High Court of Ireland Decisions

1. In this action the plaintiff claims damages for personal injury, loss and damage arising out of negligence and breach of undertaking by the defendant in and about a programme broadcast on radio by it on 1st October, 1995. Liability is conceded and the only issue for determination is an assessment of damages.

2. The evidence establishes on the balance of probabilities the following facts and the conclusions I have made based thereon:-

3. The plaintiff is a married man now aged 44 years. He resides with his wife and two children - boys of 11 and 18 years. He holds a management position in Guinness Ireland by whom he has been employed for many years. He is an international swimmer of high standing. In course of his career he has won many major national and international events. He has also been a senior swimming coach and has trained Irish swimmers for participation in the Olympic Games in 1988 and 1992. After the Olympics in the latter year he retired from coaching and returned to competitive swimming for reasons which are referred to hereunder. From then until the defendant's radio broadcast on 1st October, 1995 the plaintiff concentrated on national and international Masters events. These are competitions open to senior swimmers in four year age groups from 25 years and upwards. They are serious prestigious events involving, inter alia, striving for world records. The plaintiff's regime from return to competitive swimming in 1992 comprised four hours training per day in the Guinness pool, i.e., two hours before and after his working day there. He was then 37 years of age. He re-established his full fitness and expertise and had important successes in Masters events during the period up to September, 1995 including the establishment of three World and five European records in the 35-39 age group. The plaintiff's primary objective was to break the world Masters record for the 40-44 age group in the 1,500 metres freestyle. It stood at 17.00 minutes and by September, 1995 he had already improved his time from 17.35 minutes to 17.07 minutes for that distance. He proposed to compete in two international Masters events in the early part of 1996 and his objective was to break the record in one or other of them. His rigorous daily training was directed towards that achievement and the omens looked good.

4. The plaintiff's serious swimming career commenced when he was 9 years old. He came under the aegis of one, George Gibney, who was a leading swimming coach in Ireland at that time and who was attached to the Guinness club which the plaintiff had joined. He looked up to and respected Gibney and it seems treated him as a father figure. Gibney seized upon the opportunity which that adulation gave him and by degrees he subjected the plaintiff to sexual abuse of a most grievous kind for four years until the boy was 14 years old. At that time Gibney moved on to a different appointment. Their ways parted and the abuse ended. The plaintiff was seriously traumatised by what had been done to him by Gibney but he told no-one at that time about it and in particular he did not tell his parents or anyone in authority. When the abuse ended he remained silent and he endeavoured to rebuild the psychological damage done to him as best he could without counselling or assistance from anyone. Over the years his swimming career prospered and at or about age 18 he obtained a sports scholarship to Villanova University in the U.S.A. He was a student there for four years and had a successful career swimming for his university in college events. He continued serious competitive swimming for some years after return to Ireland having graduated from Villanova with a business degree. He entered employment with Guinness and in 1979 married his wife, V. He had a happy, successful marriage.

5. The plaintiff gravitated into coaching in or about 1980. This entailed some professional contact with Gibney who was the senior international coach in Ireland at that time. It appears that this caused psychological trauma to surface again as to his sexual abuse by Gibney which to a substantial degree the plaintiff had succeeded over the intervening years in burying in his mind. He feared that Gibney might be abusing other young swimmers (a belief which subsequent events indicated was well-founded) and he confronted the wrongdoer. Gibney responded with indifference and soon afterwards circulated rumours, which the plaintiff states were untrue, that he (the plaintiff) was seeking to take Gibney's job as chief coach for the Irish Swimming Association which ruled the sport at that time. These rumours became a topic of gossip in swimming circles and had the effect of reintroducing serious psychological and emotional strain into the life of the plaintiff. In 1993 he broke down and for the first time told his wife of what had been done to him as a child by Gibney. I am satisfied that from then she has been a source of vital support in helping him rebuild his emotional and psychological life. In the end the plaintiff decided to remove himself from the controversy which had been stimulated by Gibney. After the 1992 Olympics he retired from coaching and decided to re-enter the world of competitive swimming in Masters events. It is not in contest that from his early childhood serious competitive swimming has been a crucial part in the plaintiff's life. For example, at the tender age of 11 and 12 years he won the Liffey Swim in successive years against adult competition. He loves the sport; is successful and derives great pleasure and satisfaction from competition. It was also conceded on behalf of the defendant at the trial that competitive swimming has been for the plaintiff an important avenue towards restoration of psychological and emotional adjustment and peace of mind - though it is not referred to in a report furnished by a psychologist who gave evidence for the defendant to which I refer hereunder. Having heard and observed the plaintiff I am satisfied that he is an honourable, truthful and fair-minded man. He is also intelligent. I accept his evidence as being a truthful, fair and objective account of the events he described. Mrs. W., the plaintiff's wife, also impressed me by her intelligence, fairness and probity. I accept the truth of her testimony.

