General Damages
Cases
McArdle v. McCaughey Bros. Ltd.
[1968] IR 48
O’DalaighC.J. 48
This is an appeal by the plaintiff against a jury’s award of damages on the ground of inadequacy. The plaintiff, who described himself as a precast worker, was injured in the course of his employment on 19th September, 1966. He was struck in the left eye while unloading scaffolding and his eye was seriously damaged, He was taken to the Eye and Ear Hospital, Dublin, and five days later, on the 24th September, 1966, his eye had to be removed. He was discharged on 9th October, 1966, and some weeks later an artificial eye was fitted. The plaintiff was 581/2 years old at the date of the accident.
On the 5th November, 1966, while walking in the street, he collapsed due to a cerebral haemorrhage. On this occasion he was taken to the Louth County Hospital where he was detained as a patient until 17th December, 1966. He lost his memory for a week as a result of the cardiac attack and his left side was paralysed. On discharge he could walk, his arm was still stiff and his leg, as he said, was not too bad. The plaintiff had to return to hospital for five days in June, 1967, because of his heart condition.
The trial took place on 4th July, 1967, before Mr. Justice Henchy and a jury. The trial judge divided the question of damages into four parts which, with the jury’s answers, were as follows:
(1) Loss of earnings and medical expenses to date
Answer £519 9 6
(2) Loss of earnings in future
Answer £1170 0 0
(3) Pain and suffering and loss of enjoyment of life to date
Answer £500 0 0
(4) Pain and suffering and loss of enjoyment of life for the future
Answer £500 0 0
___________________
Total £2689 9 6
After deduction of £145 for workmen’s compensation, judgment was given for a net sum of £2,544 9s. 6d. The defendants had lodged a sum of £2,571 with their defence and judgment was therefore entered for the defendants with costs from the date of lodgment.
Before the accident and unknown to himself, the plaintiff was suffering from high blood-pressure and his expectation of life was then 61/2 to 71/2 years. The effect of the cerebral haemorrhage was to reduce his expectation of life to 2 years at most. The attacks are likely to recur and he will require constant medical supervision. Moreover, he will never work again. Whether or not the attack of cerebral haemorrhage was related to the plaintiff’s accident was in dispute at the trial. The plaintiff’s medical witnesses were of opinion that the accident accelerated the attack and this indeed was also the opinion of the distinguished cardiologist who was called as a witness on behalf of the defendants. The defendants’ surgeon, while acknowledging that he was not an expert in this field, gave as his opinion that the cerebral haemorrhage was not connected with the accident.
The jury’s verdict, in my opinion, is to be interpreted as an acceptance by the jury of the preponderance of the medical evidence on this matter. The trial judge, in the course of his charge, told the jury that they could allow a sum of £519 9s. 6d. for special damages (loss of wages and certain other small expenses) if their view of the evidence was that the cerebral haemorrhage and the resultant incapacity were due to the accident. The jury’s first award of the sum of £519 9s. 6d. is a clear indication that the jury so found. Further, the amount of the second award is also an indication that the plaintiff’s expectation of life was then only 2 years. The plaintiff’s average annual earnings were £616 per annum and, allowing for the discount of 5% suggested by the trial judge, the figure found by the jury is precisely for 2 years.
Counsel for the plaintiff submitted that the total of £1,000 for the plaintiff’s pain, suffering and loss of enjoyment both past and present was so inadequate as to call for this Court’s intervention. The award, it was submitted, was out of accord with the conventional figure for loss of an eye, viz. £2,750 to £3,000: see Gardner v, Dyson (7). It was also submitted that an award of £500 for injury, pain and suffering and loss of enjoyment up to the date of the trial was wholly inadequate. This sum includes a provision for the pain experienced as a result of the attack of cerebral haemorrhage and, accordingly, the jury’s award in respect of the loss of an eye is a matter of a few hundred pounds.
Before the accident the plaintiff had enjoyed the best of health. He was interested in bee-keeping and liked walking and bicycling. He described himself as a continual reader and as one who enjoyed reading. He was now unable to enjoy reading because he grew tired quickly. He also had difficulty in dealing with traffic and felt himself unable to join in general conversation in company.
Counsel for the defendants submitted that a global figure of £1,000 for the plaintiff’s injuries, though perhaps not as
high as a jury might award, was nevertheless adequate. If one takes the conventional figure of £3,000 as damages for loss of an eye and divides by the number of years of expectation of life of young men, the average figure for loss of amenity of life would be a small sum. The plaintiff was an old man with a short expectation of life. The damages in respect of the cerebral haemorrhage should be assessed on the basis that, though the attack had been accelerated, the plaintiff was in any event likely to be subject to such attacks. Counsel suggested that perhaps £250 of the £1,000 might be allowed in respect of all aspects of the cerebral haemorrhage. It is not, in my opinion, a correct approach to evaluate the damages for loss of an eye in the case of a person of the plaintiff’s age as counsel for the defendants said might be done, that is to fix, as it were, an annual premium and multiply this by the number of years which it is expected the plaintiff will live. The initial pain and suffering and deprivation, it seems to me, will be common to all men. I speak, of course, without reference to personal and special circumstances. Here the plaintiff not alone suffered the loss of an eye but he also had a cardiac condition brought on with immediate and serious consequences. The jury’s assessment of £500 damages in respect of the double injury is, in my opinion, wholly inadequate and shows a failure to appreciate the nature of the plaintiff’s injury.
The figure of £500 in respect of future pain and suffering is a low figure but in all the special circumstances of this case I think it was within the jury’s competence to find it.
When I add my view of a proper allowance under Question (3) to the other elements in the jury’s calculation which I would not disturb I am still satisfied that the inadequacy of the amount of the jury’s verdict is such as to call for the Court’s intervention. I would therefore allow this appeal.
HAUGH J.:
I agree. The damages awarded are inadequate, and the appeal should be allowed.
WALSH J.:
On the 19th September, 1966, the plaintiff, in the course of his employment with the defendants, met with an accident due solely to the negligence of the defendants. The defendants are building contractors and on the date in question the plaintiff was in their employment as a semi-skilled building worker doing work of a heavy type. At the date of the accident he was 58 years old and he was earning £11 17s. 0d. per week. By reason of the injuries sustained in the accident it became necessary on the 24th September, 1966, to remove his left eye. On the 5th November of the same year the plaintiff suffered a very severe brain haemorrhage by reason of which he has been made permanently unfit for employment since that date.
One of the questions which was in issue in the case was whether the brain haemorrhage was the result of the accident in which he initially lost his eye. There was evidence that he had had serious blood-pressure before the date of stroke and probably for some considerable time before the accident. According to the medical evidence his expectation of life before the accident, because of the condition of his blood pressure, would have been seven or eight years whereas, by reason of the stroke which he suffered, some of the medical evidence was to the effect that his expectation of life would only be two years. At the trial the only issue was the question of damages and the learned trial judge left this issue to be determined under four headings and the jury answered accordingly.8The plaintiff has appealed against the award of damages on the grounds that the damages were so inadequate as to be perverse and that there was no reasonable proportion between the damages assessed and the circumstances of the case.
One of the matters which the judge asked the jury to consider was whether the stroke was due to the accident. It appears from the answers to the questions that the jury found that it had been caused by the accident. In directing the jury on the first question, the learned trial judge correctly pointed out that, if they thought that the stroke was not caused by the accident, the loss of earnings which they would allow him would be those for the period of such incapacity as would have been due to the eye injury only and for the out-of-pocket expenses referable to that injury only. If, however, they were of opinion that the stroke was due to the accident then the amount which should be awarded in answer to the first question would be all the loss of earnings up to the date of the trial plus all the other out-of-pocket expenses up to that date. In the result the jury awarded the latter sum and thereby clearly indicated, in my view, that they found that the stroke was caused by the accident.
The second matter which they had to consider was the loss of earnings in the future and that, of course, involved deciding the expectation of life of the plaintiff. It was clear that by reason of the stroke the plaintiff would never work again and, in view of the jury’s findings on the first question, they had to proceed on the basis that all future loss of earnings were
entirely attributable to the stroke which was the result of the accident. The medical evidence relating to his pre-accident condition indicated a considerable degree of blood pressure which, on the medical evidence, would probably have given him an expectation of life of five to seven years without the intervention of the stroke at the time when it came. The stroke, however, had intervened and there was medical evidence to the effect that this in all probability would reduce his expectation of life to two years, thereby reducing his loss of earnings to that period. Having regard to the sum which the jury found in answer to the second question, which is approximately two years earnings, one must conclude that the jury had come to the view that the probability was that the plaintiff would not live more than two years. In my view the answers to the first and second questions were ones which were quite reasonably open to the jury on the evidence and cannot be criticised.
In the third question the jury was asked to assess the damages for the plaintiff’s pain and suffering and loss of enjoyment of life up to the date of the trial. The sum they found in answer to this was £500, a sum which in my view is grossly inadequate. The pain and suffering and loss of enjoyment of life from the date of the accident up to the date of trial involved the loss of the plaintiff’s eye, the hospital and surgical treatment necessary for the removal of the eye, and added to that was the onset of the stroke which had completely changed the whole course of his life. Although the particular period covered by this question is little more than a year, nevertheless in that year the plaintiff suffered these two major catastrophes. Having regard to the double nature of this particular damage, I am left with the feeling that the jury must have overlooked the stroke as a separate and major catastrophe and in all the circumstances I am satisfied that the sum awarded under this heading was so unreasonably inadequate as to warrant a new trial.
With regard to the fourth question, namely, the question of the pain and suffering and loss of enjoyment of life for the future, and having regard to the fact that the jury were apparently of the opinion that the future is going to last about two years, the sum of £500, while it may appear to be not generous, nevertheless is not one which could be regarded as unreasonably low.
There has been much discussion in this case on what sum might reasonably be awarded for the loss of an eye but I do not think the discussion is immediately relevant to the particular facts of this case because the precedents of damages which were cited all relate to injuries resulting in the loss of an eye to persons who were either young or certainly not more than middle aged. Generally speaking the sum awarded for the loss of an eye (leaving out of account any element of special pecuniary loss) is a figure of about £3,000 but that is, of course, where there is a considerable expectation of life. In the present case the expectation of life is remarkably short but, on the other hand, the injuries here have the added ingredient of the onset and effect of the stroke. Even taking the answers to the third and fourth questions together and adding the sums, the resultant £1,000 is in my view still grossly inadequate for such a double injury even having regard to the very brief expectation of life.
One other element which appears to have been touched upon by the learned trial judge in the course of his charge, but which was not developed and was certainly not claimed in the statement of claim, was the question of damages for the loss of expectation of life itself. This is a matter which has never been the subject of an appeal to this Court or, in so far as I am aware, to the former Supreme Court and I am not aware that it has ever been the subject of a claim in a High Court action. As the claim was not made here there is no necessity to enter into any discussion upon whether the claim is maintainable and, if so, what would be the appropriate amount for such heading of damages.
Lastly, I would like to take this opportunity to express unqualified approval of the learned trial judge’s course in breaking down the issue of damages into the four separate questions already mentioned. This was most helpful in enabling one to read the jury’s mind upon the various issues of fact which arose for decision in the computation of the damages in question and it is, indeed, a practice to be commended in all claims for damages for personal injury save, perhaps, in the most simple and uncomplicated cases.
For the reasons I have already given, I think the appeal should be allowed because of the unreasonably inadequate sum awarded under the headings dealt with in the third question and in my view a new trial should be ordered.
BUDD J.:
I agree.
FITZGERALD J.:
The sole issue in this appeal relates to damages. The plaintiff, Patrick McArdle, is a precast worker living and working in Dundalk. He was involved in the accident, which is the subject of these proceedings, on the 19th September, 1966, when he was some 58 years of age. He was struck on the left eye by a piece of scaffolding as a result of which the eyeball was severely damaged. Efforts were made to save the eye but they failed and it was removed on the 24th September, 1966. He was discharged from hospital on the 9th October but continued to attend as an out-patient. On the 5th November he had a stroke while walking on the street. This caused a paralysis of the left arm and leg and necessitated his return to hospital. It was then discovered that he was, and apparently had been for a considerable time, suffering from a very high degree of blood pressure. The medical evidence at the trial was to the effect that the stroke was attributable to the blood pressure and that, quite independent of the accident and the injuries sustained in it, his expectation of life was considerably reduced.
There was a contest at the trial on the issue as to whether the stroke and the consequences flowing from it could be attributed to the accident. The medical evidence adduced on behalf of the plaintiff was to the effect that there was a connection between the accident and the injuries sustained in it and the subsequent onset of the stroke. Although one of the doctors called on behalf of the defendants agreed that there might be such a connection, a second doctor called for the defendants discounted any relationship between the accident and the onset of the stroke.
The trial judge put four questions9 to the jury on damages. In charging the jury he told them in relation to the first heading of damages that, if they were satisfied that the stroke was attributable to the accident, they should allow a sum of £519 9s. 6d. which was made up of the plaintiff’s medical expenses and his loss of earnings from the date of the accident up to the date of the trial; but that, if they were not satisfied that the stroke was attributable to the accident, then they should only allow him loss of earnings in respect of the period which they considered appropriate to the accident and the removal of his eye and excluding any loss of earnings attributable to the disability arising from the stroke. The jury in reply to this question allowed the plaintiff the full sum of £519 9s. 6d. thereby indicating their view that the stroke was attributable to the accident. In respect of loss of earnings in the future, they allowed him the sum of £1,170 which is something less than two years’ loss of earnings at his pre-accident rate of wages. In respect of pain and suffering and loss of enjoyment of life to date they allowed him £500, and in respect of future pain and suffering and loss of enjoyment of life they allowed a further sum of £500, making a total of £2,689 9s. 6d. The plaintiff has appealed on the basis that the amount awarded to him is inadequate and bears no reasonable relation to the injuries sustained. There is no doubt that the figure of £519 9s. 6d. is a proper figure for loss of earnings and medical expenses in view of the jury’s opinion that the stroke was attributable to the accident. I have considerable doubt as to whether the sum of £1,170 is adequate in respect of loss of future earnings as the medical evidence would suggest that, while there was a risk that he might have had the stroke at an early date in any event, independently of the accident, the probabilities would appear to be that he might have had a working life of more than two years.
The plaintiff’s main complaint, however, is that the sums of £500 awarded in respect of pain and suffering to date and pain and suffering in the future are both grossly inadequate. On the basis of the loss of the eye and the stroke being attributable to the accident, I am of the opinion that a sum of £500 is quite inadequate to compensate the plaintiff for what he has already suffered. I am also of the opinion that the sum of £500 for future pain and suffering and loss of enjoyment of life is also grossly inadequate. Even allowing that the plaintiff, now being 591/2 years of age, has a short expectation of life, which would have been the case even if he had not met with the accident, it appears to me that the acceleration of the onset of the stroke and the resultant incapacity must necessarily attract at least twice the amount awarded by the jury under this heading. Consequently, in my view the amount awarded by the jury does not bear any reasonable proportion to the injuries sustained. The verdict should be set aside and a new trial ordered.
Mark Cooke v Walsh
(an Infant suing by his father and next friend William Cooke) v Patrick Walsh and the Attorney General (Notice Party)
1983 No. 46
Supreme Court
1984
[1984] I.L.R.M. 208
(O’Higgins CJ, Henchy, Griffin, Hederman and McCarthy JJ)
16 December 1983 and 16 March 1984
O’HIGGINS CJ
(Henchy J, Griffin and Hederman JJ concurring) delivered his judgment on 16 December 1983 saying: On 13 September 1980 the infant plaintiff suffered very severe injduries as a result of a traffic accident. Issues of liability which arose therefrom were determined in the High Court by Hamilton J sitting without a jury. Against his determination of these issues no appeal has been brought. The defendant has, however, appealed to this Court against the amount of damages awarded by Hamilton J. Part of this appeal relates to the learned trial judge’s decision on special pleas raised in the defence as to the validity of article 6(3) of S.I. No. 105 of 1971 and of s. 72 of the Health Act 1970 under which this statutory instrument purports to have been made by the Minister for Health. On this issue the court has heard submissions from both parties to the action and from the Attorney General who has been joined as a notice party. The court has concluded that before giving final judgment on the issue of damages it is desirable to dispose of the issue of the validity of the statutory instrument and/or of the section. Accordingly, it sits today to give judgment on these issues.
Before referring to the particular issue which requires decision it is necessary to refer very generally to the manner in which health services in this country are provided. These services are at present administered under the general authority of the Health Act 1970. This Act supersedes many provisions of earlier Health Acts. It provides for the administration of specified services through Health Boards which operate on a regional basis. The services which are to be provided are dealt with in Part IV, Chapters 2 to 5 of the Act and are classified as ‘hospital in-patient and out-patient services’, ‘general medical services’, ‘services for mothers and children’, ‘other services’. In Part IV, Chapter 1 eligibility for these services is dealt with under two headings. These two headings relate to ‘full eligibility’ and ‘limited eligibility’. S. 45 (1) deals with full eligibility and provides as follows: *211
45
(1). A person in either of the following categories shall have full eligibility for the services under this Part —
(a) adult persons unable, without undue hardship to arrange general practitioner medical and surgical services for themselves and their dependants.
(b) dependants of the persons referred to in paragraph (a).
Subsequent subsections provide for the manner in which the means of a person to qualify for services should be considered, for the deeming of certain classes to be qualified and for dealing with particular hardship in individual cases. While the section refers to ‘categories’ it is clear that the only dividing line between those covered by the section is that between adult persons and their dependants, and, that the common bond amongst such adults is their inability or deemed inability to arrange the necessary services for themselves and their dependants. The phrase ‘full eligibility’ is not defined. It is, however, clear from the scheme of the Act that it indicates an entitlement to all the services which it is the obligation of the appropriate Health Board to provide and, further, that these services must be provided for such persons free of all charge. (See s. 52 (in-patient services), s. 56 (out-patient services), s. 58 (general medical services), s. 59 (drugs, medicines, appliances), s. 60 (home nursing), s. 62 (care for mothers), s. 63 (care for infants), s. 67 (dental, ophthalmic and oral services)).S. 46 deals with the second heading which is ‘limited eligibility’. It provides as follows:
46. A person in any of the following categories who is without full eligibility shall have limited eligibility for the services under this part —
(a) persons insured under the Social Welfare Act 1952,
(b) adult persons whose yearly means are less than £1,200,
(c) adult persons whose yearly means are, in the opinion of the chief executive of their appropriate Health Board, derived wholly or mainly from farming, if the rateable valuation of the farm or farms concerned (including the buildings thereon) is not more than £60.
(d) dependants of persons referred to in paragraphs (a), (b) and (c).
By subsequent subsections it is provided that there may be a substitution by the Minister of other provisions defining categories of persons with limited eligibility. These alterations were in fact made but it is unnecessary to consider what was involved. What is relevant is that this section deals with those with ‘limited eligibility’. Again, this phrase is not defined but, having regard to the scheme of the Act it seems to indicate groups of persons, classified under different headings, who are entitled to avail of health services under the Act but who may be charged for the services which are provided for them. The charges which may be imposed vary according to circumstances, and, according to the specified class amongst those with such eligibility to which the person concerned belongs. (See ss. 53, 67). In addition, persons with such limited eligibility are not entitled to all the health services which are available. (See s. 58).
It is conceded that on the date of this unfortunate accident the infant plaintiff came within s. 45 of the Act and was accordingly entitled to full *212 eligibility. Such eligibility in accordance with ss. 53 and 56 entitled the plaintiff to all hospital in-patient and out-patient services entirely without charge. Having been injured in the accident, he was maintained and treated over a prolonged period in St. Laurence’s Hospital, Dublin, and later in the National Medical Rehabilitation Centre. Had his injuries been suffered otherwise than in a road accident no question of imposing a charge in respect of his maintenance and treatment in either of these hospitals could have arisen. However, in the events which transpired, a charge of £44,743.92 was made in respect of his period in St. Laurence’s Hospital, and a charge of £24,255 in respect of his period at the National Rehabilitation Centre. The charges having been so made were included as part of the plaintiff’s claim for damages against the defendant as was also a prospective charge of £30,718 in respect of a further hospitalisation for twelve months. It is because of this fact that the issues of validity, with which this judgment is concerned, have arisen.
These charges in respect of the plaintiff’s hospitalisation were imposed by both hospital authorities because of the operation of statutory instrument no. 105 of 1971. This statutory instrument is entitled ‘Health Services Regulations 1971’. It is made by the Minister for Health in purported exercise of the powers conferred on him by different sections in the Health Act code. These sections are: s. 5 of the Health Act 1947, and ss. 53, 54 and 72 of the Health Act 1970. An examination of these empowering sections and of the different provisions of the statutory instrument indicates that the particular provision with which this case is concerned can only have been made under the apparent authority of s. 72 of the Health Act 1970. That this is so has been conceded in the arguments and submissions made to this Court. This particular provision is contained in article 6 (3) and I will refer to this particular provision henceforth in this judgment as ‘the Regulation’. It is in the following terms:
(3). The class of persons entitled to avail themselves of services under ss. 52 or 56(2) of this Act shall not include persons who require treatment for injuries received in a road accident except where it is established to the satisfaction of the chief executive officer of the Health Board that the applicant for such services has not received or is not entitled to receive damages or compensation in the nature of damages from another person in respect of the injuries.
