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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Carroll v. Lynch [2003] IESC 32 (15 May 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/32.html
Cite as: [2003] IESC 32
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    THE SUPREME COURT
    Keane C.J.
    Denham J.
    McGuinness J.
    Geoghegan J.
    Fennelly J.

    167 & 200/02

    BETWEEN

    CHRISTINE CARROLL
    PLAINTIFF/RESPONDENT

    AND
    VINCENT LYNCH
    DEFENDANT/APPELLANT

    JUDGMENT delivered the 15th day of May 2003, by Keane C.J. [Nem Diss]

    1.      This is an action for negligence brought by the plaintiff, a hospital administrator, against the defendant who at the relevant time was a cardiothoracic surgeon and consultant in St., Vincent's Hospital.

    2.         The proceedings arose out of an operation carried out by the defendant on the plaintiff on the 5th June, 1996. The operation was carried out by the defendant because the plaintiff had suffered a pneumothorax, i.e., an escape of air from the lungs into the pleural cavity between the lungs and the chest wall. It appeared likely that this had been caused by what is called a "bleb", a blister of the lung tissue which can result in the escape of air. Initial treatment by means of a chest drain having been unsuccessful, a surgical procedure called "video assisted thoracic surgery" or VATS was carried out by the defendant. This is a more sophisticated form of chest surgery which was pioneered in this country by the defendant and involves the insertion of a video camera into the area of the chest and the making of "ports" or entry points for the camera and the instruments which, all going well, can be used to repair the damage. The ports are made by trocars, sharp pointed instruments, which can be removed leaving a cannula, or hollow tube, through which the video camera can be inserted.

    3.         The pneumothorax in this case was on the right side and, accordingly, the plaintiff was placed on her left side with her right arm elevated above her head, in order to enable the procedure which I have just described to be carried out. The three ports were then placed by the defendant, but at this stage there was a laceration of internal mammary vessels followed by bleeding. The defendant thereupon converted the VATS procedure into a thoracotomy, i.e., an opening of the chest with a larger incision. The incision was not so large as would have been the case had the defendant embarked initially on a thoracotomy rather than the VATS procedure, but it undoubtedly involved a greater degree of incision than would have been required using the VATS procedure alone. The defendant then stopped the bleeding, sutured the artery which had been damaged and dealt with the blebs which were causing the pneumothorax by means of small staples and excision.

    4.          No criticism was advanced of the defendant for having changed to this procedure in the circumstances which actually arose. It was, however, claimed on behalf of the plaintiff that he had been negligent as to the position in which he placed the second of the three ports. It was alleged that all three ports should have been made by him in the lateral chest wall in an area underneath the armpit, described by one of the expert witnesses called on her behalf as "the triangle of safety". However, the case on behalf of the plaintiff was that the second port had been placed in the plaintiff's breast 2.5cm lateral to the nipple and that this was clear from the defendant's operation notes and from the scarring still visible in the chest area. It was said on her behalf that this was what had caused the laceration of the vessel, followed by the bleed which necessitated the abandonment of the VATS procedure and the change to the significantly more traumatic thoracotomy. The evidence on behalf of the plaintiff was that, in the result, she suffered severe and continuing pain following the operation, which became steadily worse in subsequent months and necessitated her being treated by pain specialists and a neurologist. It was said on her behalf that, despite the various treatments which she has been given, she did not get any long term or consistent relief from pain. This, it was said, interfered significantly with her ability to carry on her work as a hospital administrator and, at the time of the trial, she was on a year's leave of absence from work.

    5.          The plaintiff had, accordingly, instituted proceedings against the defendant claiming damages for negligence and breach of duty on his part in the carrying out of the operation. The defendant was originally represented by a firm of solicitors but before the action came on for hearing they ceased to act for him and he represented himself in the trial in the High Court before Johnson J. After all the evidence in the case had been heard, the trial judge acceded to a request by the defendant that he be professionally represented when closing submissions were being made and Mr. James Nugent SC appeared on his behalf at that stage.

    6.          In a written judgment delivered on the 16th May 2002, the trial judge found in favour of the plaintiff on the issue of liability subject to a reduction of 15% and, in the result, awarded her the sum of €311,953.39 and the costs of the proceedings.

    7.         In the course of his judgment, the trial judge noted that there was no criticism of the defendant as to the manner in which the thoracotomy was performed and that the allegation of negligence against him related solely to the placing of the second port. He then went on to consider the evidence on behalf of the plaintiff of Professor Smyth and Dr. Mackey, both of whom are thoracic surgeons but neither of whom had actually carried out a VATS procedure to completion. He pointed out that Professor Smyth had given evidence that he had been the leader of a team which carried out this operation, that he had supervised the conduct of many operations of this nature and had himself on numerous occasions inserted the ports for the purpose of carrying out the operation.