6. The return to competitive swimming, later aided by occasional psychiatric treatment from Dr. Peter Fahy which is on-going, helped the plaintiff to contend with the serious emotional setback he had suffered through the re-emergence of Gibney into his professional life in swimming. I am satisfied that from late 1992 until September, 1995 the plaintiff had travelled substantially along a difficult road to psychological adjustment and peace of mind. The quest for and attainment of important competition successes in those years and particularly his remarkable dedication in attaining the World and European Masters records at various distances clearly made a major contribution towards his emotional rehabilitation. Continuing sporting endeavour in Masters events probably would have remained open to him for many years, perhaps into old age, having regard to his very exceptional degree of fitness in 1995.

7. In 1993 Gibney was investigated by the police about a number of allegations of sexual abuse by him of young swimmers in his care - male and female. He was compelled to resign as coach and he left Ireland. It appears that he avoided prosecution for sexual crime against the young on a technical legal ground. This upset the plaintiff who was distressed that Gibney had appeared to get away with his wrongdoing and had not been brought to justice. Similar allegations were made about another prominent Irish swimming coach who was duly prosecuted and convicted of such offences. The plaintiff had no direct involvement with the latter.

8. In 1995 the BBC wished to broadcast a programme about sexual abuse of young swimmers by a leading English coach in the U.K. and by Gibney in Ireland. The plaintiff who at all times has firmly believed that in the interest of other potential victims here and elsewhere it was important to expose Gibney, was approached by Donal McIntyre, a senior official employed by the defendant, and asked if he would consent to being interviewed about Gibney's criminal behaviour for inclusion in the programme. He agreed to do so provided that he was not identified. He pointed out to Mr. McIntyre that he had previously given similar radio interviews on RTE and that on those occasions his voice had been dubbed and his identity had not been disclosed. He also referred him to a recent article in the Sunday Tribune in which he had given information to the journalist on condition that his anonymity would be preserved. That condition had been met. Mr. McIntyre undertook on behalf of the defendant to keep the plaintiff's name out of the broadcast and to preserve his anonymity. On 28th September he was interviewed by the broadcaster of the programme, Brendan Pittaney, in the Shelbourne Hotel and he furnished specific details of gross sexual abuse of him by Gibney and details of how the abuse had developed from the beginning. The programme also contained specific details of gross sexual abuse by Gibney suffered by a young female swimmer. She too had been promised anonymity by the BBC. Three days later on Sunday, 1st October, 1995 the programme was transmitted as part of a well-known sports programme. Contrary to the undertakings given by the defendant as to the plaintiff's anonymity he was named several times and his own voice was broadcast. The female swimmer was similarly treated. On the day before the broadcast transcripts of the programme were sent to the print media. The errors as to disclosures of identity could have been corrected before the broadcast but were not. Soon after the transmission two officials of the BBC phoned the plaintiff and apologised for the disclosure of his identity in the programme.