S. 72 of the Act, under which it is agreed this Regulation purports to have been made, is in the following terms:
72—
(1) The Minister may make regulations applicable to all Health Boards or to one or more than one Health Board regarding the manner in which and the extent to which the Board or Boards shall make available services under this Act and generally in relation to the administration of those services.
(2) Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.
The defendant has challenged the validity of the regulation. He mounts this challenge on two distinct grounds. In the first place he questions whether the regulation is properly made within the powers conferred on the Minister by *213 s. 72. Obviously, if he succeeds on this ground the regulation will be held to be ultra vires the Minister and on that account to be void. If, on the other hand, the regulation is held to be within the apparent authority conferred on the Minister by the section, then the court must consider whether the section itself is valid having regard to the provisions of the Constitution. It is well settled that the consideration of any question involving the validity of a statute or a section thereof should, in appropriate circumstances, be postponed to the consideration of any other question, the resolution of which will determine the issue between the parties. It is, therefore, proper in this case that the question of ultra vires, apart from any question of constitutionality, should first be considered. In the consideration of such question, however, the validity of the section must be presumed and it must be interpreted in accordance with the existence of such a presumption. This means that if the section is capable of being interpreted in two ways, one of which would give a meaning which is consistent with what is permitted by the Constitution and the other of which would not, that meaning which is so consistent must be adopted.
The interpretation of the section is a prerequisite to a determination of whether what purports to be done by the regulation is, in fact, within the Minister’s powers under the section. What then is permitted by s. 72? The first subsection applies only to health boards and clearly relates to the manner in which these boards are to administer the health services provided for under the section. While it refers to the making of regulations ‘regarding the manner in which and the extent to which the board or boards shall make available services’, this must not be taken as meaning that such regulations may remove, reduce or otherwise alter obligations imposed on health boards by the Act. To attach such a meaning, unless compelled to do so by the words used would be to attribute to the Oireachtas, unnecessarily, an intention to delegate in the field of lawmaking in a manner ‘which is neither contemplated nor permitted by the Constitution’. (See this Court’s judgment in Cityview Press v An Comhairle Oiliuna [1980] IR at 399). Accordingly, these words must be taken as applying only to standards, periods, places, personnel or such other factors which may indicate the nature and quality of the services which are to be made available. However, it is not so much on this subsection as on subsection (2) that reliance was placed in justification of the regulation. I again quote this subsection:
Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.
Here, again, it is necessary to seek a meaning for these words which absolve the National Parliament from any intention to delegate its exclusive power of making or changing the laws. Needless to say, if such a meaning is not possible then the invalidity of the subsection would be established. Prima facie, therefore, these words are to be interpreted in such a manner as to authorise only exclusions which the Act itself contemplates. Such exclusions may be possible in relation to particular services for persons with limited eligibility. Those with such eligibility are classified under section 46 and the Minister, by *214 subsection (3), is given power to change or alter this classification. The obligation imposed on health boards is to provide, not all the services, but, such services as are specified, for persons with limited eligibility. While I do not find it necessary to come to a final decision in this regard it seems to me possible that regulations under the subsection could excuse a particular health board or health boards from the obligation to provide a particular service for a particular class of those with limited eligibility, while the obligation to provide that service for others with limited eligibility remained. I am, however, satisfied that the subsection is not to be interpreted as permitting by regulation the cancelling, repeal or alteration of anything laid down in the Act itself unless such is contemplated by the Act.
Having said this, I turn to what the Regulation purports to do. It, in effect, seeks to add new subsections to ss. 52 and 56 of the Act which exclude, from the benefit of these sections and the statutory entitlement thereby afforded, a category of persons whose exclusion is in no way authorised or contemplated by the Act. Included in this category must, necessarily, be persons who by the Act are given full eligiblity and full statutory entitlement to avail of the services provided for by the two sections without charge. This is, in reality, an attempt to amend the two sections by Ministerial regulation instead of by appropriate legislation. In my view, the National Parliament could not and did not intend to give such a power to the Minister for Health when it enacted s. 2 of the Health Act 1970. Accordingly, in my view, the Regulation is ultra vires the Minister and is void.
I wish to add that during the argument on this issue the standing of the defendant to raise these questions of validity was itself questioned. In this respect reliance was placed on the decision of this Court in Cahill v Sutton [1980] IR, at p. 269. While this decision referred to a constitutional issue its reasoning could apply equally to an issue of ultra vires, in relation to rules or regulations made under statutory power. I am quite satisfied that the defendant has sufficient standing to raise this question of ultra vires. By reason of the regulation he has been asked to meet a claim in respect of hospital charges which now proves, in my view, to be unjustified and which he could only dispute by questioning the regulation as a consequence of which these charges were imposed.
McCARTHY J (read by O’HIGGINS CJ):
I also agree with the judgement of the Chief Justice in holding that the regulation in question is ultra vires the Minister and is void.
I wish, however, expressly to reserve for further consideration the question as to whether or not the decision of this Court in Cahill v Sutton [1980] IR 269 and the reasoning underling it are applicable to an issue of ultra vires in relation to rules or regulations made under statutory power and, if necessary, such limits as it may be necessary to impose upon the application of Cahill’s case in such circumstances. In the instant case it is, in my judgment, beyond argument that when a defendant is subjected to a claim based upon the alleged liability, past and future, of the plaintiff to pay hospital bills charged by a *215 health authority or by the hospital itself, such defendant is entitled to challenge the validity of the charges making up such bills in any manner in which the plaintiff himself would be entitled to do. It is, in my view, quite unnecessary to consider the application of any principle to be drawn from Cahill’s case.
GRIFFIN J
DAMAGES ISSUE
(O’Higgins CJ, Henchy and Hederman JJ concurring) delivered his judgment on assessment of damage on 16 March 1984 saying: In the accident in which he was involved in September 1980 the plaintiff suffered injuries which have had appalling consequences for him. He suffered a brain stem injury and in consequence he is and always will be both mentally and physically disabled. At the time of the trial in the High Court, he had varying degrees of spasticity and paralysis of all four limbs. He is incontinent of bowel and bladder, suffers from epilspsy, has the mentality of a child of one year old, and can say only a few words like dadda, mamma, cow — less than a dozen words in all. For all his ordinary activities such as eating, drinking, dressing, bathing, he is and will always be completely dependant on others.
In respect of the injuries sustained by him, the learned trial judge assessed damages in the sum of £757,538.92. This was made up as follows:
1. Hospital expenses to date of trial: £68,998.92.
2. Hospital expenses for the twelve months next after the trial: £30,718.
3. Cost of alteration to his father’s house to suit his needs: £18,722.
4. Loss of expectation of life (agreed): £2,000.
5. Future loss of wages: £110,400.
6. Cost of future care: £401,700.
7. General damages to date: £25,000.
8. General damages in the future: £100,000.
The hospital expenses, amounting in all to £99,716.92, are governed by the unanimous judgment of this Court delivered on 16 December 1983 by the Chief Justice. No dispute arises as to the third and fourth items.
Future loss of wages: £110,400
At the time of the trial the plaintiff was aged 11 and the learned trial judge accepted that, had he been uninjured, he would probably have secured employment in the semi-skilled area. There was evidence, which he accepted, that the average rate of wages in this area was £115 per week. He held that the plaintiff is entitled to be compensated at that rate from the 1989 (when he would have reached 18 years of age) to the year 2022, as there was evidence that his expectation of life was probably forty years i.e., until he would reach fifty-one years of age. Using a multiplier of 960, he capitalised this loss of wages at the sum of £110,400. Counsel for the defendant do not dispute that a semiskilled worker would earn £115, but they claim that the wrong multiplier was used, and that the entire of the sum of £115 should not have been capitalised.
Actuarial evidence was adduced on behalf of the plaintiff and of the *216 defendant. In cases of this kind, the function of an actuary is to ascertain what is the capital sum, payable at the time of the hearing of the action, which is equivalent to a loss of each £1 per week for a specified period, taking into account that the capital sum can be invested and earn interest, the probabilities of the plaintiff surviving that period, and inflation. In taking interest rates into his calculations, he considers the relationship between the rates of interest available and the rate of inflation, i.e. the rate per cent by which the interest that can be earned exceeds the rate of inflation, or, as it is often called, the real rate of return. His calculations are based on the assumption that both capital and interest will be exhausted at the end of the specified period.
There was a considerable body of evidence adduced at the trial on behalf of both the plaintiff and the defendant as to what the correct rate of interest should be. The plaintiff called as witnesses an economist who is also a university professor in that discipline, a member of one of the leading firms of accountants in the city of Dublin, a stockbroker, the investment manager of one of the leading merchant banks in the State, and an actuary. Evidence on behalf of the defendant was given by an accountant, by the investment director of another of the leading merchant banks, by an economist who is also a university lecturer in economics, and by an actuary. The effect of the evidence called on behalf of the plaintiff was that the interest rate applicable should be between 2 and 3 per cent. The witnesses on behalf of the defendant contended that an interest rate of 5 per cent would be more appropriate.
The learned trial judge accepted the evidence given on behalf of the plaintiff, and fixed the rate of interest applicable at 2½ per cent. The rate of interest taken is of considerable importance, as the multiplier in the case of 2½ per cent is substantially in excess of that in respect of 5 per cent. The capitalised value of each £1 per week, commencing at age 18 and ending at age 51, is £587 where the interest rate is 5 per cent, and is £960 if the interest rate is 2½ per cent. In respect of loss commencing one year after the trial and ending at age 51, the multiplier at 5 per cent is £837 and at 2½ per cent is £1,236.
Having heard all the evidence given in respect of the rate which should be accepted, the learned trial judge was, in my opinion, entitled to accept and adopt the rate of 2½ per cent, and this Court is not entitled to interfere with that finding made by him. It may very well be that, in other cases, a different rate may be accepted on the evidence given in such cases.
In ascertaining the loss of wages, the learned trial judge multiplied the sum of £115 by a multiplier of 960, resulting in the sum of £110,400. Counsel for the defendant submitted that this sum is excesive and should be set aside. They claim that, as the calculations made by the actuary at the appropriate rates of interest do not have any regard for illness, unemployment and all the other hazards connected with employment, they cannot properly be used without being abated, in particular since, on the evidence, with very little return on capital available, the predictions for industry and employment in general are gloomy in the extreme.
In my opinion, counsel for the defendant are justified in challenging this figure and how it is calculated. As I said in my judgment in Reddy v Bates, *217 [1984] ILRM 197, this figure does not:
take into account any risk of unemployment, redundancy, illness, accident or the like. It assumes that the plaintiff, if uninjured, would have continued to work, week in and week out, until retirement and would have in effect guaranteed employment, at a constantly increasing annual rate of wages, until retirement or prior death.
When actuarial evidence first came into regular use in cases such as this in our courts, employment was then and was for many years thereafter, reasonably stable and actuarial figures could be applied by juries with reasonable confidence, even though they have always been directed by the trial judge that such figures are intended only for their assistance as a guideline and that they are not bound to accept them. Whilst the mathematical calculations made by the actuary are constant and correct, they should be applied in the particular circumstances of every case with due regard to reality and commonsense. There is now a high rate of unemployment, not only in this country but in Great Britain and in most of the member states of the E.E.C. The numbers of redundancies in and indeed closures of firms in recent years — firms which would have been regarded as of unshakeable financial soundness — must inevitably lead to the conclusion that there is no longer any safe, much less guaranteed, employment. This is a factor which in my view juries should be required to take into account in assessing future loss of earnings in any given case.
There should therefore in my view be a substantial discount from the multiplier for the risk factor where employment is concerned. Indeed, since that judgment was delivered (only 8 month ago) the numbers unemployed have considerably increased, and at the present time there are more persons unemployed than are employed in industrial employment, and all the forecasts are that there will be further deterioration in the position in the future. The learned trial judge did not make the necessary discount from the multiplier. In fairness to him, his judgment was delivered before Reddy v Bates.
In the instant case, the learned trial judge multiplied the entire of the rate of wages (£115) by the full multiplier used by him. In my view this is not correct, as it is the ‘take home pay’ and not the gross pay that should have been used as the multiplicand. Had the plaintiff been uninjured, he would have to pay income tax on the wages he would earn, and PRSI and other deductions would be made from his wages, and therefore the sum that would be available to him to spend would be considerably less than £115 per week. In my view, therefore, the sum of £110,400 awarded for loss of wages should be set aside as excessive.
Cost of future care: £401,700
The learned trial judge was satisfied on the evidence that the plaintiff’s expectation of life was forty years from the time of the trial. He therefore ascertained what would be the cost of his care and maintenance to commence one year from the date of the trial, as the doctors were satisfied that the plaintiff would require to be at least another year in hospital. The evidence given by Dr. Gregg and Dr. Halpenny, two eminent specialists in the field of injuries of the type suffered by the plaintiff, was to the effect that if the plaintiff’s family are able to cope emotionally as well as physically with the plaintiff’s particular problems, the home is the ideal place for him. If the family can cope, the plaintiff would attend a Day Centre, at which he would attend from approximately 10.00 a.m. to 4.00 p.m., and special transport to and from these Day Centres is *218 available. In the plaintiff’s case, attendance at such a centre would continue into and throughout his adult life. Throughout his childhood period he would require regular physiotherapy to increase mobility and to prevent or reduce contractures. He would also require speech therapy for some years to come, but his doctors are not very hopeful about any great improvement in his speech. With proper care and proper training and therapy, his quality of life could be improved.
At the time of the trial, both doctors estimated his mentality as being that of a child of one and that his mental age would in adult life be hardly more than about two years. He has very poor concentration — probably no longer than for one minute, and it is further impaired by a very short term memory defect.
The weekly sum fixed by the trial judge for capitalisation in respect of care and maintenance was the sum of £325. Using a multiplier of 1,236 the capitalised sum arrived at was £401,700. The £325 was arrived at in the following way:
Medical appliances and TV colour licence
£17.00 per week
Transport
£20.00 per week
Nursing aids to attend to the plaintiff at home
£164.60 per week
To the plaintiff’s mother
£80.00 per week
Medical attention
£1.50 per week
Hospitalisation in the future (at £85.00 per day for ten days each year)
£16.36 per week
Speech and occupational therapy
£25.00 per week
Total:
£324.46
The trial judge rounded this sum off at £325.
The £20 per week for transport capitalises at £25,000, nursing aids at £203,445, the £80 per week to his mother at £98,880, the £25 per week for speech and occupational therapy at £30,900, and the hospital charges at £20,220.
The capitalisation under this heading assumes that the plaintiff will live at home with his mother and father for the remainder of his lifetime i.e. 40 years. When he is 51, if they are spared his mother would be aged 87 and his father 85. Mr Liston on behalf of the defendant, whilst accepting that for the foreseeable future the plaintiff could and would best be kept at home, argued that a time will come when, due to the difficulties involved and to the advancing years of his parents, they would no longer be able to look after him. The medical evidence was to the effect that the plaintiff becomes quite aggressive at times, and this was corroborated by his mother. The doctors stated that, with brain damage of this type, there is likely to be emotional disturbance at different stages, with poor control of aggressive tendencies. Mr Liston submitted that, on the probabilities and the practicalities, it is quite unlikely that the plaintiff could be kept at home indefinitely. In my view, there is considerable force in that submission. Indeed the plaintiff’s mother herself is alive to the difficulties she and her family may encounter. In her evidence she said that she intended to try and keep him at home, but did not know whether it would work or not, but that she would try to keep him as long as she could and do her best for him. She found that it was a considerable physical strain on *219 her when he was at home on short visits, especially as she then had no assistance. The learned trial judge awarded her just under £100,000 to compensate her for the care and attention she will be obliged to give to the plaintiff in her home for the next forty years. This is in addition to the care and attention given by the two nursing aids who are provided for in the sum of £203,445 mentioned already. Whilst no money would compensate the plaintiff’s mother for the virtual destruction of the plaintiff physically and mentally, this is not the legal issue involved in respect of this item. The evidence is that the plaintiff would require to be in a Day Centre during the day for therapy and training, and would be attended by nursing aids for 8 hours each day whilst he was at home. While some payment to the mother may be justified, the payment of almost £100,000 to her cannot, in my opinion, be justified.
Under this heading there is a sum of £25,000 for transport and £30,900 for speech and occupational therapy. The therapy is given at the Day Centre without charge, and transport to and from the Day Centre is also provided without charge. Occupational therapy is provided at the Day Centre, and speech therapy would appear to be necessary only for a limited number of years. Both of these sums are in my view excessive although some damages might properly be awarded in respect of them. With reference to the sum of £20,220 for hospital charges, this is arrived at by allowing £85 per day for ten days each year. While there will be some charge, the £85 per day is based on the excessive charges which were made in respect of road traffic accident cases, and consequently this sum is also excessive.
General damages: £125,000
As has been stated earlier, the plaintiff has the mentality of a child of one, and is unlikely to improve beyond having a mental age of two. Mr Liston on behalf of the defendant submits that the figure to be awarded in respect of general damages should be moderate by reason of the plaintiff’s lack of awareness or appreciation of his condition. The greatest suffering endured by, say, a quadriplegic is mental suffering. Just as in the instant case, a quadriplegic has been deprived of the amenities of life and has lost the enjoyment of life. But the difference between the two cases is that, in the case of a quadriplegic, unless he has brain damage, he is fully aware of his condition and of what it means to him — he sees himself as a prisoner for life in his wheelchair. In the present case, the plaintiff has, at best, only a mild awareness or appreciation of his condition due to the severe brain damage he sustained in the accident. He has, therefore, been spared the considerable mental suffering which would follow from knowledge or appreciation of the virtual destruction of his life. The plaintiff must still be compensated for his injuries, but in the circumstances outlined I agree with Mr Liston’s submission that the compensation should be moderate. Further, in relation to general damages, I should like to repeat what I said in Reddy v Bates as follows:
The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort having due regard to her disabilities, should be reflected in *220 the amount of general damages to be awarded … In a case such as this, where damages are to be assessed under several headings, when the jury has added the various sums awarded and arrived at a total for damages, they should then consider this total sum as should this Court on any appeal, for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury, and this Court on appeal, should take into consideration in arriving at a conclusion in this behalf.
As appears from this extract, it is the global sum for damages that is of importance. While the segregation of damages focuses attention on the particular items of damage, and assists this Court on appeal in considering whether the damages awarded are excessive or not, when all the component items have been added together the total or global sum should then be reconsidered by the jury (or the trial judge as the case may be) to ascertain whether the global sum is, in all the circumstances of the particular case, fair and reasonable compensation to the plaintiff for the injury suffered.
In the result, in my opinion, the amounts awarded under the headings of loss of wages, cost of future care, and general damages are excessive and the total or global sum awarded is excessive. I would accordingly allow the appeal and direct a new trial on damages.
McCARTHY J:
The headings of damage remaining to be considered are in respect of the assessment by the learned trial judge of:
(a) Future loss of wages — £110,400.
(b) Cost of future care starting on 1st January 1984 for a period of 39 years — £401,700.
(c) General damages to date — £25,000.
(d) General damages in the future — £100,000.
A. Future loss of wages
The weekly amount assessed by the learned trial judge (£115.00) is not an issue; the thrust of the appeal is against the multiplier applied by the judge both under this heading and under the heading of future care.
Since preparing this judgment in draft form some weeks ago, I have had the opportunity now of reading the judgment of Griffin J in which he analyses the approach by the learned trial judge to this issue. It is true to say that on the hearing of this appeal counsel for the defendant made a brief submission in which he accepted that the assessment of the figure of £115 per week was correct but questioned its application in that ‘the economic evidence means high unemployment’. I have examined the evidence of Professor Quinn, the economist, and that of Piers Segrave Daly, the actuary called on behalf of the plaintiff, as well as that of Peter Delaney, a like expert called for the defendant. I am unable to find in aperusal of all of the evidence given by these gentlemen or in reading all of the submissions made to the learned trial judge any reference, direct or otherwise, to the incidence of illness, unemployment, redundancy or the like. Much of this evidence was given while the case was still being heard by a jury with the added attention to detail which that *221 involves. The first indication of such an argument being made on behalf of the defendant appears to lie in paragraph 3 of the grounds of appeal set out in the Notice of Appeal. It was not, however, overlooked by the learned trial judge who (p. 11) in his second judgment stated:
I have already decided that as a matter of probability that the infant plaintiff would have secured employment in the semi-skilled area at a present day wage of £115 per week.
The imponderables or future contingencies which could arise in such an employment include inability to obtain employment or inability to work due to ill health which could reduce the capital sum necessary to compensate for such loss but I consider these risks are cancelled by the fact that he may have qualified to secure employment as a skilled workman or that he may have progressed from being a semi-skilled workman to become a skilled workman or advanced himself in some other way.
I am satisfied that the infant plaintiff will suffer financial loss at the rate of £115 per week at present levels from the age of 18 until the ae of 51 and that the capital sum necessary to compensate for such financial loss can be determined by a simple mathematical calculation made by the actuary.
I would add the factor that the loss of wages calculation in the instant case begins in the year 1989 and ends in 2022; for my part, I decline to assume that the present state of high unemployment will, necessarily, exist during that period.
