McCarey v Associated Newspapers Ltd (No. 2)

JurisdictionEngland & Wales
JudgeLord Justice Willmer,LORD JUSTICE PEARSON,Lord Justice Diplock
Judgment Date06 November 1964
Judgment citation (vLex)[1964] EWCA Civ J1106-1
Docket Number1962 M. No. 2664/2667
CourtCourt of Appeal
Alexander Geddes McCarey
Associated Newspapers Limited
Alexander Geddes McCarey
Daily Telegraph Limited
Alexander Geddes McCarey
South Lancashire Newspapers Limited
Alexander Geddes McCarey
Liverpool Daily Post & Echo Limited

[1964] EWCA Civ J1106-1


Lord Justice Willmer

Lord Justice Pearson and

Lord Justice Diplock

1962 M. No. 2664/2667

In The Supreme Court of Judicature

Court of Appeal

Appeal from order of Thompson J. Dated 21st April, 1964.



Mr. Peter H. R. Bristow, Q. C., Mr. A. Terence Hoolahan and Mr. Alan B. Suckling appeared on behalf of the Appellant Defendants:-


For the Defendants in the first action instructed by Messrs Swepstone, Walsh & Son.


For the Defendants in the second action instructed by Messrs Simmons & Simmons.


For the Defendants in the third and fourth actions instructed by Messrs Oswald Hickson, Collier & Co.


Mr. T. Michael Eastham, Q. C., (Instructed by Messrs Culross & Co., Agents for Messrs Spencer & Holden, Blackpool) appeared on behalf of the Plaintiff (Respondent).

Lord Justice Willmer

I have asked Lord Justice Pearson to deliver the first judgment.


This is an application for a new trial on the issue of damages only in consolidated libel actions tried by Mr. Justice Thompson and a jury in April 1964. On the 12th July 1961 operate but largely similar libels on the plaintiff were published In two national newspapers, the Dally Mall and the Dally Telegraph, and two local newspapers, the St. Helens and Midweek Reporter, and the Liverpool Dally Post. The plaintiff commenced separate actions against the proprietors of the four newspapers as defendants, but these four actions were consolidated. The jury were directed by the learned judge that If they found for the plaintiff on the issue of liability, they should first determine a global sum of damages against all the defendants, and then apportion it between them. This they did, and the global sum was £9,000. They also made an apportionment of that sum between the defendants in varying amounts, but no question has been raised with regard to the apportionment.


The defendants contend that In all the circumstances the global sum of £9,000 damages was not only excessive, but so excessive that, according to established principles, the assessment of damages should be set aside and a now trial should be ordered on that issue.


The plaintiff is a bachelor of science and doctor of medicine of Glasgow, and he holds a diploma of radio diagnosis of London. He is the consultant radiologist of two hospitals, one in Birkenhead and one in Wallasey, and he is honorary assistant radiologist at ahospital in St. Helena and a member of the Birkenhead and North Worrall Medical Advisory Committee. He is also in private practice.


On the 26th May 1961 at one of the hospitals the plaintiff performed a femoral arteriogram on an elderly man, who subsequently died. A wrong substance, surgical spirit, had been Inadvertently Injected into the patient's leg instead of saline. There had been on the trolley In the operating theatre several bowls, including an unlabelled bowl containing surgical spirit. The plaintiff, having misunderstood something that was said to him, thought that the bowl contained saline. The plaintiff ought to have chocked the contents of the bowl.


There was an inquest which was resumed on the 11th July 1961. There was medical evidence that the patient's death was probably. caused by the injection of the surgical spirit. The plaintiff also gave evidence. The coroner road out a statement which the plaintiff had made, and put questions to him which he answered. The plaintiff at this stage accepted responsibility for the mistake. Then something was said which caused the coroner to rebuke somebody, but there was much conflict of evidence at the trial as to the exact course of the proceedings at this point. As the jury decided the Issue of liability In favour of the plaintiff and there is no appeal on that issue, the version given by the plaintiff and by the solicitor, Mr. Evans, who was appearing for him on the Instructions of his Scottish Medical Defence Union, must be taken to be substantially correct.