9. The effect on the plaintiff of the broadcast and of the defendant's breach of trust was shattering. Not even his own mother had been aware before then that he was one of the children who had been sexually abused by Gibney. The plaintiff and his wife have described in evidence the devastating effect it had on his emotional stability and human relationships with his family and in the wider context with friends and acquaintances. Mrs. W. has described the plaintiff as being before the broadcast a loving husband with whom she had a very good relationship. He also was a good father who had a warm active relationship with his sons. She and they loved him and the boys were proud of his achievements in the world of swimming. As Mrs. W. described it "They put him on a pedestal. To them he was everything". Prior to the broadcast neither of them had known anything about the sexual abuse of their father as a child. It was stated by Mrs. W. that she and the plaintiff had been through a difficult time in the years before the broadcast caused by his psychological trauma and its re-emergence. She backed him up in everything he did. She stated that by September 1995 he had reached a stage that he was coping well with his problems and they had "started to get our lives back together again". She also stated that her husband's return to competitive swimming "helped him greatly in coping. It was the most important thing to him".

10. Mrs. W. deposed that in consequence of the broadcast and disclosure of his identity in the content of his grievous sexual abuse by Gibney when a child, the plaintiff became depressed and withdrew into long silences. He became difficult with her and the children. His moods she described as "terrible" and he became prone to anxiety attacks. All of these were new symptoms which he did not have before the broadcast. He was unable to deal with the concept of people knowing about what Gibney had done to him. He shunned company as much as possible - even his colleagues at work. He was unable to face up to the publicity surrounding competitive swimming. He gave it up completely and has not returned to it since. His swimming is now limited to a period of training early each morning by himself to retain fitness and to have some release from his mental trauma. Mrs. W. summed up the depth of misery caused by the broadcast by commenting that all of the work which she and her husband had done towards his emotional rehabilitation had been lost.

11. It also emerged in evidence that harm done by the broadcast was seriously aggravated by the damage it did to the relationships between the plaintiff and his sons and also with his mother. His sons were at the time of the broadcast aged 14 and 7 respectively. Neither knew anything about the Gibney abuse until they learned of it from friends after the broadcast. The junior boy was too young to understand the full significance of what he was being told. The elder boy, however, did understand and according to his mother was greatly upset by it. The plaintiff was so traumatised that he was unable to deal with the problem with either son and it was left to Mrs. W. to do so. A cogent illustration of the plaintiff's inability to relate as a normal father with his children and to socialise with people emerged from Mrs. W.'s evidence. Prior to the broadcast it was the plaintiff's practice to bring his younger son, a rugby player, to matches at his school where he was on a team. His father continued to do so after the broadcast but instead of joining other parents and supporters on the sideline in urging on his son's team as before, he remained in his car in the car-park until his son returned after the game and he drove him home.

12. As to Mrs. W. Snr; at the time of the broadcast she was about 66 years of age and had been widowed for 16 years. She had no prior knowledge that her son had been sexually abused as a child by Gibney. She learned of what had been done to her son from a third party after the broadcast. Mrs. W. Jnr. has described that her mother-in-law was shattered by the revelation. It caused her huge distress including feelings of guilt that she might bear some responsibility for what had happened to him as a child. The plaintiff in turn became greatly distressed about the effect of the disclosure on his mother - so distressed that he was unable to comfort her or discuss the situation with her. It was necessary for his wife to adopt that role. However successful future therapy may be for each of them, the relationship between a son with his mother has been permanently damaged. This in itself is a significant tragedy for the plaintiff. It is also likely that the relationship between the latter and his elder son in particular will never be the same again as a result of the broadcast.

13. In due course the plaintiff consulted his solicitors, Messrs. H.J. Ward & Co., and they prosecuted this action on his behalf. They also acted for the female swimmer who had been wrongly identified in the broadcast and who had suffered psychological damage as a result of it. They brought similar proceedings on her behalf against the defendant. They did not contest liability in that case either and ultimately it was settled out of court before trial.