Further, in his judgment, Griffin J comments on the use of the entire of the rate of wages as the multiplicand. He refers to the liability of the plaintiff to pay income tax on his wages and PRSI and other deductions which would be made from his wages. I recognise the force of these comments, but they do not appear to have occurred to counsel for either side during the course of a trial marked with particular care taken by all counsel and, indeed, by the trial judge. It may well have been recognised that the multiplier to be taken from the selection provided by Mr Segrave Daly did itself contain an allowance for the incidence of tax, at least, and was not itself, the multiplier, increased by allowing for the tax that would be payable on the dividend resulting from the capital sum provided. As I say, however, there was no reference, whatever, to this aspect of the case in the evidence, the submissions, the relevant portion of the judgment, nor, indeed, in the grounds of appeal, or so far as my note goes, the argument before this Court. I would not now entertain any such argument nor would I permit my judgment to depend upon it.
The learned judge to this issue of loss of wages as, indeed, to all other questions that arose in this distressing case, brought the benefit of a wealth of experience in the trial of actions of this kind and prefaced this particular part of the second judgment in the case with a quotation from the advice of the Privy Council in an Australian case — Paul and Another v Rendell [1981] 55 ALJR 371 — where Lord Diplock stated:
… So long as juries continued to be the assessors of damages they were not called upon to rationalise their hunches. but judges are, and this has given rise to a considerable body of case law in the various State Supreme Courts and in the High Court of Australia about the principles to be applied where the use of particular mathematical formulae form steps in the process by which the judge has sought to justify his choice of a particular figure for one of the components into which he has broken down his total award. This is particularly so *222 with these components that represent future economic loss and interest or loss sustained before the date of judgment. But while it is possible to lay down principles for the choice of the formula and its parameters (in its accurate sense of constants in a mathematical equation) the choice of figures for the variables is within the discretion of the assessing judge. By adjusting one or other of these factors he can make the formula work out at whatever figure he feels intuitively to be correct … (at p. 373).
The learned trial judge, in his second judgment, then proceeded, having calculated the loss of future wages at £115 per week, to make a careful examination of the evidence bearing upon the calculation of the appropriate rate of interest to govern the multiplier which he would apply to the weekly sum. I cannot find any error in the method of assessment, certainly nothing that does not make every possible allowance for the case made on behalf of the defendant. If the learned trial judge has based his assessment upon calculation of real interest of 2 per cent rather than 2½ per cent, I, for one, would not find possible to disagree with the calculation. In present days of high interest and continuing inflation, one is inclined to assume that high interest rates — interest rates running above 4/5 per cent and, indeed, up as far as 20 per cent are, in some way, the norm. Such is not the case. The evidence given at the trial bears this out and one’s casual knowledge of the interest rates reflected in the older form of government borrowings — 2/2½ per cent lends ample support to this view. Having regard to the nature of the evidence called at the trial, it seems difficult to foresee any other view than that to which the judge came; it may be that there would be compelling evidence in some other case to the contrary — pending it, I would uphold the method of calculation adopted by the learned trial judge.
B. The cost of future care
Having regard to the observations I have made in respect of the multiplier, it is unnecessary to consider further that aspect under this heading. Whilst arguments were addressed to the court on the amount of the judge’s assessment at £325 per week, nothing was said to convince me that the learned trial judge made any error in this regard, save as to the hospital charges included in the calculation.
C and D. General damages
The learned trial judge summarised the effect of the medical evidence at page 231 of the transcript:
This young boy suffered an injury to the stem of his brain and atrophy of the entire of brain which suggested the entire of the brain is damaged. This lead to the spasticity of the muscles of the four limbs which have been described in detail by Mr Pate and Dr Gregg. This led then to the constrictures that have been described and have been treated so far as the legs are concerned with some success but no real success in respect of the arms. It is quite clear that as a result of the damage to his brain he now has a mental age of one and it is hoped that with ordinary development he will eventually achieve the mental age of two or possibly three years of age. It is quite clear that he will never work again; that he will always be completely and utterly dependent on other people and, as I say, he will have a mental age of two or three at the very best. Now it is also clear that children of one, two or *223 three are capable of apreciation of their surroundings, capable of appreciating love and affection, capable of appreciating pain, capable of feelings of frustration because of their inability to do things they want to do. It is a serious matter, serious as I said not only for the plaintiff but for the defendant. But doing the best I can I will award him in respect of pain and suffering to date the sum of £25,000. Now we have to look into the future. The boy has an expectation of life of another 40 years and he is entitled to be compensated in every way by the provision of any pleasure that can be provided for him to compensate him for what I can only describe as the gross distortion of his way of life. I have to have regard to the views of the Supreme Court with regard to the general damages but taking their view into account I will award the sum of £100,000 pain and suffering.
The approach stated to be appropriate for cases of this kind, upon review to this Court was expressed by Lavery J in Foley v Thermo Cement and Products Limited (90 ILTR) 92. This was an appeal from the verdict of a jury. I have considerable reservations as to the appropriateness of the method of review postulated in Foley’s case as being appropriate, in appeals from jury verdicts, having regard to the effects of the inflationary pressures of the last two decades. It is not, however, in my view, to the point at all in the review of an assessment made by a single judge. In my view, one must look to see if there is any error patent on the judgment itself. The learned judge, in the instant appeal, did not expressly refer to the nature of the injury itself as being of a great significance in measuring the amount of damages under these headings; his views, as, indeed, the case was argued in this Court, dealt with the plaintiff’s appreciation of the consequences of the injuries. The matter has not been fully debated on the hearing of this appeal and I prefer to reserve for further consideration the very wide question which has been the subject of considerable debate, both in the courts and academically, in the United Kingdom, in Canada and in Australia, and, no doubt, in the United States, bearing upon the question as to whether or not an individual who has no real appreciation of his plight should be awarded other than a relatively nominal sum for general damages. Having regard to the nature of the injuries sustained in the instant case, I cannot say that the two sums awarded by the learned trial judge are such as to warrant interference.
In the result, I would dismiss this appeal so far as it affects these items of damage, save as to the hospital charges.
Patricia Reddy v John Bates
1982 No. 199
Supreme Court
29 July 1983
[1984] I.L.R.M. 197
(Griffin J, Hederman and McCarthy JJ)
GRIFFIN J
(Hederman J) delivered his judgment on 29 July 1983 saying: In this action which was tried before D’Arcy J and a jury damages amounting to £551,354 were awarded to the plaintiff. The trial was confined solely to damages and the defendant has appealed against the award of damages on the ground that the damages were excessive. The learned trial judge broke down the questions into appropriate headings and the jury assessed damages under the following heads:
1. Special damages to date:
(a) Items agreed (other than for dental treatment)
£41,404
(b) For dental treatment
£ 950
2. General damages to date
£100,000
3. Special damages for the future:
(a) Loss of earnings
£144,000
(b) Cost (if any) of house-keeper
£115,000
4. General damages for the future
£150,000
TOTAL:
£551,354
The argument on the hearing of this appeal was confined to questions 2, 3 and 4.
The plaintiff’s claim arose out of an accident which occurred on 4 June 1979 when she was a passenger in a car being driven by her sister and a collision occurred between that car and a car the property of the defendant. The plaintiff suffered injuries which by any standard were very severe. She suffered severe damage to the brain stem, and considerable damage to the upper part of the brain and was unconscious for upwards of three weeks. She *199 was admitted as a patient to St. Lawrence’s Hospital (the ‘Richmond’) on the evening of the accident but fortunately she did not need surgery as there was no sign of bleeding within the head. She was unaware of her surroundings for approximately eight weeks, and although she remained in that hospital for an additional four weeks she has no recollection of having been in that hospital at any time. She was then transferred to the National Medical Rehabilitation Centre in Dun Laoghaire under the care of Dr Gregg, the director of the Centre. With the exception of two weeks at Christmas 1979, when she stayed with her family, she remained in Dun Laoghaire until May 1980. Although she had then made considerable improvement having regard to the extreme severity of the original injury, she had become extremely incapacitated physically due to a condition which is quite uncommon. It appears that the nerve impulses from the brain stimulated the tissues in an unusual fashion and the tissues reacted by forming bone — she had formed new bone around her left hip joint and right elbow. She stayed with her sister in Cheshire from May 1980 until August 1980 when Mr Sheehan, the well-known orthopaedic surgeon, operated on her in St Vincent’s Hospital. This was a major operation requiring removal of the growth of bone from her left hip but this was followed by a further production of new bone. There was another operation in Cappagh Hospital, also performed by Mr Sheehan, in November 1980, this time to her left knee. This was successful in that she was able to obtain a full straightening of the knee and to bend the knee almost to a right angle.
With regard to the right elbow Mr Sheehan considered that there was no point in surgery in the light of the experience with the left hip, and the elbow became fixed in a significantly bent position (approximately 90°). In May 1981, Mr Sheehan performed a further major operation for the purpose of realigning her left leg to enable her to get both legs on the ground, and this enabled her subsequently to stand upright and regain her balance and ultimately to walk.
By the beginning of September 1981 she was able to go with her sister and brother-in-law on holidays to San Francisco, and while there to go on excursions by train, by plane and by boat. She remained with her sister in the United States until the middle of October 1981. No words of praise for this sister, and indeed for the other members of her family, would be too high for the efforts they made to assist the plaintiff in her rehabilitation.
Sometime after the return from the United States a flat was purchased for the plaintiff in Dublin as she was anxious to live alone. However she can only look after herself to a limited extent — she can do very light housework and light cooking, but as she is somewhat unstable on her feet she needs some help to keep an eye on her generally and to do the heavier type of housework and cooking. She could not, for example, safely lift a boiling pot of water off a cooker, handle hot dishes, or bend down to take a hot dish out of an oven. At the time of the trial, her brother and his fiancee had been living with the plaintiff in this flat for approximately six months and they were looking after her.
At the time of the accident the plaintiff was twenty four years of age. She was *200 employed by the PMPA Insurance Company Ltd as a clerk and evidence was adduced from the personnel manager of that company that if she had still been employed by them at the time of the trial she would be earning approximately £7,340 per annum. On the question of the plaintiff’s ability to work, there was a considerable volume of expert evidence called on behalf of the plaintiff, which may be summarised as being to the effect that due to her difficulty in concentrating and the impairment of her memory, together with her physical incapacity, she would not be capable of gainful employment on the open market and that, in effect, she would be unable to work again. For the defendant, a leading neurosurgeon and a leading psychiatrist gave evidence, and their evidence may be summarised in this way — she should be capable of some work, such as work in a shop, provided she could pace herself, but she would have difficulty by reason of her physical disabilities in travelling to work. According to them, she herself was anxious to do some work, and it would be very good therapy for her.
In relation to the household assistance which the plaintiff would require in the future, a witness was called from the National Manpower Service, the effect of this evidence being that a housekeeper for five days would cost approximately £130 per week and for a relief housekeeper for the remaining two days approximately £40 per week, making £170 per week in all. The defendant’s case on this issue was that the reality is that it was extremely likely that the plaintiff’s family, who are a very close-knit family, would continue to look after her, and that, at best, assistance only on a part-time basis would be necessary.
It is against this background that the question must be considered as to whether all or any of the four items in dispute, namely, the loss of earnings, the cost of a housekeeper, the general damages to date, and the general damages for the future, are excessive. It is well settled that this Court cannot set aside the verdict of a jury on the grounds that the damages are excessive unless, adopting a view of the facts which is most favourable to the plaintiff, no reasonable proportion exists between the amount awarded and the circumstances of the case — see McGrath v Bourne, IR 10 CL 160; Foley v Thermocement, 90 ILTR 92. Applying this standard, the amount of damages awarded in this case, namely £551,354, is in my opinion excessive — and this is not to minimise the gravity of the injuries sustained by the plaintiff. In assessing the damages, the jury were required to consider the evidence, not only with sympathy and understanding for the plaintiff, but also with fairness to both the plaintiff and the defendant, as the administration of justice is not a one way operation. Counsel on behalf of the plaintiff submitted that the plaintiff’s condition was as bad as is that of a paraplegic. I cannot agree. But even if it was, the amount awarded for general damages (£250,000) is considerably in excess of any sum awarded in any case that has come to this Court even for a paraplegic or a quadraplegic.
We have been invited by both the plaintiff and the defendant to assess the damages rather than send the case back for a retrial and it is necessary therefore to consider each of the four items of damage in dispute.
*201
Loss of earnings
Under this heading the jury were required to assess the prospective value of the earnings which, if uninjured, the plaintiff would have been likely to earn. It has been decided by this Court in many cases over the past twenty years that where future loss of earnings, or a likelihood of regular necessary payments for medical, hospital or other expenses, form a substantial element of the plaintiff’s claim, an actuary should give evidence. That was done in this case and Mr Reddin, who is a well-known actuary practising in Dublin, gave evidence on behalf of the plaintiff. His evidence establishes that the present value of £100 per year to age sixty is £1,606, to age sixty five £1,684, and for life is £1,812. In calculating the present value of £100 per year the actuary allows for the possibility of death, using standard mortality tables, having regard to the sex of the plaintiff, and allowing for changing interest rates. Using the figure given for age sixty five as a multiplier, the loss suffered by the plaintiff on that basis would be £123,000 odd. This figure would not, however, and does not take into account the marriage prospects of the plaintiff. Nor does it take into account any risk of unemployment, redundancy, illness, accident or the like. It assumes that the plaintiff, if uninjured, would have continued to work, week in and week out, until retirement and would have in effect guaranteed employment, at a constantly increasing annual rate of wages, until retirement or prior death.
When actuarial evidence first came into regular use in cases such as this in our courts, employment was then, and was for many years thereafter, reasonably stable and actuarial figures could be applied by juries with reasonable confidence, even though they have always been directed by the trial judge that such figures are intended only for their assistance as a guideline and that they are not bound to accept them. Whilst the mathematical calculations made by the actuary are constant and correct, they should be applied in the particular circumstances of every case with due regard to reality and common sense. There is now a high rate of unemployment, not only in this country but in Great Britain and in most of the member states of the E.E.C. The numbers of redundancies in and indeed closures of firms in recent years — firms which would have been regarded as of unshakable financial soundness — must inevitably lead to the conclusion that there is no longer any safe, much less guaranteed, employment. This is a factor which in my view juries should be required to take into account in assessing future loss of earnings in any given case, but the matter should be canvassed in evidence and in argument. Experience in other cases shows that in the case of seriously injured plaintiffs the tendency is for a jury to take the highest multiplier and the highest possible multiplicand to arrive at the prospective losss of earnings, and this is understandable when they have before them a seriously injured plaintiff.
In the present case, the jury awarded £144,000 for loss of earnings even though it was accepted by the plaintiff’s counsel that the highest sum, using the actuary’s figure, should have been £123,000. Even this latter figure took no account of the matters to which I have referred but as they were not canvassed *202 in this case, I would only reduce the sum awarded under this heading to £123,000.
Cost of housekeeper
Under this heading the jury awarded a sum of £115,000. At the actuarial calculation of £1,812, this works out at a sum of £123 per week, constantly increasing annually throughout life. The plaintiff was contending for £170 per week but the jury clearly did not accept that figure. The learned trial judge invited the jury ‘to keep their feet on the ground’, as he put it, in considering the damages under this heading and invited the jury to be reasonable about this particular heading of damage. It is unlikely that the plaintiff will require any more assistance than would an elderly feeble person, and although the sum awarded was higher than the figure I would award in the particular circumstances, and was clearly higher than the sum the learned trial judge would have awarded had he been assessing the damages, it is nevertheless within the range of damages which, on the evidence, could be found by the jury and I would not interfere with it.
General damages
The jury awarded general damages to-date of £100,000 and for the future £150,000. In my judgment, each of these figures is excessive. In respect of the three years to the date of the trial I would award the sum of £50,000. In respect of the future, I would award the sum of £70,000. The plaintiff’s injury is unusual and indeed, in so far as cases which have come before the courts are concerned, is almost unique. Notwithstanding or even in spite of her disabilities the plaintiff is able to pay regular visits to the members of her close-knit and loving family, without whose support she would be unlikely to have reached the state of rehabilitation which she has now reached. She has travelled with members of her family on holidays to the United States, to Spain, to England, and to Waterford with some regularity, and she seems to enjoy these holidays. She will now have a substantial capital sum to enable her to enjoy life even more.
In relation to general damages and in particular to general damages for the future, in my view the fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort having due regard to her disabilities, should be reflected in the amount of general damages to be awarded. It would in my view be desirable that in a case such as this the jury should be directed along those lines.
I should like to add one further general comment. In a case such as this, where damages are to be assessed under several headings, when the jury has added the various sums awarded and arrived at a total for damages, they should then consider this total sum, as should this Court on any appeal, for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered, or whether it is out of all proportion to such circumstances. In my view, the *203 income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury, and this Court on appeal, should take into consideration in arriving at a conclusion in this behalf. In the case of large capital sums, a very substantial income can be obtained, whilst preserving the capital intact, notwithstanding the ravages of inflation. This is a factor which has in fact been taken into consideration by this Court in very many cases within the past ten years.
The total of these sums namely £41,404, £950, £50,000, £123,000, £115,000 and £70,000, comes to £400,354 and I would allow the appeal, reduce the damages to that sum, and give judgment accordingly.
On this appeal, the damages have been assessed by the court at the request of and with the consent of both parties. The right of the court to assess the damages notwithstanding objection on the part of one or both parties does not therefore arise. However, I should point out that the court has on many occasions in the past ten years, of which I can speak with some knowledge, exercised this ‘right’ in many cases in which the court considered it was appropriate to do so, and I am aware that prior to that time the court also exercised this ‘right’ in appropriate cases. I mention this matter only lest my silence on the question might indicate acquiescence in a possible contrary view.
McCARTHY J
(dissenting in parts): This is an appeal by the defendant against an award of damages by a jury, after trial before D’Arcy J, in July 1982, in a total sum of £551,354, the composition of which I shall detail later. The sole issue at the trial was the amount of the damages.
The plaintiff was born in the City of Waterford on 14 March 1955, being the youngest of eleven children; her parents are still alive and well, now in their seventies, and it is proper to say at the commencement of this judgment that the evidence showed a striking example of a united and loving family who, from the time of a dreadful accident being sustained by the plaintiff, have gone to very great lengths to alleviate her distress and comfort her in every way. No doubt such care has contributed significantly to her recovery, such as it is.
The plaintiff was educated in the Presentation Convent in Waterford where she got the intermediate certificate standard which she passed with three honours then obtaining clerical work locally, including a period of 2½ years with the PMPA Insurance Company Ltd in Waterford, by which company she was employed in Dublin at the time of the accident, and which company, incidentally, insured the present defendant. After 2½ years in Waterford with the PMPA she stayed with one of her sisters in Cheshire in England for about one year, working part-time for her brother-in-law and doing some travelling on the Continent. She returned to Dublin and recommenced employment with the PMPA as a clerk typist and was so employed, and living in Dublin, when she was involved in a motor accident on 4 June 1979, in which she sustained serious injury which may be summarised as severe damage to the brain stem and considerable damage in the upper part of the brain. Whilst the injury may be so summarised, it would be wrong to seek to summarise the *204 effects of these injuries as detailed in the evidence of doctors and members of the plaintiff’s family in the course of the trial. In the course of his submissions, which lost nothing by their brevity, Mr Maguire, leading counsel for the plaintiff, described the result as ‘a tragic combination of physical disability and memory loss for a young lady who had suffered so much that she had wished to die and, still, in moods of depression wished to die’. She had spent a total of eighteen months in hospital, had undergone four major operations, one of them unsuccessful, suffering, as she does, from a rare complication in the excessive growth of bone. I refrain from citing further from the graphic picture painted by Mr Maguire, not because of any question as to its accuracy, but, rather, to prevent undesirable comparisons of the amount of damages in one case of personal injury with another, since in these myriad cases of single instances, no satisfactory method of comparison can be evolved. I do not accept, however, the proposition that the plaintiff’s plight is worse than that of a paraplegic; I test such a submission by seeking to consider what would be the attitude of a paraplegic to such a view — can it ever be said that a person permanently confined to a wheel-chair is in a better position than someone who, albeit with difficulty, can nonetheless walk about unaided by another.
The conventional description of damages awarded for personal injuries sustained through the tortious act of another is to ask a jury to award such sum as will, so far as money can do so, put the plaintiff in the same position as he or she would have been if the tortious act had not occurred. In any case where the damages include any element other than direct compensation for objective monetary loss, it is self-evident that the method of comensation is imperfect. Imperfection, however, whilst offending against the principle of justice, is not confined to the remedies at law available for a variety of wrongs, both public and private. Imprisonment of a criminal provides no true remedy for an individual damaged by the crime; damages for defamation cannot recall the defamatory matter. The law is, indeed, always an imperfect and inadequate human division into compartments of the divine concept of justice. It is, to say the least, unlikely that an individual would willingly submit to a given injury on being offered a sum of money which might be thought commensurate with such an injury when damages came to be assessed by a jury. Equally well, it would be poor consolation to the injured individual to be given the opportunity of inflicting the self-same injury on the person who had injured him. In the result, the formula already outlined, albeit unsatisfactory, is the established method and must be used both at the trial and as the template to be applied by this Court when called upon to review any such award. There are, however, certain principles that appear to me to be of general application when such an award comes for review:
1. Direct monetary loss. The plaintiff must provide a concrete evidential basis for this calculation both as to past and future loss.