    8.         Having referred to the opinion of the two independent experts that the second port should under no circumstances have been placed in the middle of the breast, the trial judge when on to consider the evidence as to whether it had in fact been placed in that position. He referred to a contention originally made by the defendant that it had not been inserted in that position and that, to the extent that the operation notes suggested that it had, they must be wrong. The trial judge referred to the fact that, when it was pointed out to the defendant that the photographic evidence indicated a scar exactly where his operation note indicated he had put the port, the defendant accounted for this by stating that this could have been the mark of a chest drain. He said that it was only when the plaintiff was examined in his (the trial judge's) presence and the presence of the two experts that the defendant finally admitted that the second port had been put in the middle of the breast at the point indicated by a scar.

    9.         It was agreed that the defendant's operation note, in addition to indicating that the second port had been inserted at a point 2.5 cm lateral to the nipple, said:

    "This port [the second port] hit the int mamm. vessels, [which] were aberrant in position….."
    10.         The trial judge referred to the evidence of the two independent experts that they were astonished to find that the internal mammary gland was in the position where the defendant said it was, but not in the least surprised to find that there was another vessel hit by the port which would have caused the bleed, having regard to the extremely vascular structure of the breast.

    11.         The trial judge then went on to deal with another aspect of this part of the case as follows:

    "This document [the operation note][which] indicated in what apparently is the defendant's own script that he had struck the mammary gland or vessel which was in an inappropriate place figured in the case when the defendant attempted to suggest to Mr. McCullough, counsel for the plaintiff, that in fact the document read query mammary gland or vessel.
    "It is quite clear that at this point the defendant attempted to introduce a false or fabricated document by having it altered to include a squiggle which he said was a query.
    "That squiggle did not appear on the original nor on the copies which had been provided to Mr. McCullough or to the court.
    "The defendant then attempted to brush off this matter as irrelevant. However, it is quite clear that the documents in the main had been photostatted, whereas the document produced by the defendant which was retained in the court file had clearly been altered by what appeared to be a biro as the indentation of the squiggle is visible to the naked eye."
    12.         The trial judge also commented on the manner in which the defendant gave his own evidence as follows:

    "Then in the course of giving his own evidence the defendant indicated that the second port was inserted for the purposes of looking up and down the chest cavity.
    "This was a completely new suggestion which had never been put or made under any circumstances to the plaintiff's experts and in my view demonstrated nothing short of dishonesty on behalf of the defendant."
    13.         The trial judge went on to say that, having had the opportunity of watching the defendant conduct his own case, give evidence and be subject to cross-examination, he was satisfied that, when it came to a dispute on questions of fact, he would not accept his evidence on any of the facts which were in dispute between the parties.

    14.         The trial judge went on to find that the defendant had been negligent in inserting the second port and that this had led to the necessity to carry out the open thoracotomy. He said that this had increased by at least 85% the likelihood of injury and pain from which the plaintiff now suffered and that damages should be recovered on the basis of 85% of the amount assessed. He found that, on the balance of probabilities, the plaintiff was never going to be pain free and that it was unlikely she would return to the level of earnings she enjoyed prior to the operation. He found that her net loss of earnings would be in the region of £170 per week and that, applying a multiplier of £860 given by an actuary, her future loss of earnings was £146,200. He allowed a figure of £40,000 for pain and suffering in the past and £40,000 for pain and suffering in the future. This, together with the other special damages, resulted in the award of €311,953.39.

    15.         From that judgment, the defendant has now appealed to this court. The plaintiff has cross-appealed on the ground that the damages awarded to her should not have been reduced by 15% as found by the trial judge.

    16.         Three of the grounds of appeal relied on by the defendant and which were the subject of written and oral submissions related to the conduct by the trial judge of the trial. It was argued that

    (a) the finding by the trial judge that the defendant had attempted to introduce a false or fabricated document was wholly unfounded and had a recurring effect on the entire conduct of the case;
    (b) the trial judge made it repeatedly clear that he was displeased by the exercise by the defendant of his constitutional right to represent himself in court; and
    (c) the attitude of the trial judge to the defendant throughout the trial was 'aggressive, sarcastic and hostile'.

    17.         It was submitted that the cumulative effect of these three factors seriously impaired, and to some extent negated, the ability of the defendant to represent himself.

    18.         Secondly, it was argued that, since Professor Smyth and Dr. Mackey had never carried out VATS surgery, they should not have been allowed to give expert evidence as to the manner in which it had been carried out by the defendant.

    19.         Thirdly, it was argued that the trial judge erred in law in holding that the ill effects alleged to be suffered by the plaintiff were the consequence of any negligence of the defendant, since, if the defendant had elected to carry out the operation by way of an open thoracotomy instead of the VATS procedure, he could not have been held to be negligent. In the result, it was submitted, any adverse consequences which the plaintiff sustained could not be said to have been the result of any negligence on his part.