14. As part of their preparations for the trial, Messrs. Ward asked Dr. Peter Fahy to investigate the matter and furnish a professional opinion as a consultant psychiatrist/analyst as to the overlay of psychological and emotional damage attributable to the broadcast. Messrs. Hayes McGrath, solicitors for the defendant, instructed Mr. Peter Colquhoun, a consultant psychologist, to interview the plaintiff and carry out a similar investigation for the defendant. He had two sessions with the plaintiff on respectively 8th December, 1997 and 7th January, 1998 each of which lasted for about two hours and were conducted in Mr. Colquhoun's consulting room. The plaintiff was alone on both occasions. The psychologist did not regard it as necessary to seek an interview with Mrs. W. or to consult with Dr. Fahy with whom the plaintiff then had an on-going professional relationship in connection with his psychological trauma.

15. In course of his evidence the plaintiff stated that at both sessions Mr. Colquhoun had delved deeply into the minutiae of the gross sexual abuse to which he had been subjected by Gibney. This behaviour was found by the plaintiff to be so obtrusive and oppressive that on each occasion it caused him to break down and weep. The psychologist responded by saying to him that it was necessary to investigate such details and he regretted the distress which that caused. He then warned the plaintiff that at the trial of the action he would be subjected to similar cross-examination about such intimate details by counsel for the defendant. This warning caused the plaintiff additional anguish which he had to contend with for the following 15 months until the action came to court. I regarded that evidence as most alarming indeed because, if true, it amounted either to grievous professional misconduct at worst or at best gross negligence by a witness who had been introduced to this litigation on behalf of the defendant as a reputable expert whose conduct in the investigation of the plaintiff's claim and testimony at the trial the court could rely upon as being competent, truthful, fair and objective. It also raised an issue as to whether or not there was any sinister motive behind alleged oppressive questioning at both interviews regarding the same intimate details of gross sexual abuse of the plaintiff as a child which caused him to break down and weep on both occasions and whether that alleged tactic came about for the purpose of laying a foundation for the warning about what might be expected in cross-examination from counsel for the defendant at the trial. In short, what emerged from the plaintiff's evidence opened up a fundamental question regarding the integrity of Mr. Colquhoun's investigation, the reliability of the professional opinion which he subsequently expressed to the court in evidence and which is also contained in a detailed report dated 13th January, 1998 based on both interviews with the plaintiff which the witness sent to Messrs. Hayes & McGrath. The report was furnished to the court at the commencement of the psychologist's evidence. I took the view that the question of Mr. Colquhoun's integrity, seriously challenged as it was by the plaintiff's evidence, raised a matter which was fundamental to the attainment of justice in this action and was an issue of such potential gravity as to entitle the court by questioning Mr. Colquhoun and examining his records to ascertain his response to matters relevant to that issue. I also perceived that in fairness to Mr. Colquhoun that he should be given an opportunity to respond to the various matters about which I had particular concern. I exercised what I perceived to be my right, and indeed my duty, to investigate an issue of possible fundamental injustice occasioned by the alleged conduct of a witness on whose purported expert testimony the defendant relies solely in its defence to the plaintiff's claim for damages. I questioned the witness on relevant matters and obtained the notes of his interviews with the plaintiff at the conclusion of his evidence-in-chief. I also questioned him again at the conclusion of his cross-examination.

16. The witness stated that it was necessary for him to investigate the extent of psychological harm done to the plaintiff by reason of Gibney's sexual abuse and to assess the nature and extent of emotional damage which the plaintiff was suffering at the time of the broadcast. Within the parameters of proper conduct, there is no doubt that he was fully entitled so to do. He stated that it was also necessary to ascertain details of the harm done to the plaintiff by reason of the broadcast and that there should be a proper balance between both aspects of the investigation. He accepted that it was his function to measure the nature and extent of additional psychological harm suffered by the plaintiff on account of the broadcast. Mr. Colquhoun admitted that he had investigated in depth on the occasion of both interviews the minutiae of the gross sexual abuse perpetrated by Gibney on the plaintiff and that this had caused the latter to break down and weep on each occasion even though Mr. Colquhoun stated he had conducted his questioning in a sensitive manner. He was unable to offer a tenable explanation for raking through such minutiae again at the second interview knowing as he did that that course of action probably would cause serious distress for the plaintiff as it had before. His purported explanation was that he may have needed some additional element of detail regarding loathsome conduct by Gibney with a child over 30 years after the event. That was patently absurd. Mr. Colquhoun said that he may have issued the warning to the plaintiff about what he might expect in cross-examination at the trial but he does not recall having done so. He stated that he did not know whether counsel for his client would be permitted by the court to pursue such a line of cross-examination if he had attempted to do so and he conceded that the warning would have added to the distress of the plaintiff over the ensuing 15 months pending trial of the action.