2. In the calculation of future loss, that evidence must include a satisfactory basis of assessment by way of an appropriate multiplier being applied to a reasonably accurate continuing item of loss.
3. The application of such a multiplier is only as a guide — it is a pathway and *205 not a tram-line — coloured, as the jury may consider proper, by such factors, if relevant, as marriage, taxation, and prospects of permanent employment. This is not to exclude other factors which may prove relevant.
4. The total of the amount so calculated, as to loss, past and future, is not, of itself, an argument for interference with the award. In other words, the fact that such total may appear to be a high figure is no ground for interference, where each individual figure, making up the total, is reasonably supportable on the evidence.
5. In contrast with the approach to a review of an award under the headings of past and future actual loss, the courts approach in reviewing an award, commonly called that of general damages, may, essentially, be one of first impression. Such damages are frequently stated to be for pain and suffering; they would be better described as compensation in money terms for the damage, past and future sustained to the plaintiff’s amenity of life in all its aspects, actual pain and suffering, both physical and mental, both private to the plaintiff and in the plaintiff’s relationships with family, with friends, in working and social life and in lost opportunity.
It is only in respect of general damages that it is appropriate to adopt the method of approach set out by the former Supreme Court in Foley v Thermocement Ltd 90 ILTR 92.
7. In such a review of general damages, in order to warrant interference with the award, the disparity between the views of the individual members of this Court and each item of the award itself, however large it may be expressed in isolation, must be a significant percentage of that item of the award, as a general rule not less than 25 per cent. Despite pressures from time to time to remove, by legislation, from the province of a jury the assessment of such damages, the Legislature has, consistently, refused to do so. This factor emphasizes that this Court should be reluctant so to interfere and, in particular, to avoid relatively petty paring from or adding to awards.
8. The annual or other income which may, on its face, be realised by the whole or any part of a total award is irrelevant to any such review. I profess no competence to determine the relative effects of varying interest rates, the falling value of money, the hazards of even the most apparently solvent companies in which money may be invested for capital growth and the many other factors which exercise the minds of merchant bankers and the like, not always with success.
The instant appeal
The damages, in the instant appeal, were awarded under six headings:
(a) Special damage to date, including loss of earnings — £41,404.00. This was an agreed figure and does not require comment.
(b) For dental treatment — £950.00. This item was the subject of the notice of appeal, but has not been pursued.
(c) General damages to date — £100,000.00.
(d) Loss of earnings in the future — £144,000.00.
(e) Cost of housekeeper in the future — £115,000.00.
*206
(f) General damages in the future — £150,000.00.
Future loss of earnings
The plaintiff sought to make a case that such damages should be assessed on the basis of her prospects of her earning, while working in England, a salary significantly greater than that which she enjoyed with the PMPA Insurance Co. Ltd. It is clear that the jury rejected this claim as one wholly unsustainable; it is equally clear that the jury did not limit the plaintiff to the level of earnings, subject to average increases, that she would have earned with the Insurance Company, which would have limited this item certainly to not more than about £123,000.00. At the hearing, no attempt was made to determine the impact, if any, of marriage statistics or taxation on this item of assessment. I do not apportion responsibility for this absence of evidence on either side; it seems to me to be the responsibility of both sides to explore such questions, and were it not for the expressed request on behalf of both parties that in this as in all other items of the jury’s award, this Court, if interfering with any such item, should reassess the same, I would be disposed to direct a new trial on this issue. It may well be, however, that the impact of these two factors would have been negligible — that those employed as the plaintiff was by the Insurance Company do not give up their employment on marriage, on the one hand, and that the amount of the multiplier would be so increased, on the other hand, as to compensate for the reduction in the multiplicand.
Future cost of housekeeping
The learned trial judge clearly and succinctly directed the jury that they were entitled to award the plaintiff a sum significantly greater than the figure of £115,000.00 under this heading, albeit that he made a miscalculation in the multiplier which he applied by way of example. The jury, however, had heard the evidence — indeed the relevant evidence was that of the last witness whom they heard, and I am not prepared to hold that the jury was misled by the judge’s calculation. No objection was taken at the end of the charge to the judge’s suggestion that the jury might, as it were, water down the total under this heading, and I would not entertain any such objection now. For that matter, I would wish to express in the strongest terms my reluctance to entertain any criticism of the rulings of or charge by a trial judge when no such objections were made at the trial. I would uphold this item of the award.
General damages
Despite the observations I have made in respect of criticism of the total of the award, it does seem to me appropriate that this Court, in reviewing awards under the heading of general damages should look both to the items separately and as a whole. Mr Maguire has painted a moving picture of the plaintiff’s plight; the members of this Court have seen the plaintiff in private, attended by her solicitor and the solicitor for the defendant. She is, obviously, a rather pathetic young woman, grievously injured and, as was said, having to face some forty or fifty years of life suffering from a severe impairment of that *207 enjoyment of life to which she was entitled. She is, however, far from being as disabled as a paraplegic or a tertraplegic — there are many things she can do which are quite outside their compass. It may well be that awards such as she obtained can be justified in the case of those who sustain such dreadful paralysing injuries. Such is not the case here. Applying, as I do, the tests outlined in Foley’s case, I am of opinion that both separately and jointly the awards under this heading bear no reasonable relationship to the injuries sustained and must be set aside. In reassessing these amounts, however, I believe this Court should seek to adopt a generous approach. I would assess the damages accordingly at £60,000.00 — the figure suggested by counsel for the defendant for past general damages and £100,000.00 for future damages, which sum is £10,000 more than that suggested by such counsel.
In the result, I would reduce the total award by the sum of £90,000. The plaintiff has cross appealed the award in respect of the cost of a housekeeper, but that appeal was not pursued.
I have not heard argument and I reserve for future consideration if necessary the question as to whether or not, without the consent of both parties, this Court has power to substitute its own assessment of damages in place of that of a jury.
Martin Sinnott v Quinnsworth Ltd, Córas Iompar Eireann and Edward Durning
1983 Nos. 245, 252 and 257/83 and 1984 No. 10
Supreme Court
29 June 1984
[1984] I.L.R.M. 523
(O’Higgins CJ, Henchy, Griffin, Hederman and McCarthy JJ)
O’HIGGINS CJ
delivered his judgment on 29 June 1984 saying: The plaintiff in these proceedings was a passenger in a motor vehicle owned by the first-named defendant (Quinnsworth) and driven by the third-named defendant (Durning) who is an employee of Quinnsworth. The plaintiff was a trainee manager and was also employed by Quinnsworth. At the time of the accident he was being driven to assist at the opening of a new Quinnsworth store. The car in which he was a passenger was in collision with a bus the property of the second-named defendants (CIE). As a result of the collision the plaintiff sustained very serious injuries. In these proceedings he has sued all three defendants for damages and has been awarded against the three defendants a total of £1,484,591.72. From this award, each of the defendants have appealed both as to the findings of liability in which each is involved and as to the amount of damages awarded. Each defendant has also appealed against the jury’s apportionment of only 2% in respect of the contributory negligence which was found against the plaintiff.
The accident occurred on a bend on the road between New Ross and Enniscorthy. At the point at which it occurred, the road was 20 feet wide and there was a continuous white line down what was approximately its centre. The bus was travelling in the direction of Enniscorthy and for it the bend was a right-hand one. The car invovled in the collision was a Fiat, and it was being driven in the opposite direction. For it the bend was a left-hand one. After the accident the bus was in on a low stone ditch on its left-hand side, facing Enniscorthy, with a clearance of 3¼ feet between its right-hand side and the continuous white line. The Fiat was also facing Enniscorthy and was on its correct side — it had turned completely around as a result of the impact. Both drivers gave conflicting accounts of what had happened. Edward Durning, the third-named defendant and the driver of the Fiat car, said that, as he was driving at about 40 miles per hour around the left-hand bend, he was suddenly confronted by the bus on his side of the road and the collision occurred. He denied that he had any responsibility for the accident and put the entire blame on the bus driver. Patrick Malone, the bus driver, had a different story to tell. According to his evidence the bus approaching the bend was being driven at about 25 miles per hour, some 2 feet in from the continuous white line, on its correct side of the road. At this point the Fiat car came around the bend at a very fast speed, crossed over the white line and crashed into the bus. Mr Malone said that, on seeing the approach of the Fiat, he applied his brakes and was almost stopped at the moment of collision. Following the collision the bus rolled on into the ditch on its left-hand side. The plaintiff, who was a passenger *526 in the Fiat car, had no recollection of the accident. This was, of course, due to the injuries which he sustained. Apart from garda evidence as to the post-accident measurements and damage, there was no other evidence as to the occurrence of the accident. The position was, therefore, that, at the conclusion of the trial, the jury were faced with two conflicting and contradictory accounts of how the accident occurred. These two accounts involved each driver attributing the complete blame for the collision to the other for precisely the same reason — crossing the white line to the incorrect side of the road. In such circumstances one would expect that the jury would have determined responsibility for the accident by deciding which of the drivers they believed, and in so doing, determining which driver was on his correct side.
Faced with this conflict of evidence the judge originally intended to put the issue to the jury by asking them to decide, in relation to each driver, whether he had crossed the white line or was driving on his incorrect side of the road. Unfortunately, following a discussion at the Bar, the judge decided to add a further question in relation to each driver. This question was whether he was driving as close as practicable to the left-hand side of the road. A question to this effect appeared on the issue paper with the word ‘practicable’ used in relation to Edward Durning and the word ‘possible’ used in relation to the CIE driver. Questions on liability so framed must have had the effect of inviting the jury to conclude that although one driver had driven his vehicle across the white line and so collided with the other vehicle, the driver of that other vehicle, although driving on his correct side of the road at the time of the accident, could also have been responsible if he was not as close as practicable or possible to his left-hand side. An invitation to impute fault to either driver on this basis was not, in my view, justified by the evidence. In particular, I note that no suggestion had been made in the course of the trial to either driver that, assuming he was on his correct side at the time of the collision, he was nevertheless at fault by failing to drive or keep as close as practicable or possible to his left-hand side. The clash and conflict at the trial was concerned, and solely concerned, with the issue as to which driver was driving at the time of the collision, on his correct side. To suggest to a jury, by a question to that effect, or, otherwise, that a driver of a vehicle on the roadway has at all times general duty to drive as close as practicable or possible to his left side is to mislead.
I do not overlook the fact that there may be circumstances, as envisaged by the Road Traffic General Bye-Laws 1964 (SI No. 294), when a driver is obliged to drive close to the left-hand side of the roadway. Such circumstances are referred to in Regulation 17 of Part III of these bye-laws. In my view, this regulation had no application in the circumstances of this case and, of course, imposes no general duty on a driver to drive at all times as close as practicable to his left-hand side.
In the result the jury answered the questions put to them by the judge to the effect that Edward Durning, the driver of the Fiat, was negligent in crossing the white line in the centre of the road and in failing to keep as close as practicable to his left-hand side. As to Patrick Malone, the driver of the bus, *527 the jury held that he was not driving on his incorrect side of the road but was negligent in failing to drive as close as possible to his left-hand side. The jury, further, apportioned responsibility for the collision as to 78% on Edward Durning and 20% on the bus driver. It follows from these findings that the jury determined the conflict of evidence which was before them in favour of the bus driver and that, if the issue of negligence were confined to the determination of this conflict, they must necessarily have adjudged that Edward Durning was solely responsible for the collision.
As parties to this appeal, CIE, in their notice of appeal, have questioned the jury’s findings on fault in the following terms:
That the finding of the jury that the second-named defendant was at fault to the degree of 20% or at all, was perverse and against the weight of the evidence, and inconsistent with the replies given by the jury in relation to the questions 1(a) and 2(a) on the issue paper herein.
The reply to question 1(a) was the finding that Edward Durning had crossed the white line, and the reply to question 2(a) was the finding that the bus driver had not driven on his incorrect side of the road. Counsel for CIE submit that in reality this ground of appeal calls in question the leaving of a question as to the bus driver’s failing to drive as close as possible to his left-hand side and, of course, the jury’s finding thereon. While this ground of appeal could have been couched in clearer language, I am of the opinion that this submission is correct and that this ground of appeal does put in issue the leaving of this question. It is, therefore, on this basis that I propose to consider this ground of appeal.
I may say at once, having regard to the matters which I have already mentioned, that there should be no difficulty in these appellants succeeding on this ground. There should not be, but there is. This difficulty arises from the conduct of the trial in so far as these appellants are concerned. I have read with care the portions of the transcript which deal with the discussion between the judge and the Bar as to the questions which he contemplated putting to the jury. It is apparent from this discussion that the disputed questions were proposed by the judge and no objection to his proposal was raised by counsel for any of the appellants. In such circumstances, the judge was entitled to conclude that the questions, as suggested by him, were being put to the jury with the consent of all parties. The judge’s charge, which followed the questions which he left to the jury, opened up the possibility of a finding of joint negligence on the part of both drivers, even if the jury found one of these drivers to have been on his correct side. Again, no objection was taken to the judge’s charge in this respect. Normally, in such circumstances, this Court would not interfere, but would conclude that all parties remain bound by the manner in which they contrived or agreed that particular issues be decided by a jury. This certainly should always be the rule where alternative issues on the evidence may go to the jury or where there may be alternative ways of putting a particular issue. In this case, however, I can find no justification at all in the evidence for putting the question now in issue. If there were any such justification *528 or basis I would not interfere. There, however, being none, I feel bound to say that justice requires that the mater be put right on this appeal.
On the evidence at the trial the only issue properly to be considered by the jury was which of the two drivers concerned was, at the time of the collision, on his incorrect side of the road. No other question should have been put. In my view, the jury decided the issue of responsibility for the collision when they decided that the driver of the Fiat crossed the white line and that the bus driver was at the time on his correct side of the road. This decision and finding by the jury amounted to a finding of total responsibility for the collision on the part of Edward Durning.
Quinnsworth and Edward Durning have also appealed against the apportionment of 78% fault made against them on the ground that such percentage was excessive and perverse. Because of my conclusion that the jury’s finding of fact as to the cause of the collision should be treated as a finding that Edward Durning as the driver of the Fiat was solely responsible for the collision, this appeal against the apportionment is wiped out by the fact that, vis-a-vis CIE, Quinnsworth and Edward Durning must be held to be 100 per cent at fault for the accident. I deal separately with the question of apportionment of fault arising from contributory negligence as between these defendants and the plaintiff.
I now turn to the question of contributory negligence. The jury found that the plaintiff was guilty of contributory negligence in failing to wear a seat belt. Having so found, however, they only assessed a 2% degree of fault on the plaintiff. Each of the defendants complain that this apportionment was unreasonably low and should not be allowed to stand. There is no complaint that the jury were not entitled to find that the plaintiff was not wearing the belt. There was evidence from which such a failure on his part could be inferred. Part of the evidence to support the allegation was that of Mr Patrick Carey, the well known neuro-surgeon. He stated that having regard to the facial and other injuries suffered by the plaintiff the probability was that he had not been wearing a seat belt. He went on to say that had the plaintiff been wearing a seat belt the chances of his sustaining the appalling injury which he suffered would have been reduced by about 25%. In the light of this evidence, if the jury had found that there was no contributory negligence on the part of the plaintiff such finding would have been perverse. The jury apportioned only 2% on the plaintiff. This Court has frequently stated that in no case can such a small percentage as 2% be warranted. The evidence in this case, in my view, justified and required a finding of at least 15%. I would substitute this percentage for that recorded by the jury.
I now turn to the question of damages. These were assessed by the jury under the following headings:
1. Out-of-pocket expenses to date (agreed)
£82,498.10
2. Loss of earnings for the future
£111,086.62
3. Cost of care for the future
£439,674.00
4. Out-of-pocket expenses for the future
£48,768.00
5. General damages to date
£224,000.00 *529
6. General damages for the future
£576,000.00
7. Lost years
£2,565.00
TOTAL:
£1,484,591.72
No dispute arises on this appeal as to items numbers 1 and 7. Items 2, 3 and 4 relate to other headings of special damage and the amounts awarded by the jury have been challenged on appeal. Items 5 and 6 relate to general damages and total £800,000. I propose first to deal with the three disputed items of special damage and then to deal with the general damages.
Loss of earnings for the future, £111,086.62
At the trial there was evidence, which was accepted by the defendants, that had the plaintiff been uninjured he would at the time of the trial be likely to earn the sum of £136 per week in respect of wages. It was also accepted there was diminution in his expectation of life as a result of the accident — Mr Carey, his neuro-surgeon, estimated his expectation of life to be from 18 to 20 years from the time of the accident, whereas Dr Gregg, the Director of the National Medical Rehabilitation Centre in Dun Laoghaire estimated his expectation as 18 to 20 years from the time of the trial. There was also actuarial evidence of the present value of £1 per week for different periods, the multiplier in respect of 18 years being 762. It is quite clear that the jury accepted that the plaintiff was likely to have an expectation of 18 years from the time of the trial and that the parties agree that the figure for wages (132 × 762) is £100,584. The trial in this case took place before judgment was delivered in this Court in Cooke v Walsh [1984] ILRM 208 but no abatement is sought by the defendants in line with the decision of this Court in that case.
Cost of care for the future, £439,674
For the five years prior to the trial, with the exception of periodic stays in hospital which was necessary for his treatment, the plaintiff has lived at home with his mother and father, and a brother and sister. As the house in which the family formerly lived was not sufficiently convenient or large for the plaintiff in his present condition, the plaintiff and his father, in anticipation of recovering damages in this case, jointly purchased a bungalow which has five bedrooms. Both the plaintiff and his parents would prefer that he should live at home and indeed for the entire of the period prior to the hearing of the action, he was looked after exclusively by his family who had to do everything for him. He is quadriplegic, with paralysis and sensory loss and loss of control of bladder and bowel and is totally dependent on others. He cannot transfer from his bed to the wheelchair, cannot dress or prepare food, he cannot turn in bed and must also get assistance in eating. He has, as the learned trial judge rightly pointed out to the jury, been attended with love, care and attention by his devoted family, who provided for him what Dr Gregg called nothing less than excellent care. Dr Gregg in evidence stated that it would be only reasonable to provide a backup housekeeping assistance, to relieve his mother from the household duties to enable her to attend to him for some hours in the *530 day, and also assistance by way of what he called a male orderly to help in carrying out the functions that had been provided by the family and thus give them some relief in respect thereof. It is in respect of such assistance that the claim under this heading arises. There was evidence that a male orderly would cost £127 for a forty hour week and that a housekeeper coming in for a forty hour week would cost £80 (at a cost of £2 per hour).
Using the multiplier of 762, the figure allowed by the jury represents £577 per week. This figure, is, in my opinion, wholly unreal and unsustainable, and, as was pointed out during the argument on the hearing of the appeal, would represent three orderlies and two housekeepers per week. Cases such as the plaintiff’s are tragic in the extreme, but must nevertheless be approached with reality.
In discussing this topic, Dr Gregg at Question 790 said.
There are other people of his vintage who do effectively even live on their own, with a male orderly coming in for sessions during the day.
The family is a very close and devoted family and would undoubtedly want to take some part in looking after the plaintiff and I would agree with Mr Hickey who on behalf of the defendants submitted that one orderly at £127 per week and one housekeeper at £80 per week would be reasonable and realistic. The orderly would capitalise at £96,774 and the housekeeper at £60,960.
Counsel for the defenant also conceded that an allowance of an additional £60 per week could be made for part-time assistance and this capitalises at £45,720. It is not clear to me what this sum purports to represent, but as it is an agreed allowance on the part of the defendants it should be added to the other sums. The total of these three sums is £203,454.
Out-of-pocket expenses for the future, £48,768
Under this heading, it is conceded by counsel for the defendants that this sum is too low and omits certain items which should have been included in it. In evidence, Dr Gregg stated that, in addition to the male orderly and housekeeper, it would be advisable that a trained nurse should visit the plaintiff for one or two hours on alternate days to deal with bowel care, to inspect his skin to make sure he is looking after it, and generally to maintain standards. Such a nurse would cost £40 per week, and would capitalise at £30,480. Because of his medical condition, Dr Gregg in evidence proposed that it would be reasonable to provide certain appliances for the plaintiff — these included an electric hoist to enable him to get in and out of bed, and three wheelchairs — a portable one to carry in a car with him, an electric wheelchair for use around the bungalow, and around the neighbourhood, and a wheelchair with a reciprocating unit which is mobilised. These would cost £300, £1,800 and £1,000 respectively, would have to be maintained, and would need replacement every three to five years, which, to the layman, would seem to be extremely frequent. In addition to the different appliances, there would be items of expenditure such as additional heating, lighting, telephone, clothing, incidentals, and general practitioner visits. All of these items were reduced to a weekly sum *531 and the agreed figure in respect of them was £64 per week. That sum capitalises at £48,768.
The plaintiff will also need to attend hospital from time to time as an in-patient, and that was also reduced to a weekly sum which will amount to £68 per week. That was the evidence given at the trial, and counsel on behalf of the defendants say that this sum is not payable as it is covered by the decision in Cooke v Walsh [1984] ILRM 208 and was at the rate and under the circumstances condemned by this Court in that case. Having regard to the capital sum which the plaintiff will have when this appeal is concluded and to the income which that sum will generate, the plaintiff will clearly have, at the very least, what has been called partial liability in the relevant regulations. As the figure of £68 per week was an agreed figure in the High Court, and as we have no evidence before us of any other figure for which the plaintiff might be liable, I would allow the sum of £68 per week, and that capitalises at £51,816. The sum of these three figures is £131,064.