    20.         Fourthly, in relation to the damages, it was argued that the plaintiff had not proved any loss of earnings and that, in addition, the trial judge had erred in law in his use of the actuarial multiplier.

    21.         In relation to the first ground of appeal, I should refer in more detail to what happened at the trial in relation to the alteration in the copy of the operation note.

    22.         The matter first arose on the second day of the trial when the defendant began to cross-examine Professor Smyth. The transcript records the following exchanges

    "Q. 232. Mr. Lynch: Mr. Smyth, it is nice to meet you and I think that we are playing with words here. When you see in my operation notes I say a queried aberrant internal mammary artery. There is a question mark in front of that. From the position that you see those scars and those ports going in at right angles to the skin, do you, who has a lot of knowledge about internal mammary arteries, see that hitting the internal mammary artery if it is in a normal position ?
    A. No.

    233Q. Would you state emphatically ….. [INTERJECTION]
    Mr. McCullough: My lord, I do not want to interrupt but I would like Mr. Lynch to point out, if he would, where the question mark appears in his operative notes.
    Mr. Justice Johnson: Yes, I cannot see the question mark.
    Mr. McCullough: We cannot read his writing and I do not see a question mark and I do not think the professor saw one when he was reporting.
    Mr. Lynch: There is the query there [INDICATING].
    A. Can you say which page?

    Mr. McCullough: I have to say, my lord, and I am careful about saying this, my lord, Mr. Lynch has pointed to something which does not appear on the copy that I have.
    Mr. Lynch: It is certainly on that copy.
    Mr. McCullough: Perhaps it could be handed into to his lordship.
    Mr. Justice Johnson: Can I just have a look at that?
    Mr. Lynch: Quite honestly, my lord, I do not think that this is significant …. [INTERJECTION]
    Mr. Justice Johnson: Mr. Lynch, I want to see it.
    Mr. McCullough: Mr. Lynch pointed out to me, as I understand it, a small black squiggle which is just to the left of the word we believe to be 'which', and it certainly, my lord, is not in the copy that I have. Perhaps I should hand into your lordship…. [INTERJECTION]
    Mr. Justice Johnson: This is most interesting. Number one, what has been handed to me here is a photostat. That which was in this book is also a photostat.
    Mr. McCullough: That is so, my lord.
    Mr. Justice Johnson: There are a number of additions to this that has been handed to me by Mr. Lynch, a number of things down the left hand side, which, on examination under a light, it is quite clear they were added by a real pen and penetrated the paper. The same applies to that matter which is now stated to be a question mark. It is quite clear looking at the back of the paper it is there.
    Mr. McCullough: Thank you, my lord.
    Mr. Lynch: I cannot see that .
    Mr. Justice Johnson: If you look under a close light you will see it, Mr. Lynch, it is a photostat and that penetrates the paper. Mr. McCullough, if that is what Mr. Lynch is relying on, I think it should be examined by professionals. I am merely passing an opinion.
    Mr. McCullough: Could I ask Mr. Lynch to produce that, my lord, when he is finished his cross-examination because….. [INTERJECTION] .
    Mr. Justice Johnson: It has been produced in court, it is now a document for the court to examine.
    Mr. McCullough: I wonder would your lordship retain that document …… [INTERJECTION].
    Mr. Justice Johnson: I will require that document to have it examined.
    Mr. Lynch: Yes, you may have it.
    Mr. Justice Johnson: You may use it for the time being, give him the photostat, but I want that kept by the court."
    23.          At a later stage in the defendant's cross-examination of Professor Smyth, the trial judge intervened to ask where the original of the document was and was told that it was either in the possession of St. Vincent's Hospital or the defendant's former firm of solicitors. The trial judge said he was issuing an order for the production of the original.

    24.          On day three, Ms. Anita Gaffney, who worked in the administration department in St. Vincent's Hospital, produced the records relating to the surgical procedures undergone by the plaintiff in June 1996, including the operating note. The trial judge having ascertained from the defendant that this was the original of the note, told him that he thought he should take legal advice from a solicitor or someone else regarding the document which he had produced the previous day.

    25.         The trial judge returned to the topic later on the same day, saying to the defendant (transcript, p.65).

    "Mr. Lynch, I urged you this morning to take legal advice about certain things. It is not about this case, but it is about the document which does not appear to be the same as the original, the copy of which you tendered yesterday to the court and to Mr. McCullough having changes in it, purporting to indicate that there was a query over one of the matters which was said here. That is a matter which I think you should take advice about, because I certainly have no option but [to ]take certain steps about it."
    26.          The defendant said that he had handed the document over in good faith, but the trial judge said the matter would have to be further investigated and again said that the defendant should take legal advice on the matter.