17. Mr. Colquhoun conceded also that the damage resulting from the broadcast done to the relationship between the plaintiff and his mother added significantly to the harm done to the former by the broadcast and should have been examined by him as part of a proper comparative assessment of the overlay of psychological harm resulting from the defendant's negligence. He was aware that the plaintiff had an elderly mother but he did not think of raising any question with him about the possible effects of the broadcast on that relationship.

18. Mr. Colquhoun agreed that the relationship between the plaintiff and his sons before and after the broadcast was another area which ought to have been investigated in detail. Likewise, the relationship between husband and wife pre and post broadcast. He also conceded that he had not carried out any detailed investigation regarding the plaintiff's progress and intentions in the matter of competitive swimming since he returned to it in 1992 and the extent of the beneficial effect which that had had on the plaintiff's psychological rehabilitation. The witness agreed that the vast bulk of the 26 pages of notes which he made at his interviews with the plaintiff related to his pre-broadcast psychological state. It was indeed obvious from the notes that little or no effort appeared to have been made by the witness to assess with any degree of accuracy or depth the post broadcast overlay of psychological trauma suffered by the plaintiff.

19. A further alarming matter was referred to by Mr. Gillhooly, S.C., leading counsel for the plaintiff, when the court sat for the second day of the trial. He stated that the female swimmer who had also brought proceedings against the BBC arising out of the broadcast had told him and would give evidence to the effect that she also had been subjected to four hours of interrogation by Mr. Colquhoun on behalf of the defendant in equal two hour sessions. I was told that she would say that on the first occasion her husband was with her and nothing objectionable occurred, but that on the second occasion when she was alone the minutiae of grievous sexual abuse which she had been subjected to by Gibney as a child was investigated in depth to the great distress of the lady. I was informed that , like the plaintiff, she also would state that Mr. Colquhoun had warned her that there would be a repetition of such interrogation by counsel for the defendant at her trial. I was also informed by counsel the evidence would be that the psychologist then told the proposed witness that if she went on with the trial it would result in her mother learning about the abuse - something which it appears he knew that the interviewee was anxious to avoid. These allegations were put to Mr. Colquhoun. As in the case of the plaintiff, he did not challenge their veracity and admitted that he might have said such things but could not remember them. When it emerged that the veracity of the proposed evidence would not be challenged I decided that in fairness to the lady concerned it would be unfair to put her through the obvious distress of having to give evidence on such matters. Her testimony was also unnecessary on the ground that the warning about cross-examination referred to by Mr. W. had not been challenged by Mr. Colquhoun and did not require the corroboration which the other plaintiff's evidence would have provided. Apart from the testimony which she might have given there was also an element of corroboration provided by Ms. C.W., who is a friend of the plaintiff and a senior swimming coach. The plaintiff had joined her Masters Club late in 1992 and trained for record breaking. She gave evidence corroborative of that given by the plaintiff and his wife about his emotional state and his situation before and after the broadcast. She deposed that he also told her about what Mr. Colquhoun had said he might expect on cross-examination at his trial. He was very distressed and told her that he could not cope with what had been said to him in that regard.

20. Mr. Colquhoun was asked to comment on the Summary and Opinion as expressed in his report to Messrs. Hayes & McGrath. There are six numbered paragraphs the first of which commences:-

21. The witness sought to stand over that assessment, save that he wished to resile from the word "vast".

22. The second point is as follows:-

23. That observation is incorrect and if Mr. Colquhoun had troubled to enquire he would have learned that at the time of his examinations the plaintiff was having on-going treatment from time to time from Dr. Fahy.