It follows that, in my view, there should be substituted, for the sums awarded by the jury, in respect of items 2, 3 and 4, the following sums, viz: £100,584, £203,454 and £131,064. The other items of special damage should remain unaltered.
General Damages
I now turn to consider the general damages assessed by the jury in this case. General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the plaintiff. While, as in this case, a jury is usually asked to award two sums, one in respect of general damages for the period from the infliction of the injury to the date of trial, and the other fro the future it is proper that (in this Court) regard should be had to the total of the two sums so assessed when considering whether the award is fair and reasonable. Further, it is necessary to bear in mind what was said by Griffin J in relation to general damages in giving this Court’s judgment in Reddy v Bates [1983] IR 141. In that case he said (at p. 148):
The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded … In a case of this nature where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this Court on any appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances. In my view, the income which that capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this Court on appeal) should take into consideration in arriving at a conclusion in this behalf.
In this case the injury which the plaintiff suffered has changed him from being an active, healthy young man on the threshold of adult life, into a helpless, dependent, paralysed being, conscious of what he has lost and facing *532 a bleak, uncertain and limited future. To talk of compensating for such a terrible transformation is to talk of assaying the impossible. Nevertheless, it is this impossible task which the court must attempt in endeavouring to determine, in terms of money, compensation for such an injury. The danger is that in so doing all sense of reality may be lost. Since money cannot possibly compensate, a jury may question whether it matters what sum is awarded. To such a question, if asked, the answer must be that it does matter. It matters to the defendant or his indemnifiers, and, would be a ground for legitimate complaint, if the sum awarded were so high as to constitute a punishment for the infliction of the injury rather than a reasonable, if imperfect, attempt to compensate the injured. It also matters to contemporary society if, by reason of the amount decided upon and the example which it sets for other determinations of damages by juries, the operation of public policy would be thereby endangered.
In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this, regard must be had to the fact that every single penny of monetary loss or expense which the plaintiff has been put to in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to the past and the future and the cost of the special care which his dependence requires, and will require, for the rest of his life. What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money. It may be that in addition, on the facts of a particular case, other matters may arise for consideration in assessing what, in the circumstances, should be considered as reasonable. However, a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation. In this case the jury assessed general damages at a total sum of £800,000. In my view, such an assessment lacks all sense of reality. It matters not at all what proportion of such a sum is attributable to pain and suffering for the past and what for the future. What is important is the total and this is a sum which if invested would yield a yearly income which in itself would defy even the most profligate expenditure. Such a sum bears no relation to ordinary living standards in the country or to the income level of even the most comfortable and best off in our community. Further, it could not bear any reasonable relation to the uses to which the plaintiff by reason of his injury could put money awarded as damages. In my view, unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am *533 conscious that there may be changes and alterations in the future, as there have been in the past.
I would, accordingly, set aside the total award of £800,000 in respect of general damages, and substitute therefor a total sum of £150,000.
As to the separate appeal by Edward Durning against the judgment awarding Quinnsworth a complete indemnity against him in respect of damages and costs, I agree with the conclusion reached in the judgment that McCarthy J is about to deliver that that appeal should be dismissed.
HENCHY J:
I agree with the judgment of the Chief Justice.
GRIFFIN J:
I also agree with the judgment of the Chief Justice.
HEDERMAN J:
I agree with the judgment of the Chief Justice.
McCARTHY J:
1. The defendants’ liability
I have read the judgment of the Chief Justice and I wholly agree with his conclusion that the entire responsibility for the accident, as such, lies with the driver of the car.
2. Contributory negligence
This issue was solely related to the question of whether or not the plaintiff was wearing a seat belt at the time of the accident and the degree, if any, to which not wearing a seat belt contributed to the injuries sustained. The driver of the car had no recollection in this regard; nor had the plaintiff, whose practice it was to wear a seat belt travelling. The only other evidence, on this issue, was that of Mr Patrick Carey, the neuro-surgeon, to which the Chief Justice has referred. His evidence, on this issue, was brief and I think it right to quote it:
739 Q. This is the classic injury the wearing of a seat belt would have prevented.
A. Certainly lessen.
740 Q. I take it it is unlikely Mr Sinnott could have been wearing a seat belt if he struck the dashboard. Isn’t this common sense?
A. This depends. I would not be a 100% certain. It would certainly reduce the likelihood.
741 Q. We are only dealing with probabilities. Isn’t the probability he wasn’t wearing one if he struck the dash?
A. I would have thought so.
742 Q. Assuming he had been wearing a seat belt, is it possible to say he would be paralysed to the extent he is or at all?
A. It certainly reduces the severe injury and death by about 25%. It doesn’t prevent them, it certainly reduces the frequency of these serious injuries following accidents.
743 Q. So as we can get it clear, does it mean had he been wearing a seat belt he would have a 25% better chance of avoiding paralysis?
A. I am saying in a similar accident instead of a 100 people being injured and paralysed only 75 would be — that is the kind of conclusion I draw from the figures. I don’t think I can draw anything else. It depends on many things, the speed of impact.
744 Q. Putting it in rough terms he would have 25% prospect.
Judge: It seems that when seat belts are compulsory the medical figures suggest serious injury, death an serious injuries reduced by about 25%.
A. Where a person is wearing a seat belt.
745 Mr Hickey: If it is not such a serious accident it reduces even more?
*534
A. Yes …
749 Q. Mr Liston: One thing, as you have been invited to deal with probabilities, you were asked about hitting the dashboard. Were you aware that in this case the evidence is the car in which he was travelling was struck and would have gone presumably clockwise and turned around in a half circle, and in an eventuality like that, could be thrown to the side were you to take a dead stop?
A. No. We have no evidence — I had no evidence — except what I mentioned he was involved in a road traffic accident.
750 Q. The direction in which you would have been thrown would have been relevant?
A. It would be, and the only reason why was that bruising the lacerations of the face suggested that.
It is also relevant to point out that there was evidence that the windscreen of the car had been shattered and the glass from the front windscreen was on the road (Questions 39–41). I greatly doubt if Mr Carey wished to convey the impression that he was an expert on the question of whether or not wearing a seat belt would prevent an individual striking the dashboard of a car — such an expertise would, I would think, lie more with a motor engineer or, perhaps, with any individual driver or passenger. He is, of course, an expert in the nature of injuries and their consequences. Mr Carey stated that ‘he struck his face against the dashboard and flexed or hyper-extended his neck’. During the course of argument, I asked counsel for the defendants to explain, if possible, the mechanics of this in the context of a seat belt not being worn. I understand the term flexion or hyper-extension to mean a bending or excessive bending forward of the neck in contrast to the whiplash injury — the jerking backward of the neck. I then found and I still find it impossible to understand how the wearing of a seat belt could have lessened the flexion or hyper-extension; indeed, if anything, I would have thought it would have aggravated such phenomena. My difficulty may, indeed, be reflected in the answer to Q. 749 which I have quoted.
During the debate at the Bar on the questions to be put to the jury, counsel for the plaintiff submitted that there was no evidence to go to the jury on this issue, in respect of which the onus lay on the defendants. The learned trial judge, without calling on counsel for the defendants, ruled in favour of leaving this question to which the jury answered — Yes, and apportioned blame at 2%. I agree with the view of the Chief Justice that such an assessment should not be allowed to stand. In my view it has no real meaning. The defendants appealed against this apportionment; the plaintiff did not nor did the plaintiff appeal against the question being left to the jury.
In my view, the defendants had not discharged the onus of proof required of them to show either that the plaintiff was not wearing a seat belt or that, if he were not, then this had a bearing on the injuries sustained. Having regard, however, to the views already expressed by the other members of the court, it is not to the point to elaborate on this aspect of the case.
3. Damages
(a) Special damages.
I wholly agree with the observations of the Chief Justice and the conclusion to *535 which he has come in respect of the several items of special damage upon which this appeal turns.
(b) General damages.
Subject to the two matters to which I shall refer, I agree with the analysis made by the Chief Justice and the conclusion to which he comes.
Income from investment.
The Chief Justice has quoted a passage from the judgment of Griffin J, with whom Hederman J agreed, in Reddy v Bates [1983] IR 141 which passage, itself, was quoted in the judgment of Griffin J, with whom O’Higgins CJ and Henchy and Hederman JJ agreed, in Cooke v Walsh [1984] ILRM 208. Accepting, as I must, that it is proper to look at the global figure awarded, quite apart from an examination of the details comprised in it, I query whether this Court was laying down a principle that those items of the award which comprise past special damage and, or alternatively, future identifiable and concrete loss such as wages or medical expenditure, are to be added together for the purpose of calculating the income that prudent investment might realise therefrom. I do not recall that in either Reddy v Bates or Cooke v Walsh any argument was addressed as to why the income which a capital sum could generate is relevant to the adequacy or otherwise of a jury award. I do not understand any conclusion in respect of this question to be part of the reason for decision of either of these cases and, pending adequate argument on the topic, I reserve my view save to repeat my observation in my judgment in Reddy v Bates (at p. 151) that ‘I profess no competence to determine the relative effects of varying interest rates, the falling value of money, the hazards of even the most apparently solvent companies in which money may be invested for capital growth, and the many other factors which exercise the minds of merchant bankers and the like — not always with success’.
(ii) Settlements.
Quite apart from the knowledge that one gains from sitting in this Court, one cannot but be aware of the very substantial damages frequently paid in settlement of personal injuries claims, as distinct from those in cases where awards are made by juries. Obviously, one cannot have the knowledge of detail of such cases that one would get in the review of cases such as the instant appeal. Subject to that qualification, however, I think it fair to say that there must be many cases in which damages for pain and suffering and loss of amenity of living — generally called general damages — are measured significantly in excess of £150,000 in cases settled between the parties — an injured plaintiff and the insurance company or other party that has to compensate him. The proliferation of personal injuries claims and the significantly high number of serious cases appear to me to have induced among those concerned with the processing of such claims, lawyers, insurers and other indemnifiers alike, a degree of monetary punch drunkenness that has tended to remove reality from such settlements. I have little doubt but that, *536 in such an atmosphere, general damages for injuries such as sustained by the present plaintiff might well be settled at a sum in excess of and, indeed, far in excess of the figure of £150,000 suggested by the Chief Justice as appropriate to this case. That does not mean that they mirror the true measure of damages. I would assess the general damages as indicated in the judgment of the Chief Justice.
4. Indemnity between defendants.
The first-named defendant (Quinnsworth) and the third-named defendant (Durning) has each claimed against the other indemnity and, or alternatively, contribution in respect of the plaintiff’s claim against them. Each such claim is made purusant to s. 21 of the Civil Liability Act, 1961, which reads:
(1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make a contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.
Quinnsworth owned the motor car in which the plaintiff was travelling when, being driven by Durning, it collided with a CIE bus, for which collision the trial jury apportioned 78 per cent of the fault against Durning. The variations in the apportionment of fault made by this Court on the main appeal are not relevant to the issue raised in this appeal.
Quinnsworth’s liability as a concurrent wrongdoer arose from earlier provisions of Part III of the 1961 Act by reason of its vicarious liability for Durning’s negligence. It has no direct liability. Whilst vis-a-vis the plaintiff the case for Quinnsworth and Durning is identical, and they would, ordinarily, have been jointly represented in an action of this kind, at the expense of those affording Quinnsworth motor insurance cover, it would appear that because of an averment in the statement of claim that, at the time of the accident in which he was injured, the plaintiff was travelling ‘in the course of his aforesaid employment’ — his employment with Quinnsworth — this pleaded a liability other than vacarious against Quinnsworth, one, presumably, in respect of which there was a different form of insurance. In the course of his judgment on this issue, Hamilton J said ‘Other considerations dictated the necessity for separate representations and defences to the action. I at all times made it clear to the parties that neither I nor the jury was or should be concerned with these other considerations’. In my judgment, the learned trial judge was wholly correct in this view as he was in respect of the conclusion to which he came on the issue between Quinnsworth and Durning.
In support of his argument that since it was in the course of his employment *537 with Quinnsworth that Durning was driving the Quinnsworth car he was entitled to an indemnity pursuant to s. 21, subs. (1) of the Civil Liability Act, 1961, counsel for Durning cite an extract from McMahon and Binchy, Irish Law of Torts [1981] at p. 92/3:
No contribution will be allowed to a concurrent wrongdoer from a person who is entitled to be indemnified by him. Consequently, a master or a principal will nto be entitled to claim contribution from a servant or agent who would in the circumstances be entitled to be indemnified by the master or principal.
As I understood the argument advanced, it was contended that this statement of principle by the learned authors amounted to a contention that in the circumstances of the relationship of master and servant a servant is entitled to be indemnified by the master. No such statement of principle is to be deduced from the quoted extract which does no more than state the obvious — that where a servant is entitled to be indemnified by the master, the master cannot be entitled to claim contribution from the servant: see s. 21(1) already quoted. In the footnote to the quoted extract, the authors further point out that ‘indemnity is usually only available, however, to “innocent” persons, as for example, where an innocent auctioneer liable in conversion can sue the thief for indemnity: Adamson v Jarvis, 4 Bing. 66; 130 ER 693 (1827)’. The driver of a motor car driven negligently can scarcely be called ‘innocent’ in that context.
Reliance was also placed upon a citation from Vol. 16 of the 4th edition of Halsbury’s Laws of England para. 568 and, so far as concerns the employee’s liability to the employer for negligence, para. 547. The majority decision of the British House of Lords in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 held that the driver of the employers’ lorry was under a contractual obligation of care to his employers in the performance of his duty as a driver, that the employer was entitled to recover from the driver damages for breach of that contractual obligation and that there was no implied term in the contract of service that the driver was entitled to be indemnified by his employer either if the company was in fact insured or was required by the Road Traffic Act, 1930 to be insured, or if, as a reasonable and prudent person, it ought to have been insured. The dissenting opinions held that it was an implied term of such a contract of employment that the employer will see that the driver is protected by insurance from any third party liability arising from his driving and, accordingly, neither the employer nor his insurers can sue the driver in respect of that liability. It is important to note the reasoning underlying the dissenting opinions. If the contention of Durning in the instant appeal were to be upheld then, presumably, where the employer had seen to it as here, that the driver was protected by insurance from any third party liability arising from his driving nonetheless, the employer is to be barred from recovering from the insurer concerned. Calling in aid the observations of Lord Denning MR in the English Court of Appeal decision in Morris v Ford Motor Co Ltd [1973] 1 QB 792, counsel for Durning has made the simple contention that Lister’s case was wrongly decided. It is not for this Court to express a view on the decisions of foreign courts but, merely, where relevant, to express agreement or otherwise with a legal principle stated in such *538 decisions. If there is a principle stated in Morris v Ford Motor Co Ltd appropriate to the present appeal it may be that the case is to be tested according to the principles of equity. A modern adaptation of these principles would, surely, be that those insuring against Road Traffic Act liability should pay the damages in respect of such liability. I do not find it necessary to comment further on the other English cases cited save to express my difficulty in following the logic of McNair J in Harvey v R. G. O’Dell Ltd [1958] 2 QB 78.
S. 118 of the Road Traffic Act, 1961 provides:
Where a person (in this section referred to as the user) uses a mechanically propelled vehicle with the consent of the owner of the vehicle, the user shall, for the purposes of determining the liability or non-liability of the owner for injury caused by the negligent use of the vehicle by the user, and for the purposes of determining the liability or non-liability of any other person for injury to the vehicle or persons or property therein caused by negligence occurring while the vehicle is being used by the user, be deemed to use the vehicle as the servant of the owner, but only in so far as the user acts in accordance with the terms of such consent.
It is, perhaps, of some importance that no comparable provision has been cited from the English statutes; much of the case law in England depends upon the scope of the authority of the driver so as to implicate the owner: see Morgans v Launchbury [1973] AC 127. No such problem arises within this jurisdiction; in my view, the English cases must be read in the light of the absence of any such statutory liability. Passing reference was made in the course of argument to Buckley’s Stores Ltd v National Employers Mutual General Insurance Assoc. Ltd [1978] IR 351 in which the facts were much nearer to the facts in the instant appeal and there is one conclusion in the judgment of O’Higgins CJ of direct relevance (at p. 359): ‘This being so, it seems to me that this case ought to end as it started. It started, and should end, as relating to a simple road accident covered by the usual motor policy …’ The argument for Durning has two aspects: (a) the claim by the negligent driver to be indemnified by his employer who, presumably, employed him to drive safely and (b) the denial of the employer/owner to be indemnified by his negligent servant/agent. Indemnity may arise from contract, by statute, or by implication of law. I find no support for the claim by the driver under any of these headings; no doubt the user within s. 118 of the Road Traffic Act, 1961, is entitled to the benefit of that insurance made compulsory by other provisions of the same Act and may resist personal liability, but that does not mean that because of supposed problems in industrial relations that might otherwise arise, the insurers against Road Traffic Act liability should escape paying in respect of the risk for which they have received the premium. It is satisfying to know that the conclusion at law supports the obvious justice of the result.
I would dismiss the appeal.
Philippa Griffiths v Lambatus Van Raaj
1983 No. 59
Supreme Court
30 July 1983
[1985] I.L.R.M. 582
(Griffin J, Hederman and McCarthy JJ)
GRIFFIN J
(Hederman J concurring) delivered his judgment on 30 July 1984 saying: On 27 October 1977 the plaintiff, then aged 14, was involved in a road traffic accident near her home outside Cahir in County Tipperary. She suffered injuries which by any standard were extremely serious and which have had a considerable effect on her life.
She was born in Wales where her father was a doctor. She was the eldest of four children, her sister being three years younger and twin brothers five years younger. Prior to the accident, she was a happy contented child, of somewhat above average intelligence. Her father died when she was 9½ years old, and she was sent to a boarding school in North Wales when she was 11, winning a scholarship to that school. The family subsequently came to live in Ireland and at the time of the accident she was a day pupil in the school run by the Mercy Order in Cahir, and was in the second year intermediate class, being in the top third of her class.
As a result of the accident she suffered severe brain damage, and was deeply unconscious in hospital for more than two months. She also suffered a fracture of the lower end of the left femur. She was in hospital for over a year — she was a patient in Cashel Hospital, St. Laurence’s (Richmond) Hospital, the National Rehabilitation Centre in Dun Laoghaire, and, for a period of seven weeks, in St. John of God Hospital, Stillorgan. In November 1978 she was transferred to a school for handicapped children in North Wales, and apart from the school holiday periods which she spent with her family in Ireland, she remained there until the Spring of 1981. Although she had made steady improvement in those years, she was for all practical purposes confined to a wheel-chair until the Summer of 1980, and required to use a crutch until the Autumn of the same year. In the Spring of 1981 the family went to live in Kendall in Cumbria, and *584 at the same time the plaintiff was sent to the National Star Centre in Cheltenham, which is a college of advanced education for disabled persons. There she studied Drama, Art, English and Mathematics (the latter ‘reluctantly’), and she was still there at the time of the trial. It was anticipated that she would require a further year there after the trial.
Although she has improved dramatically, well beyond what might reasonably have been expected in the earlier years, she nevertheless has severe and permanent intellectual and emotional impairment, and is also physically handicapped. She has intermittent tremors, particularly of the right hand, and now uses her left hand for writing, feeding herself, washing, dressing and the like. Her balance is unsteady and she has a tendency to fall and, as she herself puts it, she feels ‘shaky’. As a result of the manner in which it was necessary to treat the fracture of the lower end of the femur, although it was a simple fracture, she is unable to straighten her left knee fully — the orthopaedic evidence was that this would be greatly helped by an operation to straighten the leg, which would improve her balance, but this operation has not yet been carried out largely because of her emotional condition. She has become frustrated, is depressed at times, she is irritable, unpredictable in her bahaviour, and is given to outbursts of temper. She has made five suicide attempts — her psychiatrist described these as largely ‘gestures’, but said that there is a potential risk with any depressed person. Although she has in fact done such simple cooking as making tea and boiling an egg, she should not do any cooking because of the tremors and of the risks involved in handling boiling water, hot dishes and the like. While her physical condition will not improve, her emotional and psychological problems will improve if she can achieve what is to her an acceptable level of independence.
All the doctors who gave evidence and who submitted reports agree that there is no question of the plaintiff obtaining remunerative employment. She is a very intelligent girl, and reads and writes a great deal, and she had taken up painting some time before the trial. She writes poetry prolifically, and many of her poems were produced in the High Court and in this Court. In his judgment, the learned trial judge said that these poems ‘clearly indicate the nature of her problems, her approach to them, and at the same time clearly establish in my mind at least that the future of this young lady is not necessarily as bleak as might be imagined … These [poems] clearly indicate an insight into her condition but also an expression of her hope in the future’. She is very keen on drama and on the theatre generally, and she would like to attend a drama college when she leaves the National Star Centre. Her burning desire is to work in the theatre, ‘even if it is only doing the props’ as she herself puts it, and it is irrelevant whether she is involved with an amateur or professional body.
