeons and was specifically qualified in family planning and had done a family planning course. She had been associated with family planning since 1979. Dr. Orr explained that Family Planning Services Ltd. is a nonprofit making registered charity. She established that she was not a “director” at the clinic run by the company but she was employed from time to time to carry out operations at the company’s clinic. She went on to describe the operation that was performed on the plaintiff. Mr. Walsh had already been shown into the room by the nurse and she introduced herself. Dr. Orr asked him whether he was perfectly happy with everything that had been discussed with Dr. Sheehy-Skeffington and asked whether there was anything he wanted to ask her. Dr. Orr said that he was content with his decision to go ahead and have a vasectomy. At this point Dr. Kelly came into the room and she said that she introduced him to Mr. Walsh and said: “This is Dr. Kelly who is assisting me today.” Mr. Walsh, according to Dr. Orr, did not say anything in response to that. He just said “good morning” to him. She went on then to describe the carrying out of the operation whereby she made the opening on the right side of the scrotum and Dr. Kelly did the opening on the left and, as far as she was concerned, the operation was uneventful and presented no special difficulties. Dr. Kelly gave evidence of his experience which was that he had carried out about twenty vasectomies under supervision immediately prior to this. About three years before that he was involved in about forty vasectomies, twenty on his own. He was now anxious to increase his confidence because of the lapse of time since he had carried out any vasectomies. He had no actual memory of being in the clinic on the 3rd May, 1984, and did not remember the operation at all. In fact he could not remember anything exceptional having taken place at any of the vasectomy operations at which he assisted.

66. Mr. Parsons gave evidence that he was a consultant urological surgeon attached to the Royal Liverpool Hospital. He said that the plaintiff’s condition was that of orchialgia. He said that it was an exceedingly rare condition of which a practising urologist might have experience of a handful of cases. He said that he had personally seen two and had been aware of others following vasectomy and he said that the plaintiff described identical symptoms as those. He said that the condition was notoriously difficult to treat and bethought that reversing the vasectomy seemed to be the only treatment by which a cure was likely.

67. The matter was at hearing before MacKenzie J. for seven days. He gave a reserved judgment on the 17th July, 1990,holding that there had been a technical assault on the plaintiff by reason of the participation of Dr. Kelly at the operation for which he awarded £30,000 general damages and £12,500 special damages. He found that there was no negligence on the part of the defendants. The defendants have appealed against the judge’s finding that there was an assault and the plaintiff has cross-appealed against his finding that the defendants were not negligent.

68. The learned trial judge found that there had been a technical assault and battery in that the plaintiff never consented to Dr. Kelly’s participation in the operation. The plaintiff’s counsel sought to uphold this finding of assault and battery on two bases, viz. (i) as found by the judge: that the plaintiff had not consented to Dr. Kelly’s participation in the operation; and (ii) that the consent that he gave to have the operation carried out was not “an informed consent” because the long-term consequences had not been explained to him.

69. The judge held, in effect, that the operation was performed properly and no serious effort was, or could be, made to upset that finding on appeal. The evidence was all one way: that it was the fact of the vasectomy rather than the way it was carried out that had caused the plaintiff’s problems.

70. The plaintiff made the case that he was consenting to Dr. Orr only to carry out the operation. But it appears that he mistakenly thought that Dr. Sheehy-Skeffington might, also, have carried out the operation though, as it transpired, she had never carried out such an operation. So the reality of the situation was that the plaintiff at the time that he consented to have the operation carried out did not know the extent of Dr. Orr’s competence and the evidence did not establish any lack of competence on Dr. Kelly’s part: rather that he was in need of more experience to improve his confidence. It seems to me that what the plaintiff was agreeing to was that the operation should be carried out by a person or persons with the requisite skill and that it should be competently done. That is what happened in the circumstances of this case. Even accepting the plaintiffs version of events, I believe that Dr. Kelly’s participation in the operation was under the supervision of Dr. Orr at all times and that his participation did not vitiate the consent that he had undoubtedly given to the particular procedure that he wished to have carried out.