24. The next point is that:-

25. I interpreted this observation as meaning Mr. Colquhoun was expressing the opinion that the plaintiff was exaggerating the effect of the programme on him. The witness did not agree with that interpretation and stated that he really meant something different which he tried to explain to me but I was unable to comprehend. The witness went on to add:-

26. That conclusion, like his first, presupposes that a detailed assessment of the effects of the programme on the plaintiff had been made by Mr. Colquhoun whereas in fact he had not done so. The witness went on to state:-

27. I accept that that is a bona fide observation which may be well founded.

28. The fourth point made by Mr. Colquhoun is that:-

29. In the absence of a balanced pre and post broadcast assessment of the plaintiff, that conclusion has no foundation.

30. The fifth point made by Mr. Colquhoun is as follows:-

31. This is followed by a similar observation:-

32. Those observations constitutes the only contribution of any value made by Mr. Colquhoun in his expert investigation of the plaintiff's claim.

33. At the commencement of the trial on the second day, Mr. Gillhooly made an application to amend the statement of claim by including a claim for aggravated damages on the basis of evidence which has emerged at the trial and which introduces an element of wrongdoing which justifies an assessment of aggravated damages. It is submitted that there are two elements of alleged misconduct by Mr. Colquhoun which justifies an assessment of such compensation. The first is summarised as being the conduct of a wholly unbalanced purported investigation of the harm done to the plaintiff by the defendant's broadcast and in particular unnecessary in-depth investigation of the minutiae of the dreadful sexual abuse which the plaintiff suffered in childhood over 30 years ago and which caused unnecessary distress for the plaintiff at his interviews without any justifiable reason. The second factor which it is submitted opens the way for aggravated damages relates to substantial additional distress caused to the plaintiff by the warning about what would be done to him in cross-examination at his trial.

34. Mr. McCullough, S.C., leading counsel for the defendant, objected to any such amendment at a late stage in the trial. He pointed out that in a letter written by Messrs. Ward to Messrs. Hayes McGrath dated 16th September, 1998 on behalf of the plaintiff and the female claimant, although, inter alia, complaint had been made about the distressing nature of some aspects of the psychologist's investigation, there was no reference to any warning about what would happen to the plaintiff on cross-examination at the trial and the defendant had no pre-trial knowledge of that matter. I decided that I should not rule upon the application until I had heard all of Mr. Colquhoun's evidence. At that stage he was awaiting cross-examination by Mr. Gillhooly.

35. In a Law Reform Commission consultation paper on Aggravated, Exemplary and Restitutional Damages published in April, 1998 aggravated damages are conveniently defined as follows at paragraph 1.06 at page 5:-

36. I accept that statement as an accurate portrayal of the state of the law as to aggravated damages in this jurisdiction. There is no doubt that there is evidence of harm done to the plaintiff by reason of the alleged misconduct and gross negligence of Mr. Colquhoun for whom the defendant must accept vicarious responsibility. In the letter to which I have referred the defendant was put on notice in respect of the first category of complaints made against their expert witness and, therefore, there is no question of being taken by surprise in that regard. As to the alleged warning about the nature of cross-examination which the plaintiff could expect; he is a lay person and I am informed by Mr. Gillhooly that his client made no specific complaint to his solicitors in that regard because he did not realise that it was wrong for Mr. Colquhoun to issue any such warning. Bearing in mind that the plaintiff's evidence about the warning is not disputed, the question of investigating the matter for the purpose of calling contra evidence does not arise. Furthermore, it would not be fair to shut out a plaintiff from aggravated damages to which he might otherwise be entitled merely because as a lay person he did not appreciate the legal significance of the wrong that had been done to him. I allowed the proposed amendment including a late addition to the printed version which I had received.

37. In the light of the plaintiff's evidence which I accept and which is corroborated as to the warning about probable cross-examination by Ms. C.W., I have come to the following conclusions about the defendant's expert witness:-

38. Mr. McCullough has submitted that the trial has been conducted unfairly and that I should discharge myself on that account. I refused his application. The gravamen of his complaint is twofold. First, that I had pre-judged issues raised as to his expert witness before the latter had completed his evidence. I reject that contention which is entirely without foundation. In fairness to Mr. Colquhoun I considered that it was proper to put to him all matters which caused me concern in the fundamental area of his integrity and competence which had been opened up by the plaintiff's evidence - so that he would have an ample opportunity to respond to all such matters as he saw fit. I made no judgment on the issues in question until he had completed his evidence.