On the question as to what the future holds for her when she leaves the National Star Centre, whilst ordinarily the most desirable thing for her would be that she should live with her mother and family, it is common case that, at least for the present and in the short term, that is neither desirable nor possible. At the present time she does not get on with her mother and seems to *585 have a certain antagonism towards her. In addition, her mother is in employment locally in Cumbria and, understandably, considers that, apart from holiday periods, while Philippa’s attitude to her remains as it is at present, it would be unfair to the other three children to have her at home even with outside help. The favoured solution seems to be that she needs sheltered accommodation with a family or a small caring community, where her physical needs would be taken care of and where she would have suitable intellectual stimuli available. She resents being confined, and tries to assert her independence.
The learned trial judge heard the case without a jury by the consent of the parties. Liability was admitted and the only issue was that of damages. After a hearing lasting three days, he assessed damages at £683,000, made up as follows:
Care and attention for the rest of the plaintiff’s life
£350,000
Future loss of earnings
£125,000
Agreed special damages
£ 48,000
General damages for pain and suffering
£160,000
Total
£683,000
Since the trial the plaintiff has been placed in the control of the Court of Protection in London, which is the equivalent of being in wardship here. Although she could manage day to day sums for ordinary living, she could not manage a very large sum of money.
The defendant has appealed against each of the sums of £350,000, £125,000, and £160,000 respectively and also against the aggregate sum of £683,000 awarded to the plaintiff, on the grounds that each of the individual sums was excessive, that the actuarial multipliers considered by the learned trial judge were too high and inappropriate to the circumstances of the case, and that the aggregate sum awarded was also excessive.
There is one feature of this case to which, in fairness to the learned trial judge, attention should be directed at the outset. The trial took place in February 1983 and judgment was delivered on 10 February. At that time the cases of Reddy v Bates [1984] ILRM 197 and Cooke v Walsh [1984] ILRM 208 were under appeal to this Court, but neither appeal had then been heard. The learned trial judge in the instant case had also been the trial judge in Cooke v Walsh. In the instant case he considered (in my view correctly) that, although Cooke v Walsh was under appeal, until and unless he was reversed on appeal he should nevertheless follow the rulings made by him in that case, and he did so. The judgment of this Court in Reddy v Bates was delivered on 29 July 1983, i.e. prior to the hearing of this appeal. The argument in Cooke v Walsh had been heard by a full court prior to the hearing of the argument in the instant case and judgment was reserved. The parties in this case were informed by the court that judgment would not be delivered until after the delivery of the judgment in Cooke v Walsh. That judgment was delivered on 16 March 1984. At that time, the hearing of the appeal in the case of Sinnott v Quinnsworth, also *586 before a full court, was imminent, and judgment in that case was delivered by the court on 29 June 1984. The instant case was therefore decided by the learned trial judge before the delivery of the judgments in this Court in Reddy v Bates, Cooke v Walsh, and Sinnott v Quinnsworth [1984] ILRM 523.
As I understood the argument on behalf of the defendant, Mr McKenna SC submitted that the items of £350,000 and £125,000 were excessive, the latter by a more significant amount; and Mr Hickey SC, who followed, challenged each of the three disputed items as being excessive, and the aggregate amount awarded as also being excessive.
In respect of the £350,000 for care and attention, although the learned trial judge said that this was in the main an intuitive figure, he was clearly influenced by the actuarial evidence in arriving at it. He took the figure of £12,000 per annum as being a reasonable figure for her care and, using a multiplier of 29.59, this gave a sum of £355,080, which he found to be confirmatory of his intuitive figure. The actuary arrived at his multiplier in this way. There was evidence that 11 per cent was at the time of the trial readily available in England on investments. The then current rate of inflation in the United Kingdom was 5.4 per cent. Assuming a real rate of return at 5 per cent (which was accepted by the trial judge) the income which the plaintiff would have at the termination of the case would be likely to mean that, at the current rates of income tax and on the basis of the current bands, she would be likely to be paying tax on her income at an average rate of 50 per cent. This was by reason of the fact that tax relief is not available in the United Kingdom in respect of care costs and that ‘this makes an enormous difference’. In the result, he said that the real yield would be 2½ per cent and not 5 per cent, and the actuarial multiplier for a twenty one year old girl for life would be 29.59. The learned trial judge stated that this case was full of imponderables, with which I would certainly agree, and the case is, in my view, a good example of the danger of applying precise mathematical calculations to the uncertainties of the future without any discounting. The calculations of the actuary, which are no doubt mathematically precise, assume, inter alia, that, for the lifetime of the plaintiff (something over 50 years) the current rates of taxation will be maintained for the entire period, that the bands of taxation will remain unaltered, that the return on capital will continue at present levels, and that although tax relief may now be claimed for the cost of care and medical expenses in some of the member States of the E.E.C. (including this country) there will not at any relevant time be any alteration in the position in the United Kingdom.
The plaintiff’s damages will be under the control of the Court of Protection. Mr Lynch, an official from that office, gave evidence at the trial. The effect of his evidence is that her funds will be managed by a receiver, who, in large cases (which, he said, in England are those of £50,000 and upwards!), is advised by experts such as investment managers and stockbrokers. The portfolio will include both equities, with the object of obtaining capital appreciation to counteract inflation, and gilt-edged securities to secure the highest possible income. A review takes place every month in respect of a portfolio as large as *587 the plaintiff’s is likely to be. Her damages will therefore be managed and invested with the benefit of the best obtainable professional advice.
I understood that in the more serious claims for damages in the High Court the practice of at least some actuaries is to allow for an average rate of tax of 35% in calculating the multiplier proposed by them, and that this is done with the object of counteracting in some measure assumptions of the kind that inevitably arise in these cases when mathematical precision is being applied to the uncertainties of the future. If that is the practice, it was not proposed or suggested in this case. Whilst in respect of a rate of 5% the actuarial multiplier is 18.72, it is 29.59 in respect of a rate of 2½%. Where therefore, within that range, such a large sum as £12,000 is being multiplied, the multiplier used can make a considerable difference — a difference which can be as high as £125,000.
Having regard to the assumptions on which the multiplier used in this case is based, that mutiplier is in my view too high, and the damages of £350,000 awarded under this heading are therefore excessive.
With regard to the £125,000 for loss of earnings the learned trial judge considered that a reasonable income for the plaintiff at age 22, had she been uninjured, would be £4,000 per annum after deduction of income tax, social insurance and the usual deductions made from gross salaries. For the plaintiff, Mr Liston SC considered that this net sum was a low figure, and said that the learned trial judge did not analyse it but took it as a moderate figure and capitalised it. At the conclusion of his submissions he suggested that if the court was in any doubt about the £4,000 per annum and how the trial judge arrived at it, the court could ask him (the learned trial judge) how he had arrived at that sum. This suggestion was confined solely to the £4,000 per annum in respect of the loss of earnings — he made no similar suggestion in respect of the £12,000 per annum used by the learned trial judge under the first disputed head of damages. In my view the sum of £4,000 per annum net accepted by the learned trial judge was a reasonable net income for a girl of 22 and the learned trial judge was entitled to act on that basis. I do not think therefore that any necessity arises to refer to the learned trial judge the question as to how he arrived at that figure.
The multiplier used in respect of this loss was 32, which was calculated by the actuary by taking into consideration the same factors as I have referred to earlier. There was however no discounting and the sum worked out at £128,000, which was rounded off at £125,000. In my opinion, in line with the decisions in Reddy v Bates and Cooke v Walsh and the factors which are set out in those cases as being some of those which should be considered by a judge or jury, there should be a discount in the multiplier used and in my opinion this sum is accordingly also excessive.
In relation to both of these two heads of damages, the defendant’s counsel made a further submission i.e. that there is overlapping between them in respect of the cost of maintenance of the plaintiff. The argument was put in this way. If the plaintiff is to be looked after by her mother, or by another family, or by a caring community, the £12,000 allowed for her care would be more than adequate for her needs, and that would include her maintenance. If she *588 had been uninjured, she would have to maintain herself out of her income, the cost of which would be at least half the approximate sum of £80 per week assessed by the trial judge as loss of earnings, and that it would not therefore be correct to capitalise the entire of that sum. While living with her mother is not feasible at present, her mother’s circumstances will, it was said, change materially within seven or eight years from the time of the trial, as her three younger children will then have been provided for, and that the reality is that there is a much greater prospect of the plaintiff then living with her mother, who could obtain outside help in looking after her. It seems to me that there is a good deal of force in this argument and that there is in fact some overlapping of the cost of her maintenance in the two sums awarded.
In respect of general damages, the sum of £160,000 was awarded to the plaintiff. Having regard to what was stated in respect of general damages in the three cases already cited, and which it is not necessary to repeat here, this sum is in my opinion also excessive, notwithstanding the serious nature of the injuries suffered by the plaintiff.
When the total or global sum of £683,000 is considered, the conclusion that the damages are excessive is confirmed. Omitting the £48,000 special damages (which included those to the end of the year after the trial) the damages awarded would leave the sum of £635,000 available for investment. At 11 per cent this would produce a gross income of just under £70,000 per annum. Even allowing for an average rate of tax at 50 per cent, as proposed by the actuary, this would still leave the sum of £35,000 per annum. If these amounts be converted to sterling at the date of the trial, which the trial judge refused to do, these gross and net figures would respectively be in excess of £62,000 and £31,000 per annum.
The three items in dispute, and the global or total figure for damages, were therefore in my opinion excessive. While the plaintiff’s injuries are very serious, they cannot be regarded as comparable with, for example, a case of quadriplegia. Although each case must be considered on its own facts, the level of damages awarded in somewhat similar cases, and in much more serious cases than the particular case under consideration, should be kept in mind.
In respect of the award of £350,000, having regard to all the circumstances and to the matters to which I have referred, I would reduce this sum to £290,000. In respect of the loss of earnings I would reduce the sum of £125,000 to £85,000; the reduction of £40,000 is in my view quite moderate, as it includes the absence of discounting and some overlapping for her maintenance. In respect of general damages, I would reduce the sum of £160,000 to £100,000.
There would therefore be a reduction of £160,000 in the total damages awarded, and I would accordingly substitute the sum of £523,000 for the total sum awarded and allow the appeal.
As the sum of £300,000 was paid on account immediately after the trial, the balance due is the sum of £223,000, and that sum, under the order of the High Court carries interest at 11 per cent per annum since the date of the judgment of the High Court.
*589
McCARTHY J:
Philippa was born in Bristol on 10 May 1963, her father, who died when she was nine and a half, being a medical doctor who specialised in bacteriology and tropical diseases. Her mother, through whom she sues in this action, is a zoologist. Philippa has a younger sister and twin brothers. She was of above average intelligence, being of an intelligence quotient in the upper 3 per cent of the community. It must not be overlooked that in the United Kingdom this would represent something of the order of 1.8 million people and in the Republic of Ireland some 100,000. Despite the loss of her father, Philippa’s development was normal, she was a happy child who did well at school — she won two scholarships at the age of 11 and continued at school in North Wales until her mother decided to return to Ireland, where Mrs Griffiths was born, for understandable personal reasons. Philippa left the boarding school and went to school in Cahir, near where she then lived.
On 12 October 1977, in a motor accident, Philippa sustained a variety of physical injuries, unnecessary to detail, of which the most serious was extensive brain damage, as a result of which she spent lengthy periods in hospital, including a psychiatric hospital and the Rehabilitation Centre at Rochestown Avenue in Dun Laoghaire. Eventually, in November 1978, she went to Ysgol Gogart where she remained until 1981 when she went to the National Star Centre at Ullenwood Manor, Cheltenham in England and was still there at the time of trial.
Liability has never been in issue and, by consent of the parties, the assessment of damages was made by Hamilton J following evidence taken on 8, 9 and 10 February 1983. The transcript and the accompanying documents, including all available medical reports resulting from examinations on behalf of both parties, demonstrate a most careful and detailed enquiry into Philippa’s childhood, the accident and consequential injuries, and her unhappy post-accident history. It is no perfunctory expression of commendation when I say that the conduct of this trial reflects great credit on all those concerned with its preparation and the hearing itself. From any point of view, it was a most serious case and I take the opportunity of publicly expressing my appreciation of the contribution to justice made by counsel, solicitors and witnesses to this trial. The hearing was before Hamilton J who, at the commencement of his judgment, expressed his appreciation of the confidence placed on him by counsel on both sides in agreeing to his trying ‘this very serious case’ without a jury. Counsel’s confidence was not misplaced. Indeed, the line of argument advanced by counsel for the appellant, to which I shall refer, of itself, reflects this fact.
Philippa’s history since the accident has been stormy from time to time — quite apart from the direct physical results of the accident — her propensity to fall, the unsteadiness in her hands, with difficulty in dealing with ordinary domestic problems and the overall physical disabilities which result in her being unemployable save in the most sheltered form of employment, she has also become ‘disinhibited’ which, without going into unnecessary detail, may be construed as being wayward, difficult, unpredictable, unwilling to conform, intemperate in her speech and so on. She does not get on with her mother with *590 whom she refuses to live and, as we were informed at the hearing of the appeal, has, since the trial, been in an institution where it has cost some £30,000 to maintain her for one year. There is no prospect of any improvement in her condition and, essentially, it is impossible to say or to forecast with any confidence how or where she will live, who will look after her, how she will be maintained, whether or not she will be able to earn anything — in short, what is to become of her. She remains a talented girl — I have read samples of her poetry which ranges from little more than doggerel to touching and, at times, alarming and imaginative fantasy. It was clearly established that she had made a number of attempts at suicide and the possibility is significantly present that she may do so again. That very question, indeed, raises a very difficult problem in the assessment of damages which, happily, we are not called upon to decide. The learned judge assessed damages under the following agreed heads:
1. Care and attention for the rest of the plaintiff’s life — £350,000.
2. Future loss of earnings — £125,000.
3. Special damages (agreed) — £48,000.
4. General damages for pain and suffering — £160,000.
This appeal is brought in respect of the assessment made on each of the items which was not agreed. Mr McKenna SC, counsel for the appellant, presented a concise and, in context, a telling argument, as I understand it, to the following effect:
1. There is no serious disagreement in the medical evidence — indeed all of the reports had been exchanged and the evidence was given with candour and completeness.
2. The essential question in respect of Phillipa is — what is the best thing to be done and what does it cost.
3. There is no question of treating Philippa as a permanent inmate of an institution — what she requires is a caring home in a small community, augmented by intelligent companionship.
4. The judge’s approach to the assessment under the two headings to which a multiplier is applied cannot, of itself, be criticised. It may be that the calculation for future loss of earnings should be reduced by some allowance for maintenance cost.
5. In its isolated calculation, the damages for pain and suffering are in no way excessive. But,
6. Looked at globally, and the court should look at it globally, the figure of £683,000 bears no true relationship to the injuries sustained. Mr McKenna SC summarised the case as follows: ‘Nobody had faced up to the decision as to what to do. Each figure can be justified of itself — [the] total is too much’.
At Question 311 Mr McKenna SC, in questioning Philippa’s mother ‘so that at a practical level His Lordship may take it that you do not foresee a situation where you could cope with her at home even with help?
Answer: Not unless her attitudes change’.
Within the foreseeable future there is little prospect of Philippa living with *591 her mother and three siblings and, as the years go by, it is unlikely that she will ever return to her own home.
I did not understand Mr McKenna SC to submit that any particular item of assessment was, of itself, excessive but that the aggregate or global sum was wholly out of proportion to the injuries sustained. At first sight, having regard to the reduced awards of damages in cases lately before this Court, to which Griffin J has referred in his judgment, it would seem that there could not be a reasonable proportion between the global figure and the injuries sustained. I do not understand the majority judgment in Reddy v Bates approved in Cooke v Walsh and Sinnott v Quinnsworth to have laid it down that one first looks at the global figure. One must, I think first look at the individual items. Before doing so, I refer to the suggestion made by Mr Liston SC at the commencement of his argument — to ‘ask the judge how he calculated the £4,000 and £12,000 per annum’, a suggestion adopted, in reply, by Mr McKenna SC.
The figure of £12,000 per annum is amply supported by the evidence of Mr Hellier whose admirably detailed report was, by agreement, admitted in evidence and upon which he was examined. Mr Hellier’s total figure, as amended, was £13,306 per annum, expressed in sterling (Question 1019). The learned trial judge took a sum of £12,000 and calculated the capital value by applying a multiplier of 29.59 per £100 per annum. I have no note of any argument questioning the accuracy of the multiplier and I think it of significance that Mr Seagrave Daly, the actuary who provided the multiplier (Question 1295), allowing income tax at 50 per cent, was not the subject of any cross-examination whatever; there is intrinsic evidence that the defendant’s advisors had been provided with an actuarial report and, presumably, the evidence it contained corresponded to that of Mr Seagrave Daly. For that reason alone I do not consider that I should embark upon a critical analysis of Mr Seagrave Daly’s evidence. I might add that my notes of the argument presented by Mr Liston SC and Mr Gleeson SC on behalf of the plaintiff, does not disclose any like argument on this issue. No attempt was made to estimate the ‘enormous difference’ propounded by Mr Seagrave Daly and cited by Griffin J: there was no cross-examination at all. As to income tax, it is proper that it be taken into account and there is no means of assessment other than to take current tax rates. On the other hand, there is no evidence whatever to suggest that there will be any alteration in the United Kingdom in the right to set off charges such as are covered by this item. Whilst the sum seems large, I cannot estimate any other sum or point to any means whereby it might be done. I cannot accept that there may be a reduction without explaining the basis of it — such would be entirely arbitrary. If the assessment made by the learned trial judge was based upon figures expressed in sterling, then for the purpose of assessment here it should be converted into Irish pounds — in respect of which evidence was given that the exchange rate at the time was one Irish pound to 88 pence sterling; it is now one Irish pound to approximately 82 pence sterling, which would require an adjustment of over 20 per cent. In his judgment (p. 160) the learned trial judge said: ‘I think the justice of this case will be met if in respect of the sums that I have awarded in respect of future care and future loss of earnings be not converted to sterling, that would *592 represent an allowance in this country of approximately 12 per cent which is within the parameters laid down by the English Courts as far as I can understand them from reading the cases’. With respect, I think the learned judge intended to convey his refusal to covert from sterling which, according to the evidence, would indeed represent an allowance of approximately 12 per cent. Little purpose would be served by converting to sterling — a foreign currency, which might be an appropriate order in a case where a plaintiff sued on a contract expressed in such currency.
Loss of earnings — £125,000
I am, I believe, supported in this understanding of the judge’s view when I turn to an examination of his assessment of the future net income for Philippa. This he determined ‘after payment of tax’ at £4,000 per annum to which he applied a multiplier of £3,200 per £100 per annum. Applying the template of the observations of Griffin J in Reddy v Bates, nonetheless, I cannot but feel that this was the very minimum sum that could be awarded in a case of unimpaired life expectancy. Whilst it does not allow for the vagaries and vicissitudes of employed life, no more does it allow for the fact that Philippa is a daughter of a professional family and at least was entitled to the opportunity of earning a high income. The estimate is based upon the very minimum scale. As I have said, if I am correct in my assumption about the calculation being made in sterling, the assessment is some 12 to 20 per cent under calculated.
I am quite satisfied from the examination of the transcript to which Mr Gleeson directed attention that the judge’s assessment for care and attention for the rest of the plaintiff’s life did not contain any element of food and clothing, holidays, buying books, paying for occasional trips and, in Philippa’s case, dramatic festivals and the like, and that no discount has been established for the item of loss of earnings. As in the trial of Reddy v Bates the matters to which Griffin J refers under the heading of loss of earnings were not seriously canvassed at the trial of this action and, as in Reddy v Bates, I would not allow any reduction under that heading.
General damages
I share the view that, having regard to the observations made by this Court in Cooke v Walsh and Sinnott v Quinnsworth, the sum of £160,000 is excessively greater than the sum appropriate and I would reduce the same to £100,000. This is in no way a criticism of the assessment made by the learned trial judge.
In sum, I do not doubt that, to the outsider, and, perhaps particularly to the newspaper reader who merely sees the total amount of the award in a case of this kind, the amount of damages, even reduced as I have suggested by the sum of £60,000, must seem extravagantly high; examination of the transcript and the accompanying documents, together with the consideration of the arguments advanced on both sides, has failed to satisfy me that the careful assessment made by a judge of great experience was, in principle, wrong in any component part or in its total. I defer, however, to the conclusion that the general damages are excessive.
*593
Having regard to what I have said, and, indeed, in deference to the learned trial judge, it seems to me that this matter should be referred back to the learned trial judge, as counsel for both parties have requested, so that the exact basis of the assessment under the headings of care and attention and of loss of earnings can be made known to this Court, whose function it is to review, not, primarily, to assess.
John McKevitt v Ireland and the Attorney General
1985 No. 119
Supreme Court
18 April 1986
[1987] I.L.R.M. 541
(Finlay CJ, Walsh, Henchy, Griffin and McCarthy JJ)
FINLAY CJ
(Walsh and McCarthy JJ concurring) delivered his judgment on 18 April 1986 saying: This is an appeal by the defendants against a judgment and order of the High Court, dated 1 May 1985, which, pursuant to the verdict of a jury, awarded to the plaintiff £161,500 as damages for negligence by the defendants’ servants or agents.
The action arose out of the following facts.
