The High Court dismissed John Winston’s negligence claim against Dr Niall O’Leary, finding that Winston had not established that the doctor failed to give adequate information before performing a vasectomy in 1989. The court also concluded that the claim failed on causation.
The judgment, delivered by Mr Justice John MacMenamin on 19 December 2006, followed a seven-day hearing. The central issue was whether O’Leary had adequately warned Winston about the risk of ongoing pain. A separate causation issue was whether a failure to warn, if proved, would have led Winston to decline the procedure.
Winston said he and his wife were told the operation was simple and that no long-term pain risk was mentioned. He described severe pain during and after the procedure and said he would have reconsidered or refused it if warned of a risk of persistent pain. O’Leary had no specific recollection of the consultations, but said his usual practice was to go through a counselling checklist with patients and their spouses, including a warning about short, medium and long-term pain. The contemporaneous checklist included “Risk of residual pain”.
The judge found that Winston and his wife were not untruthful, but that their recollections were not sufficiently reliable to establish their account on the balance of probabilities. The checklist closely matched their evidence about other matters discussed at counselling, and the judge considered it more probable that O’Leary had discussed pain as he described. The court accepted expert evidence that a warning of a small risk of residual pain was adequate without giving a percentage. It found that the evidence did not establish that O’Leary’s counselling or follow-up was negligent.
The court acknowledged that Winston had suffered long-term pain and that the vasectomy caused it. However, it found no sufficient evidence that a warning would have changed his decision. Applying the approach in *Geoghegan v Harris*, the judge considered both what a reasonable person in Winston’s position would have done and whether the evidence supported his account of what he personally would have decided. The judge found his claim that he would have refused the procedure unpersuasive in light of his conduct at the time, including proceeding after a two-week interval.
The court therefore dismissed the claim. It did not need to consider whether the principles in *Chester v Afshar* or *Thompson v Bradford* should apply.