After the coroner had asked his questions and one of the deceased's relatives had been invited to ask questions and had declined to do so, the coroner invited Mr. Evans to put questions to the plaintiff if he so desired. Mr. Evans started with the question; "Whose responsibility was it to make up the trolley Before the plaintiff was able to answer, the coroner broke in and said to Mr. Evans; "Don't try and shift the responsibility". The coroner then turned to the plaintiff and asked him if it was not his responsibility to check the trolley, and the plaintiff said; "Yes, it is". Mr. Evans protested that there was no thought of trying to shift any responsibility, but that it was important to ascertain whose duty it was tolay out the trolley in the first instance. The coroner repeated that It was the doctor's responsibility to check the trolley. At the end of the inquest the coroner said that there had been an unfortunate mistake, but that there was no criminal negligence.


That was on the 11th July 1961, and on the following day the defendants' four newspapers published reports of the Incident; and I think it is right, as there are some differences in the different reports, to refer to each one of them. There was the report in the "Daily Mail" with the headlines "Don't shift blame doctor told", and then there are the words; "By Dally Mail Reporter". Then follows: "A coroner told a radiologist yesterday not to try and shift the responsibility on to someone else after a patient had died after being accidentally Injected with surgical spirit". Then in a later passage there are these words: -'Asked by the coroner, Mr. Cornelius Bolton, whoso responsibility It was to check the trolley on which the injections were, Dr McCarey Inferred that it was the duty of another member of the staff. Questioned further about this point the doctor replied that he himself should have checked the trolley and Its contents before the injection took place'.


Then there was the report in the "Dally Telegraph". The headlines were: "Doctor told not to shift responsibility. Alcohol injection death. Daily Telegraph Reporter". The report says: "A coroner told a radiologist yesterday not to try to put the responsibility for checking the contents of a hospital trolley on to someone else". There follows this passage later: "The coroner asked Dr McCarey: 'Whose responsibility is it to check the trolley Dr McCarey: 'I believe that the trolley and contents are made up by another member of the staff. Coroner: 'Please don't try and shift the responsibility on to someone else'. Questioned further, Dr McCarey replied that he himself should have checked the trolley and Its contents before the Injection took place".


In the report in the "St. Helens Newspaper and Midweek Reporter" the headlines are; "No criminal negligence, says coroner. Doctor injected alcohol. Former miner died. Reproved for trying to put responsibility on to somebody else". The report begins: "A doctorwas reproved by the coroner (Mr. C. Bolton) at a resumed inquest yesterday for attempting to shift the blame to someone else after he had admitted inadvertently injecting the wrong substance into a patient just before an X-ray examination". Later there is this passage: "Asked by the coroner who was the person responsible for checking the substances to be used in the operation, Dr McCarey started to reply that it was a nurse. He was cut short by the coroner, who commented: 'Don't try to shift the responsibility on to, someone else. It is your responsibility, surely?. Dr McCarey: 'yes, it Is', Dr McCarey was represented by Mr. J. E. Evans, solicitor".


Finally there is the report in the "Liverpool Daily Post", which has the headline: "Coroner rebukes St. Helens doctor". The material passage is this: "The coroner asked Dr McCarey; 'Whose responsibility is it to check the trolley?'. Dr McCarey; 'I believe that the trolley and its contents are made up by another member of the staff'. The coroner: 'Please don't try to shift the responsibility on to someone else. It is your duty to check the trelley yourself'".


Mr. Eastham, on behalf of the plaintiff as respondent to this appeal, has pointed out and relied upon substantially three inaccuracies in those reports or some of them. First of all, he says that the reports would make it appear that the plaintiff had said something putting the blame on a subordinate, whereas in fact the plaintiff did no such thing. Secondly, the reports would make it appear that the plaintiff had to be cross-examined in order to elicit his acknowledgment of responsibility for the mistake, whereas in truth he had himself explained that he was responsible for the mistake at an earlier stage. Thirdly, the reports would make it appear that the plaintiff was rebuked by the coroner for attempting to shift responsibility, whereas in fact the rebuke was directed against the solicitor who was appearing for the plaintiff on the instructions of the plaintiff's Scottish Medical Defence Union.


The next point to note in stating the facts is that there was a long delay on the part of the plaintiff in starting his actions. The inquest, as I have said, was on the 11th July. The reports were published on the 12th July. The plaintiff was first informed of oneof these reports at about 11 o'clock in the evening of the 13th July, which I think was the Thursday, and on that same evening he rang up on the telephone the night editor of the "Liverpool Daily Post" and made his complaint. On the following morning, Friday the 14th July, the plaintiff telephoned Mr. Evans. Mr....

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