    27.          On the following day, the defendant told the trial judge that he had been in contact on the telephone with a solicitor concerning the copy of the operation sheet. The trial judge again repeated that he had just been concerned to warn the defendant that "some things may happen".

    28.          On day four of the trial, the defendant gave evidence and was asked by Mr. McCullough in cross-examination about the alteration to the copy of the operation note. In the course of further exchanges, the trial judge told the defendant

    "Be very careful because you may leave yourself open to criminal prosecution if you say anything, so I will warn you about it."
    29.          In the course of further exchanges, the defendant said

    "Look, when I was preparing for this case – I have been over 20, 30, 40 times trying to see that every dose of every drug is right and every comment is …… I am going round the case ticking this off and querying that and going this and then I go back to my original copy and I see that it is not in my original copy and, my lord, I was not trying to deceive anybody."

    Mr. Justice Johnson: Well, this was the document produced by you in court and it has quite clearly been interfered with subsequent to it being photostatted. It does not bear any relation to the original and you produced it – no one else."
    30.          The cross-examination continued on other matters, but the trial judge returned to the question of the alterations in the document towards the end of the cross-examination. The exchanges concluded as follows:

    "Mr. Justice Johnson: Can I have a look at that piece of paper?

    Mr. Lynch, who altered that?

    A. I can't recall altering it, but I presume it must have been me. I cannot recall that, my lord. I just cannot recall that. What do you really think genuinely, my lord, looking at that squiggle on that page? Now, be honest, be fair."

    "Mr. Justice Johnson: It is not a question for me to decide that, Mr. Lynch. There are other people who can decide that."
    31.          A finding by a trial judge that a surgeon deliberately falsified his record of an operation carried out by him with a view to misleading the court is clearly one of the utmost seriousness. It has to be said that there was no evidence whatever to justify such a finding in the present case. The query placed opposite the words in question by the defendant on his photocopy of the original was one of a number of markings on the photocopy in his possession which the defendant had made when he was reviewing his notes of the operation in preparation for the trial. It was perfectly understandable that, when the words in question became the subject of discussion during the course of the trial, the defendant should have become confused as to whether the squiggle indicating a query appeared in the original document of which he had a photocopy or had been added by him subsequently, in common with the other markings on the photocopy.

    32.          If this constituted an attempt by the defendant deliberately to falsify a record of the operation with a view to misleading the court, it must have been obvious to a person of the most limited intelligence, let alone somebody in the position of the defendant, that it could not possibly succeed. It must have occurred to him that the alteration he had made to his copy would not appear on any of the other copies and that, if he persisted in claiming that it was an accurate photocopy of the original, the original could always be produced to demonstrate that he was lying.

    33.          Unfortunately, the trial judge does not appear at any stage to have entertained the possibility that this may have been a perfectly genuine error on the defendant's part in supposing the query to have appeared in the original as well as in his photocopy. That led to a succession of veiled warnings by the trial judge to the defendant that the matter might be referred to the prosecuting authorities on the ground that the defendant had committed a serious criminal offence.

    34.          The trial judge repeatedly during the course of the hearing sharply reproved the defendant for failing to adhere to courtroom procedures. It is inevitable that trial judges will become, to some degree, exasperated by the apparent inability of lay litigants to recognise that there are certain basic procedures which must be adhered to by them if a trial is to be conducted in an orderly and efficient manner and, in the present case, this was undoubtedly compounded by the trial judge's understandable assumption that a person in the position of the defendant should appreciate that more readily than others. However, it has to be said that the manner in which he voiced these strictures was not such as to inspire any confidence in the defendant that the trial was being conducted fairly from his point of view.

    35.          The defendant, in the course of his direct evidence, agreed with the trial judge that he had put forward an explanation of the position of the second port which he had not put to Professor Smyth in cross-examination. The trial judge was, of course, quite entitled to treat the defendant's failure to put this to Professor Smyth in cross-examination as a matter to be taken into account in assessing the plausibility of the suggested reason for the position of the second port. But it is a fact of life that lay litigants do not always appreciate the importance of putting their case in full in cross-examination and to treat this as evidence of "nothing short of dishonesty on behalf of the defendant", as the trial judge did, was, it has to be said, a disproportionate reaction.

    36.          The conclusion is unavoidable, in my view, that this trial was unsatisfactory and that there must be a re-trial. In the circumstances, it is unnecessary to come to any conclusion on the other grounds of appeal in relation to both liability and damages relied upon the defendant.

    37.          I am conscious of the difficulty that a new trial will create for the plaintiff in circumstances which are none of her making. However, it is essential in any case, but particularly in a case of such importance to both the plaintiff and the defendant, that the trial is conducted in a manner which, objectively viewed, can be regarded as fair to both parties. That did not happen here.

    38.          I would allow the appeal, set aside the judgment and order of the High Court and order a re-trial. I would make no order on the notice of cross-appeal.

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