39. The second submission made by Mr. McCullough in support of his application was that, despite the gravity of the issues in question which fundamentally challenged the probity of the defendant's defence and the propriety of its investigation of the plaintiff's claim, that the court had no right or power to investigate such issues by questioning the expert witness on matters which touch upon the defendant's fundamental obligation to conduct its defence including pre-trial professional examinations of the plaintiff honourably and in accordance with basic principles of fair procedures and justice.

40. Mr. McCullough relied upon the judgment of McCarthy J. who was one of the judges of the Supreme Court in an appeal from a judgment of mine in the High Court in Donnelly -v- Timber Factors Limited & Rogers , [1991] 1 I.R. 553. He did not inform me but I take no point about it that the dicta relied upon was from a minority judgment and that the majority of the court had upheld my judgment although it is proper to add that one criticism which I had made of the defendants' orthopaedic surgeon was based upon a misunderstanding by me of a particular fact. It was found, inter alia, by O'Flaherty J. who delivered the majority judgment that my interventions at the trial had not been unreasonable and, apart from the error of fact to which I have referred, he stated that he did not accept any of the other criticisms that had been made about my conduct of the case. The judgment of McCarthy J. contains an observation that:-

41. It is, I believe, proper to point out that the performance of the orthopaedic surgeon of which I had been critical in my judgment (erroneously as to one particular) was very far removed from the gravity of the situation which has emerged in this case. I venture to think that the spancelling of judicial intervention suggested by McCarthy J. would have been re-drawn by him in the context of this case and he would have been quick to regard it as one of the "rare occasions" to which he referred. Having sat at the feet of that great man of immortal memory, who had an endearing fondness for coining judicial bon mot, I had the enormous good fortune as a tyro in the law to learn from him the principles of honourable behaviour in litigation which he regarded as being of fundamental importance.

42. For reasons which I have already specified in this judgment, I believe that my conduct of the trial was not unfair to the defendant or to their witness and that my conclusions about Mr. Colquhoun's part in these proceedings are well-founded having regard to the uncontroverted facts which have emerged in evidence.

43. In the light of the overlay of serious harm done by the broadcast to the plaintiff's psychological and emotional state to which I have already referred, including the destruction of the substantial rehabilitation which had taken place since he had returned to competitive swimming three years before the broadcast; damage to close family relationships some of which are likely to have permanent consequences; depression; loss of confidence; inability to react comfortably with friends, acquaintances and the wider public, and loss of the joy and fulfilment which the plaintiff derived from competitive swimming, it is beyond controversy that the broadcast caused grievous harm, misery and distress to the plaintiff and ruined much of his enjoyment of life. I accept Dr. Fahy's opinion that the plaintiff's life has been very badly affected by the broadcast and has been shattered by the disclosures about him which were part of the programme. Dr. Fahy stated that the plaintiff is bound to remain stigmatised but if as a result of on-going frequent therapy he can come to terms with his troubles in three years from now he will be doing well and hopefully he will be able to get back into competitive swimming then. The future for the plaintiff is, therefore, reasonably encouraging and frequent therapy will help him to continue his journey towards emotional tranquillity, self-esteem and peace of mind. It seems that he has quite good prospects of reaching that objective in about three years from now when there are also fair prospects of his being able to resume competitive Masters swimming again. But at best he will have lost about six years of satisfaction in life of the quality he was enjoying at the time of the broadcast. He was still emotionally damaged then but he had travelled far along the road to inner tranquillity. It must be truly shattering in such circumstances to find oneself back at square one. It is evident that he will require great courage and support to rise again but Dr. Fahy believes that he has the necessary strength of character. I assess general damages at £75,000 to which should be added agreed specials of £500.

44. There remains the question of aggravated damages for:-