The plaintiff was, on 6 July 1980, found by members of the Garda Siochana drunk and incapable at Andrew Street in the City of Dublin at about 3 p.m. He was arrested and brought to Pearse Street Garda Station where he was searched by members of the Garda Siochana for the admitted purpose of finding out whether he had anything in his possession with which, having regard to his drunken condition, he might damage himself or property in the cell into which he was to be put. A dispute exists as to what exactly was taken off him as a result of that search, but it seems clear *543 that at least his belt and a box of matches were taken from him. He was then put in a cell and locked on his own, the cell containing a door in which was a spy-hole only. The cell also contained, it was agreed, a mattress and the plaintiff alleges that in addition it contained a pillow. At a time which was estimated by the plaintiff to be some quarter of an hour or twenty minutes later, and by the defendants’ witnesses was fixed at practically two hours later, upon hearing shouting a member of the Garda Siochana went down to the cell and discovered that it was on fire. By the time the door had been opened and the plaintiff taken out of it, he had received extensive burning.
The plaintiff’s account of how the fire started was that he alleged that notwithstanding what he conceded was a thorough search of his person carried out before he was put into the cell, he was in fact left with two boxes of matches in one of his trouser pockets, that he discovered those after a relatively short time and being particularly anxious to get a cigarette, (his packet having been taken from him in the course of the search) he threatened by shouting to the guards that he would set the cell on fire unless they brought him a cigarette, that he then lit a pillow in the centre of the cell and that the fire spread rapidly all over the floor and up the walls, and this was the cause of the fire.
The defendants’ witnesses gave evidence that having regard to the nature of the search of the plaintiff which was carried out before he was put in the cell, it would have been physically impossible for any box of matches, let alone for two boxes of matches, to be missed in that search. Furthermore, they denied that there was any threat or shouting by the plaintiff of his intention to burn the cell, and stated that after two hours during which he appeared to be settling down in the cell and during which period he was inspected at regular intervals every quarter of an hour, suddenly he was heard to be shouting and the cell was then found to be on fire and he was released as soon as was possible.
The grounds of appeal
The defendants’ appeal was both against the findings of liability and against the assessment of damages.
With regard to liability the defendants firstly submitted that the learned trial judge erred in law in refusing their application for a direction at the conclusion of the evidence for the plaintiff; that there was no evidence of negligence against the defendants upon which a reasonable jury could act and that the finding of negligence against the defendants was perverse.
Without prejudice to that submission the defendants further submitted that if it was open to the jury to find the defendants guilty of negligence, that the apportionment of fault made by them, imposing 85 per cent of the fault upon the defendants and 15 per cent of the fault only upon the plaintiff, was perverse and should be set aside as being unreasonable and not warranted by the evidence.
*544
Appeal against damages
The verdict of the jury with regard to damages was as follows:
Loss of earnings to date
£42,000
Loss of earnings in the future
£80,000
Pain and suffering to date
£39,000
Pain and suffering in the future
£29,000
The defendants appealed against each of these separate findings upon the following grounds:
(a) They submitted that the figure of £42,000 loss of earnings to date was unsupported by the evidence both in regard to the period in respect of which it obviously was assessed and to the amount per month or year during that period.
(b) With regard to the loss of earnings in the future they submitted that on the evidence no question as to loss of earnings in the future should have been left to the jury and that there was no evidence to support any finding of loss of earnings in the future consequent upon the incident complained of.
(c) and (d) With regard to pain and suffering to date and in the future the defendants submitted that the amounts were excessive to such an extent that they sould be set aside by this Court.
Evidence of negligence
The defendants concede that having arrested the plaintiff in a drunken and incapable condition they owed him a duty when putting him under lock and key on his own in a cell to take reasonable care that he did not have in his possession objects with which, either by accident or design, he might injure himself. In fact witnesses for the defence gave evidence that the regulations of the Garda Siochana inter alia required or suggested that persons who are in a drunken condition should be searched and such objects should be taken from them. The defendants submit that having regard to the clear agreement by the plaintiff both in his direct evidence and in cross-examination that before being put into the cell he was thoroughly searched; having regard to the evidence of Guard Grogan, called by the plaintiff as part of his case, that the plaintiff was thoroughly searched; there was no evidence of any breach of this standard of care which was fit to go to the jury at the conclusion of the plaintiff’s case. They argue that the plaintiff’s suggestion that after being thoroughly searched be found two boxes of matches in a trouser pocket which he used to set fire to objects in the cell, was not evidence which a jury could reasonably accept as being true, firstly, because it was inconsistent with the thorough search of which both the plaintiff and the witness called by him gave evidence, and secondly, because the details of the commencement of the fire given by the plaintiff in evidence and his concession as to the extent of his drunkenness at that time made his evidence not worthy of belief. In particular, they *545 relied on the fact that the plaintiff gave evidence that in threatening to set the cell on fire and calling for the attention of the guards that he put his head through the bars in the door and shouted down the corridor to members of the Garda Siochana. The uncontradicted evidence, supported by photographs, was that the cell in which the plaintiff was kept and which went on fire had a sheeted metal door with a spyhole in the centre of it and no other apperture of any description.
The plaintiff on this issue contends, firstly, that his evidence that he had been left with two boxes of matches on his person was evidence which the jury could accept, and that it must be left to them, and that an issue then arose which must be decided by the jury as between the plaintiff and the defendants’ witnesses. Secondly, it was contended, in the alternative, that evidence of the fact of the fire was evidence on which the jury must conclude either that the plaintiff had, notwithstanding a search, been left in possession of matches, or at least a match, or that a match or matches had negligently been left in the cell into which he was placed, and that in either event, having regard to the extent of his drunkenness, the defendants could be guilty of negligence in permitting that situation. Lastly, it was contended on behalf of the plaintiff that his evidence that before actually starting the fire he shouted to the guards a warning that he intended so to do in order to try and extract from them a cigarette and that they did not immediately attend at his cell, could be taken by the jury to be evidence of a separate act of negligence on the part of the defendants’ servants or agents which would justify a finding against the defendants.
Although the allegations of negligence contained in the pleadings filed on behalf of the plaintiff could be said to cover a failure to carry out a proper search, neither a specific allegation of negligent searching nor a specific allegation of failure to find two boxes of matches was made in the pleadings. No case was made in the pleadings of a failure to heed a warning given shortly before the commencement of the fire.
Unfortunately, the learned trial judge left only one general question with regard to the defendants’ negligence to the jury and, in particular, left no specific question concerning the issue as to whether, notwithstanding the search, the plaintiff was left in possession of one or more boxes of matches. No question was left with regard to the failure to heed the warning and no reference was made to that evidence in the charge of the learned trial judge. I am satisfied that as a matter of law if the defendants, having regard to the drunken condition of the plaintiff, had carried out a search of his person for the specific purpose of removing from him something with which he might injure himself and had failed to detect in that search one or more boxes of matches, that that could be an act of negligence contributing to the injuries subsequently suffered by the plaintiff.
I am not satisfied that if a jury came to the conclusion that, notwithstanding a search, the plaintiff still had in some part of his clothing one or two single matches not contained in a box or packet, that would necessarily be evidence of negligence against the defendants.
*546
If a jury were satisfied that the plaintiff made known to one or other of the defendants’ servants his intention to start a fire in his cell and if they ignored that warning, that could be an act of negligence contributing to the injuries suffered by the plaintiff.
For a trial of the somewhat unusual issues arising in this case to be satisfactory and clear, I have no doubt that a specific question on whether the search failed to reveal one or more boxes of matches in the possession of the plaintiff and subject to any objection with regard to the pleadings, a specific question on whether the defendants’ servants heard the warning given by the plaintiff and ignored it would have to be left to the jury and answered by them.
If that were done, then I am satisfied that notwithstanding the many inconsistencies in the evidence of the plaintiff and the unsatisfactory nature of many of the matters described by him that it would be open to a jury to accept the plaintiff’s version on either of these two issues and to reach a conclusion that the defendants were guilty of negligence.
I would, therefore, reject the defendants’ appeal in so far as it seeks a finding that there was no evidence of negligence and that the order of this Court should be to dismiss the plaintiff’s claim, but would instead direct a re-trial on the issue of liability on the basis that the trial already had was unsatisfactory.
Other grounds of appeal
Having regard to the view which I have reached concerning the necessity for a new trial on the issue of liability, it seems desirable to express a view both on the question of the proportions of fault and on the question of damages.
Proportion of fault
I am satisfied that on the evidence a finding of only 15 per cent proportion of fault against the plaintiff was unreasonable to an extent that it be set aside by this Court. The finding by the jury that the plaintiff was guilty of contributory negligence implies a finding that he had by the time of the commencement of the fire sufficiently recovered from his drunken condition to owe a duty to take reasonable care for his own safety, which he failed to discharge. Having regard to that finding, I have no doubt that unless a jury were satisfied and answered specific questions to indicate a finding that the defendants were guilty of negligence both in their failure properly to search and in their failure to heed a warning which they heard of the commencement of the fire, that any apportionment of fault which did not place upon the plaintiff a much greater responsibility in fault for this incident that it did on the defendants, would be perverse. Even if the defendants were found guilty of negligence on both the headings which I have outlined, once the plaintiff was found guilty of contributory negligence, having regard to the fact the he started a fire, in the small enclosed space in which he was locked, I do not consider that any finding of a *547 proportion of fault against the defendants greater than 50 per cent would be justified.
Loss of earnings to date
The evidence with regard to earnings was that prior to this incident the plaintiff had been self-employed repairing motor cars. He gave evidence that the weekly amount he earned averaged at £100. He had, some 15 months before this incident, been diagnosed to suffer from epilepsy, and the medical evidence adduced on his behalf indicated that properly speaking he should not drive motor cars nor work in proximity to moving machinery. It also indicated that he would have considerable difficulty in obtaining employment as a motor mechanic if he disclosed, as he probably should, his condition of epilepsy. The plaintiff did not give any evidence of his intention to seek employment nor was any evidence of the availability of employment to him during the period between this incident and the trial given.
The amount assessed by the jury in respect of loss of earnings to date can only be explained on the evidence with regard to the rate of the plaintiff’s earnings in his self employment on the basis that the jury assumed that the plaintiff might have earned as an employee a greater figure than the evidence supported as being his possible earnings in self-employment. Whilst the medical evidence was unsatisfactory with regard to any link between an increase in the plaintiff’s frequency of epileptic attacks and the incidents of July 1980, I take the view that a jury was entitled to award to the plaintiff loss of earnings from the date of the incident up to the trial, but not at the rate at which they did. This amount would, therefore have to be set aside.
Loss of earnings in the future
During the trial the learned trial judge ruled the evidence of an actuary tendered by the plaintiff to be inadmissible on the grounds that whilst he held that on balance it was possible for the jury to conclude that the plaintiff would suffer some loss of earnings in the future, the evidence was not sufficiently precise as to the likely period over which that loss would be suffered to allow the evidence of an actuary to be appropriate. I have no doubt that that ruling was correct and it has not been appealed against here. I also have no doubt that of necessity, having regard to the evidence, the ruling should have been, not only that the evidence of an actuary was inadmissible, but that there was not room for the jury, on the evidence, without mere speculation, to assess any figure for loss of earnings in the future. If there was no evidence upon which they could reach a probable conclusion as to the likely period during which earnings would be lost, then a question on loss of earnings was inappropriate and not supported by the evidence.
It may be that some element of risk of loss of employment or earning capacity would be an appropriate factor in the assessment of general damages in the future, but a separate figure for loss of earnings in the future was *548 not warranted by the evidence. I am, therefore, satisfied that the figure awarded by the jury under that heading should be set aside.
General damages to date
Having regard to the nature of the incident itself in which the plaintiff was involved, involving a rapidly spreading fire in an enclosed space in which he was locked; having regard to the immediate consequence and pain involved in the burns and the treatment necessary for them, I am satisfied that evidence having been given from which a jury could conclude that over and above these injuries the plaintiff’s condition of epilepsy was seriously and in a major manner aggravated for the period since July of 1980 by the psychological trauma of this incident the figure of £39,000 for pain and suffering to date, to cover a period of almost five years, whilst on the generous side, is not so excessive as to require intervention by this Court on appeal.
General damages in the future
I am satisfied that on the evidence given at the hearing, it was not open to the jury to conclude as a matter of probability that there would be any aggravation or increase of the condition of epilepsy in the future attributable to this incident. Medical evidence supported the view that the major physical problems arising from the burning of the hands had subsided and would not be of major significance in the future. The plaintiff is undoubtedly badly scarred but bearing in mind all these considerations I take the view that the sum of £29,000 for pain and suffering in the future was excessive to such an extent that it should be set aside.
I would accordingly allow this appeal and direct a new trial of this action on all issues.
GRIFFIN J
(Henchy J concurring): In this case there is no dispute between the parties as to the duty owed by the Gardai to persons in their custody, as the plaintiff was on the day on which he suffered the injuries giving rise to these proceedings. That duty in the context of this case is to take all reasonable steps or measures to ensure that the plaintiff does not injure himself or others either accidentally or deliberately. As the plaintiff was a drunken man when taken into custody the particular steps to be taken in his case were to remove from him anything with which he might cause injury to himself, the obvious things being sharp instruments or matches. With this object in view, it is therefore essential that a drunken man should be carefully searched before being placed in a cell. As pleaded, the relevant particulars of negligence alleged against the defendants were that they:
(4) permitted a source of combustion, including matches, to be in the cell and available to the plaintiff and
(8) failed to advert to the condition of the plaintiff, while in custody, or to take such precautions as his condition required.
*549
In reply to the request for particulars as to how the cell was caused or permitted to go on fire, the defendants alleged that ‘the said fire was started by the plaintiff who set fire to the mattress in the cell with matches’ (emphasis added).
These particulars were furnished on 3 August 1982 more than two years after the fire, and at a time when the plaintiff’s case ought to have been well-known to himself and to his advisers.
In effect, the allegation made against the defendants at the trial was that the search of the plaintiff was inadequate in consequence of which, it was alleged, the plaintiff had been left with two boxes of matches in his left trouser pocket when he was put in the cell. I accept that if the plaintiff had been left with two boxes of matches there would have been a breach of the duty of care owed to him by the defendants. The evidence relating to the search of the plaintiff at Pearse Street Garda Station shortly before 3 p.m. on the day in question is therefore of crucial importance in this case. Three persons were present at that search — the plaintiff, Garda Grogan, the observer, and Garda Keenan, the driver of the patrol car in which the plaintiff was brought to the Garda Station, and all three gave evidence at the trial.
The first of these witnesses called was the plaintiff who was offered as a witness who was in a position to recollect and who purported to give evidence of the search made by Garda Grogan. His recollection was that money, cigarettes and matches were taken from him, but when asked about cigarettes (Q. 250/251) he said that he could not disagree that he had no cigarettes 2on him. At questions 258/260, he accepted that everything was turned out of his pockets, and the the search made by the Garda was ‘a thorough search, I will agree’. When asked (Q. 275) if he was saying that the Garda did not turn out the linings of his trousers pockets, he said: ‘No, I have a recollection of the linings being turned out and left with absolutely nothing on myself’.
Garda Grogan was called as a witness for the plaintiff. He said that he intended placing the plaintiff in the cell and that all prisoners are searched for any items with which they could injure themselves or others (Q. 378). At questions 421 to 435 he described the search of the plaintiff before putting him in the cell. He said that Garda Keenan held the plaintiff by the arm while he, Garda Grogan, searched him. All his pockets were emptied and pulled inside out — all his trousers pockets and all the pockets in his jacket, including the inside pockets. The linings were pulled out, and he also took the plaintiff’s trouser belt off him. The belt and a box of matches found on the plaintiff were retained by him. He took these from him because they were items with which he could cause harm to himself. Those items were placed by him in a sealed envelope and handed to the Sergeant in charge. All other items that he had were removed from his pockets — a bank book, his bunch of keys, and cash, but these were returned to him as they were no danger to him. He had no cigarettes on him. He placed the plaintiff in the cell which has a metal or steel door. In this door there was *550 a small peep-hole at eye level. The cell and the door did not have any bars. Having regard to the manner in which the plaintiff’s pockets were turned inside out, he said that there was no way in which he could miss something like two boxes of matches.
Garda Keenan, the driver of the patrol car was called on behalf of the defendants. He stood behind the plaintiff with his hands on the plaintiff’s upper arms while Garda Grogan turned out his pockets and removed his belt. In his pockets, the plaintiff had a bank book, a large bunch of keys, a box of matches, and some change in his trousers pockets, and Garda Grogan put the belt and box of matches in an envelope and handed it to the Sergeant in charge (Q. 24/26, 3rd day).
These were the three persons who were present at the search of the plaintiff. I will return to the search later in this judgment.
In relation to the fire, the plaintiff in direct evidence said that he was put in the cell and after about fifteen minutes he called out for a cigarette.
I was shouting out through the bars, ‘could I have a cigarette please’. (Q. 51).
There was no response to his call for a cigarette and he said that he found two boxes of matches in his left trousers pocket (Q. 53/59). He then called out that they had left him with two boxes of matches and said: (Q. 59)
Now lads, I am going to set this cell on fire, we are all going to go up in smoke if I don’t get a cigarette.
There was no reply so he said that he would count to ten, and did so. He was asked by his counsel:
Q.65. And after you had counted up to ten what did you do then?
A. No reply so I said. ‘Right lads, up the cell is going to go and yourselves and myself in it’. I took the small pillow from the bunk and put it down on the ground and struck a match and put it to the pillow, the floor, the flames just ran across the floor as if it was petrol that was on the floor and then up around the walls. (The floor was proved in evidence to have been a concrete floor).
In cross-examination, Day 2, Q. 39/41, he said that while he was holding on to the bars (in the door of the cell) he could see through them into the corridor, and seeing no one in the corridor outside the cell, he had to put his head down the corridor to shout for the cigarette, and that there were actual bars in the door that he could put his head through and that he did so. All this took place according to the plaintiff within approximately fifteen minutes of his being put in the cell.
The other relevant witnesses who were present in the Garda Station on that afternoon were Garda Gallagher, Garda Harty, and Sergeant O’Donovan.
Garda Gallagher was on duty in the Station and was told by Sergeant O’Donovan (the Station House Officer) to visit the plaintiff every fifteen minutes as he was drunk. He visited the plaintiff every fifteen minutes up *551 to and including 4.30, after which he went for his break. At each of the visits up to and including 4.00 o’clock, the plaintiff was sitting on the bench in the cell. At the 4.15 visit he was accompanied by Sergeant O’Donovan, who spoke to the plaintiff and flushed the toilet in the cell. At the 4.30 visit the plaintiff was standing up and appeared to be holding up his trousers. He made a record of the visits as he carried them out on a form he called C84 and signed it. He produced that record in evidence. It was not suggested to him that his record was not a genuine contemporary record of his visits to the plaintiff, nor was he challenged on its accuracy or on his veracity.
Sergeant O’Donovan, the Station House Officer, visited the plaintiff at 4.15 with Garda Gallagher. The plaintiff complained of the smell from the toilet and he flushed the toilet. At 4.45 he looked at the plaintiff through the peep-hole to see that he was alright. At 4.53, he heard shouting coming from the cell block and he sent Garda Harty to investigate. On being told there was a fire in the cell, he then ran down and saw the fire in what he called the far right hand corner of the cell and took the plaintiff out. He said that there was no pillow in that cell or in any of the cells. He heard no shouting from the plaintiff at anytime before the fire nor was he at anytime asked for a cigarette. According to him, the plaintiff was a quite placid prisoner.
Garda Harty arrived at the Station at 4.52. A few moments later he heard some shouting from the cell area and went there, where there are three cells in a row. He found smoke coming from the edges of the middle door (being the cell in which the plaintiff was), and he looked through the peep-hole of the door and saw the cell on fire. He was not cross-examined.
As to the search carried out, Garda Grogan was called by the plaintiff and adopted by him as a credible witness. The only two witnesses called on behalf of the plaintiff on this issue were in agreement that the search was a thorough search and that his pockets had been emptied out and the linings of the pockets turned inside out. There was therefore no conflict between the plaintiff and Garda Grogan and the jury could not in my opinion be asked to speculate that both of the plaintiff’s witnesses were wrong. They were corroborated by Garda Keenan who was called for the defendants. The position therefore was that, in relation to the adequacy of the search, the evidence was all the one way. In these circumstances, in my opinion, a conclusion that the plaintiff had been left in possession of two boxes of matches in his left trousers pocket, when that pocket had been pulled inside out and the lining pulled out, was one to which a jury of twelve reasonable men and women could not or ought not come and would be perverse.
If, as an alternative conclusion, the plaintiff was left with one or two loose matches in some part of his clothing notwithstanding the search carried out by Garda Grogan, that would not in my view be evidence of a lack of reasonable care on the part of the Garda in carrying out the search. The standard to be applied is one of reasonable care, not of an insurer of *552 the plaintiff’s safety. Further the plaintiff’s evidence in relation to his finding two boxes of matches in his trousers pocket was inextricably bound up with that part of the evidence in which he described calling for a cigarette and warning the Gardai while he was standing at, holding on to, and putting his head through the bars in the cell, approximately fifteen minutes or thereabouts after he was put into the cell. It was established in evidence, and accepted by the plaintiff on the hearing of the appeal, that there were no bars in the cell, the door being a solid metal door apart from the small peep-hole, and that the fire did not take place until shortly before 5.00 p.m., approximately two hours after he was put in the cell.