71. In the alternative, it is submitted under this heading that because the possible risks of long term consequences and complications were not explained to the plaintiff his consent was not an “informed consent” and, therefore, the operation as performed constituted an assault on him. Assuming for the sake of this argument that that was the factual position – though I will return to this topic later – I believe that if there had been such a failure to give a warning as to possible future risks that would not involve the artificial concept of an assault, but, rather, a possible breach of a duty of care giving rise to a claim in negligence. A claim of assault should be confined to cases where there is no consent to the particular procedure and where it is feasible to look for a consent. This was the conclusion reached by the Supreme Court of Canada in Reibl v. Hughes (1980) 114 D.L.R. (3d) 1. The facts of that case were, shortly stated, that while or immediately after undergoing serious but competently performed surgery, the plaintiff suffered a massive stroke causing paralysis on the right side of the body and impotence. Stroke, paralysis, or even death, were among the risks attending both this surgery or its aftermath and the patient’s refusal to undergo the operation. In answering the patient’s query about the possibility of stroke, the surgeon did not inform him of his chance of being paralysed during or shortly after the operation but stressed that the chances of paralysis were greater if the patient did not undergo surgery. The patient testified that he would have foregone this elective surgery until a lifetime retirement pension had vested in a year and a half, and would have opted for a shorter, normal life rather than a longer one as a cripple. In other words, it was held that while, if he did not have the operation he would most likely suffer a stroke some time in the future (within, perhaps, four or five years), the possibility of an immediate stroke following on the operation was not stressed. The trial judge in that case found for the plaintiff both in battery and negligence. The finding of battery was upset by the Supreme Court but the finding of negligence was upheld. Delivering the judgment of the Court, Laskin CJ. said (at p. 10):-

72. Laskin C.J. then instanced cases where there had been misrepresentation of the surgery or treatment for which consent was given but a different surgical procedure or treatment was carried out and went on to say:-

73. In my judgment, the trial judge was in error in holding that there was an assault, technical or otherwise, in this case. If, as he held, there had been a technical assault that should give rise only to nominal damages. I would confine the notion that the plaintiff can recover all the damages that flow from an assault without having to prove that they are foreseeable to intentional assaults.

74. The plaintiff cross-appeals against the trial judge’s finding that negligence had not been proved against the defendants. The judge said in the course of his judgment:-

75. Counsel for the plaintiff submits that the finding that the operation was “clumsy” is not consistent with a finding that there was no negligence. The defendants countered by saying that there was no evidence to support the finding that the operation was done in a clumsy fashion. It is pointed out that the plaintiffs expert did not think that the operation had taken an undue length of time because, as he said, it had often taken good vasectomists forty minutes to carry out such an operation and there was certainly no evidence to support the finding that the operation should have been done under general anaesthetic; on the contrary, it was given in evidence that this operation was done frequently under local anaesthetic. There was no evidence to support the trial judge’s strictures as regards the manner in which the operation was carried out. Even if there was any substance in them and if they went to establish negligence, which they do not, the plaintiff would only be entitled to compensation for such discomfort as he suffered for the duration of the operation, nothing more.

76. As regards the warning which the learned trial judge said that Dr. Sheehy-Skeffington gave, counsel for the plaintiff submits that the learned trial judge erred in law in finding that a warning of the likely or possible consequences of the operation had been given to the plaintiff and in holding that such warning was sufficient, particularly in view of the fact that this was an elective operation. The plaintiff made the case in evidence that he was given no warning. So did his wife. Dr. Sheehy-Skeffington swore that she always gave such a warning. Counsel submitted that the direct evidence of the plaintiff, who must be taken to have a better recollection of matters, should have been preferred to that of Dr. Sheehy-Skeffington who did not recollect her actual interview with Mr. and Mrs. Walsh. However, she did swear that she always gave this warning and the learned trial judge was entitled to act on that evidence. This is a primary finding of fact with which, in the ordinary way, we as an appellate court are not entitled to interfere. It is right to say, too, that dents had been made as regards the plaintiff’s recall which the trial judge would have been entitled to take into account. I leave aside evidence that the plaintiff gave of minor details concerning the state of the room in which the operation was carried out and other matters incidental to the operation – which it is hard to credit – but there were at least three matters which could be demonstrated objectively not to be correct:-

77. So, in my judgment, the trial judge was entitled to hold that a warning was given along the lines indicated by Dr. Sheehy-Skeffington in the course of her testimony. The plaintiff, having made the case that no warning was given, and his case having been conducted on that basis, cannot, I believe, argue in the alternative that if a warning was given it was insufficient. If the plaintiff’s case at the trial had been that a warning, though given, was insufficient in the sense that the plaintiff was not made to appreciate fully what might be in store for him I, for my part, would think that this case would have been difficult to refute. No warning as to lasting complications was in the literature; on the contrary, the description of the operation in the literature which he received was rather bland, to say the least; no such warning was given by Dr. Orr who was in charge of carrying out the operation and the warning he was given came at the end of a catalogue of other matters dealt with by Dr. Sheehy-Skeffington. I would have thought it prudent that the possibility of lasting complications should be placed high up on any agenda and should certainly have been in the literature. It would certainly have put the issue of whether a warning was given or not beyond all doubt.

78. Mr. Keith Parsons, the defence expert, said that if he were counselling a patient before a vasectomy he would not mention the risk of post-vasectomy orchialgia. This is because he thought it so rare as to not require routine warning though when it was pointed out to him in cross-examination that Dr. Sheehy-Skefflngton had said that she had given a warning he seemed to agree that that, too, accorded with general and approved practice.

