The Supreme Court awarded David Philp €50,000 in aggravated damages after finding that a doctor altered a clinical note and that the doctor’s legal advisers failed to disclose the change before trial. The award was additional to the compensatory damages set out in a separate judgment by Justice Fennelly, with which Justice McCracken agreed.
The judgment, delivered by Justice McCracken on 17 December 2004, dealt only with whether the defendants’ conduct in preparing and presenting their case justified aggravated damages. The Court said the award was not based on the degree of negligence in the underlying claim, but on conduct after the negligent acts.
The dispute concerned a clinical note from a consultation on 12 July 2001. The doctor, Peter Ryan, acknowledged that he added the words “PSA 6/52” in December 2002, after receiving a solicitor’s letter threatening legal action. He said the addition recorded a plan for Philp to have a prostate-specific antigen test in six weeks. Under cross-examination, however, Ryan said he could not remember the consultation and could not say that he had instructed Philp to have the test.
The trial judge had found, on the balance of probabilities, that Ryan inserted the note after receiving the solicitor’s letter, believing it would assist his defence. Justice McCracken described that as a serious finding: that Ryan knowingly changed a document intended for use in court proceedings to help his case.
The alleged six-week test instruction had also appeared in a case summary Ryan prepared for a medical expert and in documents sent to Philp’s legal advisers. These included a notice asking Philp to admit that the instruction had been given, interrogatories, and a response to a request for particulars. The judgment said the expert learned of the alteration before giving evidence and condemned it.
Justice McCracken found that Ryan’s legal advisers had been told of the alteration one to two weeks before trial but did not inform Philp’s solicitors. He said the conduct could have made the defence appear stronger and might have discouraged Philp from pursuing the case or led him to settle for less. The alteration came to light during the sixth day of the hearing when the trial judge asked to see the notes and Philp’s counsel requested the originals.
Although Philp had not given evidence about the effect of the misinformation, the Court inferred that it had added to the stress and anxiety associated with his illness and claim. It held this was a case in which existing damages had been aggravated by improper conduct and awarded €50,000 in addition to the basic compensation. The judgment addressed the aggravated-damages issue; it did not restate the amount of the underlying award.