79. I do not accept that the question of whether a warning should be given in relation to a procedure such as this is to be determined in accordance with the criteria set out in Dunne (Infant) v. National Maternity Hospital [1989] I.R. 91 as regards general and approved practice. Rather I think it is a matter for the trial judge, in the first instance, to find whether there has been a breach of the duty of care owed by the defendants to a person such as the plaintiff. That is to be resolved on the established principles of negligence. This was the approach of the Supreme Court of Canada in the Reibl v. Hughes (1980) 114 D.L.R. (3d) 1.

80. I leave aside the requirements that may come into play in the case of emergency or essential surgery where questions of life and death arise as I do questions of possible emotional upset such as were considered by the Court in Daniels and Another v. Heskin [1954] I.R. 73 and I deal, exclusively, with the case in hand. I have no hesitation in saying that where there is a question of elective surgery which is not essential to health or bodily well-being, if there is a risk – however exceptional or remote – of grave consequences involving severe pain stretching for an appreciable time into the future and involving the possibility of further operative procedures, the exercise of the duty of care owed by the defendants requires that such possible consequences should be explained in the clearest language to the plaintiff.

81. The catalogue of misfortunes of this plaintiff, it must be said, went beyond anything previously known; his situation appears to be unique. The doctor could not be expected to anticipate the many calamities that befell the plaintiff. One operation that he underwent was contrary to his surgeon’s recommendation. I believe that the warning that Dr. Sheehy-Skeffington says she gave was sufficient in the light of the prevailing medical knowledge and experience. It was, it should be said, along the lines of the warning that Mr. Tanner said that he gave his vasectomy patients. He said, having dealt with short-term consequences of the operation, that he warned them of “the difficult long-term complications of pain, long term pain, which can occur, and that this usually disappears after eighteen months.”

82. I regret that I cannot derive any assistance from the plaintiffs assertion that had the warning been given which Dr. Sheehy-Skeffington said she had given, he would have heeded it in the sense that he would not have undergone the operation. This is because he must now be taken to speak with the wisdom of hindsight and, naturally, no rational human being who has undergone what the plaintiff has, undoubtedly, undergone would say that he would go through it all again for the sake of what was to be achieved by the operation. The plaintiff is bound by the primary finding of fact made by the trial judge in this regard, viz, that the warning was given to the plaintiff and, in those circumstances, it seems to me that I am precluded from engaging in any examination of whether if a more powerful warning was given the plaintiff would have acted on it in the light of his flat contradiction that any warning at all was given.

83. I would allow the defendants’ appeal and dismiss the plaintiffs cross-appeal.

84. I have read the judgment which has been delivered by McCarthy J. and also the judgment delivered by O’Flaherty J. It will be noted that they are in agreement on many aspects of the case although, in the end result, they come to differing conclusions. My learned colleagues speak of the vasectomy operation as being elective surgery and quite clearly the defendant Dr. Orr who supervised and participated in the vasectomy operation in this case accepts that it was elective surgery. She agreed in evidence that warnings of consequences should certainly be more exhaustive in a situation where a person is contemplating elective surgery. In such a case both my learned colleagues are of opinion that if there is a risk, however exceptional or remote, of grave consequences involving severe pain stretching for an appreciable time into the future and involving further operative procedures, the exercise of the duty of care owed by the defendants requires that such possible consequences should be explained in the clearest language to the prospective patient.

85. The evidence given by Dr. Sheehy-Skeffington who dealt with this aspect of the case and whose evidence was accepted by the learned trial judge as being a true account of oral information given to the plaintiff fails to satisfy me that the plaintiff received adequate warning of the possible consequences of a vasectomy operation, however remote such consequences might be. Furthermore, literature with which he was supplied was equally defective in this regard. I instance the question in the document which is headed “To start you thinking about vasectomy” and which reads “Does it affect your sex life?” The stated answer is “No” and there is not a word (even in the small print) to suggest that intercourse could become painful.

86. The plaintiff denied that he had received any warning from Dr. Sheehy-Skeffington but his evidence was rejected in this regard. I cannot accept the proposition, however, that his wrongful denial precludes the court from engaging in an examination of whether adequate warning was given to the plaintiff. Neither do I consider it necessary that there should be proof by the plaintiff that had a proper warning been given to him, he would not have submitted to the original operation. If he never, in fact received a proper warning his answer to a question asking how it would have affected his attitude would necessarily be hypothetical and, unless it was by any unlikely chance in the negative, the court would be entitled to come to the conclusion that the failure to give the advice was negligent and actionable.

87. In the end result, therefore, I agree with the judgment of McCarthy J.