Having regard to the evidence as to the search, and the context in which the plaintiff alleged that he found two boxes of matches in his pocket, and to the time at which this was alleged to have occurred, any finding that he had been left with two boxes of matches, would, in my opinion, by wholly perverse. The learned trial judge should, in my judgment, have acceded to the application of the defendants to have the case withdrawn from the jury.
In the course of the appeal, the plaintiff’s counsel sought to advance a second ground i.e. the alleged failure of the Gardai to heed the warning that the plaintiff gave that he had been left with two boxes of matches and would burn the cell, and their failure to respond to that threat. Quite apart from the opinion I have expressed as to any such finding of a jury being perverse, this was a matter which was not pleaded, or argued, or in respect of which a question to the jury was sought, nor was it dealt with by the trial Judge in his charge to the jury, nor was there any requisition to the trial Judge to have the jury recalled to deal with it. In addition, towards the end of the plaintiff’s submissions on the appeal it was suggested that the question which was put to the jury was in some way inadequate in the circumstances of the case. This Court is a court of appellate jurisdiction, and has frequently repeated that the run of the case in the High Court is, in our adversarial system, for the parties and that the court would, save in exceptional circumstances, consider the appeal only in the light of the run of the case in the High Court. It would in my view be wholly unfair to one party if, on the hearing of an appeal, the other party was permitted to argue a case not pleaded, argued, or dealt with by the trial Judge and jury in the High Court. The plaintiff should not therefore in my opinion be permitted to advance such a ground at this stage having regard to the run of the case in the High Court.
In respect of the alleged inadequacy of the question left to the jury, the true legal position in such cases was dealt with by this Court in Grealy v Bank of Nova Scotia (unrep) judgment delivered 11 April 1975. In that case, O’Higgins CJ, delivering the unanimous decision of the court said at p. 13:
It is a well-established rule that in the absence of special circumstances a court of appeal will not entertain an objection to the questions put to the jury at the trial if the objection was not taken at the trial. In Steele v Belfast Corporation [1920] 2 IR 125, at p. 139, Sir *553 James Campbell C. said: ‘In every case the duty of framing the questions that are appropriate to decide the issues raised by the pleadings rests primarily upon the Judge at the trial; but where it is admitted that the case is one proper to be submitted to the jury the Judge is entitled, if he so desires, to invoke the assistance of counsel on both sides in framing the questions, and where this is given, or possibly by the acquiescence of silence, or where the Judge, as he frequently does, offers to submit any further or other questions that may be asked for on either side, the Court will not in the absence of special circumstances entertain, upon a new trial motion, any objection to them on the ground of defect in form or omission’. That expression of opinion was approved by the Supreme Court in Brennan v Minister for Finance 96 Ir. L.T.R. 54.
There are in my view, no such special circumstances in this case nor did the plaintiff’s counsel seek to advance any such special circumstances on the hearing of the appeal. Even if this point was open to be argued, I am satisfied that it would not be open to a jury to hold, in the circumstances, that it was negligent to ignore any rantings or threats (if made) of this drunken plaintiff to start a fire in the cell.
At the trial, counsel on behalf of the plaintiff submitted that the case was one to which the doctrine of res ipsa loquitur applied. The learned trial judge, in my opinion correctly, ruled that the doctrine did not apply, and no appeal was taken to this Court against that ruling. In my view, on no version of how the fire started could the doctrine apply. Only the plaintiff could say (if even he could) how this fire started, so the onus of rebutting negligence could not pass to the defendants.
As an alternative ground of appeal, the defendants submitted that the finding of 15 per cent of fault on the part of the plaintiff and 85 per cent on the part of the defendants was perverse and should be set aside. Mr Fitzgerald SC on behalf of the plaintiff did not dispute that on the evidence there was contributory negligence on the part of the plaintiff. He sought however, to stand over the proportion of fault found by the jury. In my opinion, on the evidence the proportion of fault found on the part of the plaintiff should have been appreciably greater than that found on the part of the defendants. The finding was therefore in my opinion perverse.
With regard to the damages awarded, I agree with the Chief Justice that for the reasons given by him the loss of earnings to date were excessive, the loss of earnings for the future was unsupported by evidence and unwarranted, the general damages to date were not excessive, and that the general damages for the future were excessive.
As I would hold that the learned trial judge should have acceded to the application of the defendants to withdraw the case from the jury, I would allow this appeal and dismiss the claim of the plaintiff.
McCARTHY J:
The overriding consideration, much stressed by Mr Fitzgerald SC on his behalf, was that the plaintiff was arrested and brought to the Garda Station because he was drunk and incapable, and that, in the Station, he was put in a small cell into which he was locked and where there was no window or other means of seeing out. It was in these circumstances *554 that the defendants owed the plaintiff a duty to take reasonable care that he would not have the opportunity of injuring himself.
In seeking to set aside the finding of the jury that they were negligent, the defendants call in aid much of the plaintiff’s own evidence, whilst rejecting the critical part, that he was left with one box or two boxes of matches on his person. On the issue of the plaintiff’s own evidence, the defendants blew hot and cold — where it suited, as in the plaintiff’s agreement that there had been a thorough search of his person, the defendants did not contest it but rather insisted that the jury must accept it, whereas, where it did not suit, as in the plaintiff’s evidence of finding the boxes of matches on his person after the alleged search, the defendants argued that a jury would be perverse in accepting such evidence. This very problem of relying upon the plaintiff’s own evidence derived directly from his drunken condition and, possibly, to a degree from the nature of the place in which he was kept, alone.
One of the Gardai who had arrested the plaintiff, was called as a witness and gave evidence as to the nature of the search. There was no evidence that could take away from the very fact that there was a fire and that it could only have been caused by the plaintiff, lacking any Promethean qualities, by the use of matches. Mr Fitzgerald SC has emphasised the circumstance, that, up to the time of the fire, the plaintiff had not been charged, presumably because of his drunken condition, and his inability to understand a charge. Although the plaintiff purported to give a clear and detailed account of the entire incident, in at least one feature he was clearly and significantly wrong — there were no bars through which he might push his head. In my view, if the jury, having been properly directed in this regard, were to conclude that they could not rely upon the evidence of the plaintiff himself, and merely had the evidence of the fire having occurred, they could properly conclude that, the burden being upon them, the defendants had failed to prove that they had not been negligent.
The learned trial judge left but one question on negligence to the jury; I wholly agree with the observations of the Chief Justice that a case of this kind required specific questions as to the nature of the negligence on either side and the most careful direction as to the manner in which the jurors should consider the evidence they heard. As a result, in my view, the trial was unsatisfactory and there should be a new trial on all issues. I express no view as to the apportionment of fault made at the trial; it will be for the jury at a new trial, if the issue arises on the evidence adduced, to apportion fault as it thinks fit, bearing in mind the condition of the plaintiff at the relevant time.
Crawford v. Keane
[2000] IEHC 42 (7th April, 2000)
JUDGMENT delivered by Mr. Justice Barr on the 7th day of April, 2000
1. It is not unusual in running-down actions that the alleged circumstances of the accident in question as deposed by each party have little in common. It does not follow that any such witness is deliberately untruthful. In most instances the explanation for the disparity in recollection is that their purported memory of events has been coloured by their own particular interest. However, in this action the disparity between the rival accounts of the accident is profound and raises an issue of deliberate falsehood.
2. The plaintiff is 50 years of age. He is a married man and resides in Manorhamilton, Co. Leitrim where he carries on practice as a solicitor. At about 6.30 p.m. on 17th July, 1996 he drove his BMW motor car from the Dublin city centre towards Clontarf. As he approached Fairview Park there was heavy outgoing traffic in three lanes. He was driving in that nearest to the centre of the road. As he approached the Malahide road junction the lights turned red against the outgoing traffic which was brought to a halt. He stated that he was about the twentieth vehicle from the lights when he stopped and that he was the last car in his line. The lights changed and the vehicles ahead of him moved off in sequence. As he was about to move forward he heard a screech of brakes behind him and he looked in his mirror. He saw a van with a protecting bullbar heading towards him and about ten feet away at that time. His car was still stationary. There was what he described as “a huge impact”. Substantial damage was done to the rear of his vehicle and the cost of repairs was admitted as being £3,273.00. The impact was such that it drove the chassis forward and also the rear section of the car which jammed one of the back doors. The plaintiff says that he suffered severe shock which caused him to vomit when he got out of the car. His neck felt very sore and also his shoulders and lower back. The plaintiff also stated that the defendant, who was the driver of the van, came over to him and said that he was sorry for what he had done and added “I thought you were moving forward. I braked but couldn’t avoid hitting you”. The defendant accepted full responsibility and never alleged that the plaintiff had any fault in the matter. The plaintiff enquired “will I get the guards” and the defendant responded that there was no need to do so as the accident was his responsibility. He suggested that they should move their vehicles to the side of the road as they were obstructing traffic. He then took out a piece of paper which was produced in evidence on which he wrote his name and address; the name and address of his insurance brokers; the name of his insurance company; his policy number; registration number; mobile phone number and home phone number. The plaintiff wrote on the paper “white Nissan van diesel” and later that night when he returned home his wife, who works with him in his practice, added “RTA 17/7/96 6.40 p.m.”
3. The plaintiff says that he gave the defendant his name and address but does not know whether the latter wrote it down. He denied having reversed into the van. He does not recall any third party appearing on the scene. At the end of the incident the parties shook hands and went their separate ways. Both vehicles were drivable. The plaintiff denied that the defendant at any stage left the scene for the purpose of phoning the police or for any reason.
4. A full defence was delivered in due course in which it was alleged by way of contributory negligence that the plaintiff had suddenly and without warning reversed into and collided with the defendant’s van and that at the time the plaintiff was driving his motor car he knew or ought to have known that it was unsafe so to do by reason of his consumption of alcohol. In fact the plaintiff has been a total abstainer from alcohol all his life and has been a member of the Pioneer Total Abstinence Association since his school days. This fact was unreservedly conceded by Mr. McKenna on behalf of the defendant at the commencement of the trial and that aspect of the defence was withdrawn.
5. The defendant’s evidence was in stark contrast to that of the plaintiff. He said that there was no bullbar on his van. He was travelling in the same line of traffic as the plaintiff and, with him, was stationary at the Malahide lights. There was one other car between the vehicles. As they were all waiting for the green light the latter car indicated an intention to move into the middle lane and did so. At that point the defendant moved forward to take its place behind the plaintiff. As he was doing so the latter reversed back at speed. He applied his brakes. At the time when the defendant moved forward there were only two vehicles ahead of him i.e. the BMW and a vehicle immediately in front of it which he thought had broken down. In the event it drove away and the defendant ultimately conceded that it had not broken down but its engine may have stalled temporarily. He described the impact between the BMW and the van as being “soft”. Only £150 worth of damage was done to his vehicle. He did not make any claim on the plaintiff as he thought that his insurers were doing so on his behalf even though he had only third party cover. In fact no claim was made on the plaintiff by or on behalf of the defendant.
6. The defendant stated that when he got out of his car, he was very irate and swore at the plaintiff. He contended that the latter explained that the car in front of him had remained stationary when the lights had changed and he was trying to manoeuvre around it. He put his hand on the back of his neck and said that he had a slight pain there. The defendant asked if he would get medical assistance for him, but the plaintiff assured him “not to worry that he was okay”. He did not see the plaintiff vomiting. He stated that they were unsure what to do at that point as there was a considerable build-up of traffic. The plaintiff suggested that they should move their vehicles to the side of the road. The defendant added that he was beginning to calm down then and the plaintiff told him not to worry that he would sort everything out and fix things up. The defendant told him that he would ring the guards and asked the plaintiff to hold on until he found a telephone. In the event he couldn’t find a phone in neighbouring shops and when he came back to the scene the plaintiff had left. When asked about his mobile phone he alleged that when he returned to the van for the purpose of driving it to the side of the road he found that the phone had been damaged in the accident and, therefore, was not available to him for phoning the police.
7. Notwithstanding Mr. McKenna’s formal withdrawal of the allegation about alcohol and his acceptance that the plaintiff is a lifetime total abstainer, the defendant persisted in alleging in evidence that the plaintiff’s manner was very unusual and that he had smelt alcohol from his breath. He alleged that he reported the accident at Clontarf Garda Station that evening. An officer questioned him about the incident but made no record of it when he learned that there had been no personal injury involved.
8. The defendant also contended that when he returned to the scene having made an abortive effort to find a telephone, a man who he previously did not know came over to him with a piece of paper on which he had written his name and address. He handed that to the defendant and told him that he had witnessed the accident from a nearby bus-stop. They had no other discussion at that time and the man walked back to the bus-stop again. His name was Frank Roche and the defendant stated that he called to him about a week later and then found out what he had seen.
9. Mr. Roche gave evidence on behalf of the defendant. He said that he was standing at a bus-stop on the Fairview Park side of the road near the place where the accident happened. He was waiting with two or three others for a bus to bring him into the city. He stated that there were three rows of outward going vehicles stopped at the Malahide road traffic lights. There was a car between the van and the BMW which drove out of the line and “the van moved up a small bit and the BMW backed into him”. He stayed at the bus-stop but after the vehicles had moved to the other side of the road he crossed over using a nearby footbridge and gave the defendant a piece of paper on which he had written his name and address. About 15 minutes had elapsed by then since the happening of the accident. Subsequently he was interviewed at his home by an official from the defendant’s insurance company. He was given a form which he completed in the presence of the latter. The form included the following question 9:- “Was there anything to obstruct the view of either driver?” In answer he wrote down “Car broke down in front of BMW”. His description of the accident on the form was “Car broke down in outer lane going to Clontarf. BMW reversed back and hit the van. Both drivers got out. I heard the van driver ask the BMW driver why he reversed. BMW driver never answered the other driver.” In the course of his evidence Mr. Roche stated that he did not hear any conversation between the parties. He indicated that he was hard of hearing and he had heard no screech of brakes. It had also emerged from the evidence of the defendant, if true, that the plaintiff had left the scene before Mr. Roche approached him with his piece of paper.
10. If there had been no other liability evidence the plaintiff’s version of events might not have been accepted by the court. However, there was another crucial witness whose identity was unknown to either party at the time of the accident or for some substantial time thereafter. Garda Peter Connolly of Clontarf Garda Station deposed that he had witnessed the accident. He was on leave at the time and was driving towards the city. As he moved from the traffic lights at Malahide road he saw the defendant’s van “smash into the back of a black BMW”. He did not stop but called to the station for the purpose of arranging for a police car to investigate the accident. Nearly a year later when the plaintiff called to the station to enquire whether the gardai had any information about the accident he learned that Garda Connolly had witnessed it. At the time when the latter witnessed the accident he said that he was close to the van and the BMW – so close that he feared the van would swerve out and strike his car also. He stated that the plaintiff did not reverse into the van. Garda Connolly also confirmed that it was the established practice at Clontarf Garda Station at that time to record in a ledger brief details of traffic accidents when reported by members of the public. He had checked the ledger and there was no record of the alleged report made by the defendant.
11. I unreservedly accept the account of the accident given by the plaintiff and Garda Connolly, a truly independent witness. I reject the defendant’s testimony and also that of Mr. Roche. The defendant’s evidence in particular must be deliberately false if (as I find) the plaintiff’s testimony is truthful. As to Mr. Roche; it is highly improbable that 10 or 15 minutes after the accident he would have left the bus-stop and used the pedestrian bridge to get to the other side of the road for the purpose of handing his name and address on a piece of paper to the defendant without any discussion about what he had allegedly seen. On his own evidence he had been waiting for a bus into the city at that time for 25 minutes or thereabouts. Furthermore, I do not accept that the accident form was completed by him in the presence of an insurance official. If such a person had called to see him the probability is that the latter would have recorded the witness’s answers – particularly as Mr. Roche is not a good writer. Furthermore, the description of the accident on the form and the answer to question number 9 suggests the likelihood of collaboration with the defendant. In the light of the plaintiff’s and Garda Connolly’s evidence it is impossible to avoid the inference that for whatever reason there has been collusion between the defendant and Mr. Roche for the purpose of establishing the innocence of the former as to responsibility for the accident by way of deliberately false testimony at least on the part of the defendant. This sinister conduct raises an issue as to whether in all the circumstances the plaintiff is entitled to exemplary damages arising out of the reprehensible behaviour of the defendant. I am satisfied that he is entitled to be compensated on that basis. In coming to that conclusion I have also taken into account the persistance of the defendant in falsely swearing that after the accident the plaintiff smelt of alcohol.
12. The law as to exemplary damages in this jurisdiction is defined in the judgments of the Supreme Court in Conway -v- Irish National Teachers Organisation [1991] 2 I.R. 305. Finlay C.J. specified the three headings of damages in Irish Law which are “potentially relevant to any particular case”. The third category he described as follows:-
“Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered.”
13. See also my judgments in Lyons -v- Elm River Limited and Another delivered on 16th February 1996 (unreported) and F.W. -v- British Broadcasting Corporation delivered on 25th March 1999 (unreported).
14. I have no doubt that the facts which I have found bring the instant case within the ambit of the foregoing precept ennunciated by Finlay C.J. in Conway -v- I.N.T.O. and amply justify an award of punitive damages.
INJURIES
15. It is not in dispute that the plaintiff suffered a significant soft tissue whiplash injury involving his neck and shoulders. There is also a lesser injury affecting the lumbar spine but that may not be wholly associated with the accident. The plaintiff travels about 40,000 miles a year in connection with his practice as a solicitor and this causes him substantial discomfort and pain which comes on in the evening. He continues to require four or five analgesic tablets a week. Cold weather causes pain. He has had substantial periods of physiotherapy which has not brought about much improvement. The plaintiff was referred to Mr. Martin Walsh, orthopaedic surgeon, who comments in a medical report that:-
“His work which entails a significant amount of travel as well as sitting at a desk has tended to aggravate and perpetuate his complaints to some extent but as outlined I anticipate a full recovery in due course.”
16. Dr. Desmond McManus, who continues to treat the plaintiff, gave evidence and expressed the opinion that the whiplash injury suffered by him is one from which he will ultimately make a complete recovery but it may take up to five years for that to come about. It is evident that the plaintiff’s working pattern is tending to militate against him and I accept that he is suffering a significant degree of ongoing pain and discomfort which may continue for another year or so.
17. Special damages have been agreed at £4,750.00. I assess general damages for pain, suffering and disablement up to now and into the future at £30,000.00. I assess exemplary damages at £7,000.00 making in all the sum of £41,750.
Brennen v. Lissadell Towels Ltd.
[2000] IESC 72 (15th November, 2000)
THE SUPREME COURT
10/99
Denham J.
Hardiman J.
Fennelly J.
Between:
SHEILA BRENNAN
Plaintiff/Respondent
and
LISSADELL TOWELS LIMITED
Defendant/Appellant
JUDGMENT of Hardiman J. delivered the 15th day of November 2000 [Nem. Diss.]
1. After the hearing of this appeal on the 2nd November, 2000, the court indicated that it would dismiss the appeal and affirm the order of the learned trial Judge (McGuinness J9. The court stated that its reasons would be given at a later date and this I now do.
2. The Plaintiff suffered personal injuries as a result of falling over a timber planter or flower container which had been placed on the footpath leading from
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the premises of her employers, the defendant company, to their car park. This occurred on the evening of the 11th December, 1995. As a result of this accident the Plaintiff suffered personal injuries which are rather complex in themselves and still more so in their interaction with each other. I am of the opinion that the learned trial Judge’s award in the total sum of £191,881.28 is fully justified in the unusual circumstances of the case.
The Plaintiff and her injuries.
3. The Plaintiff is a married lady, born on the 12th May, 1955. She was accordingly 40 years old at the time of the accident. She married at the age of 33 and had three children who at the time of the accident were aged 6, 5 and 3½ years. Her husband is a mechanic. She had excelled at art in Secondary School and had been accepted for a place in the National College of Art and Design Foundation Course, but she did not take it up. At the time of the accident she had been employed in the defendant company for some 22 years, first as an assistant designer and subsequently as a designer. The work related to the computer assisted design of towels.
4. It was common case that she was good at this work and, apart from her wages, derived considerable satisfaction from it. It appears to have been a position which was uniquely suitable to her talents.
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5. The most obvious injury she suffered in her fall was an undisplaced fracture of the right radial neck i.e. a fracture of the right elbow. This would normally take six weeks to heal. She was also immediately conscious of pain in her back and of banging the right side of her head off the ground. While recovering from the arm fracture she developed persistent pain over the neck, aggravated by any movement. In the very early days of her recovery she also developed paraesthesiae of her hands and headaches. She continued to complain of these symptoms and of associated clumsiness and loss of grip.
6. The elbow injury healed satisfactorily but with a slight limitation of movement. Her other injuries have continued to trouble her.
7. The Plaintiff was unable to work in the immediate aftermath of the accident. As the months went by her condition appeared to worsen, she had difficulty in holding a pen and said that she would not be able to sit at a stool in front of a computer, and move her neck. She was unable to continue her hobby of painting (she had previously exhibited locally) and tried and failed to produce posters on a few occasions.
8. In this context, as her condition failed to improve and as she was beginning to come to terms with the restrictions on her lifestyle, she began to
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feel useless and depressed and was eventually recommended by her general practitioner to see a psychiatrist. Despite quite regular visits to the psychiatrist the evidence is that she has become depressed to a quite disabling degree, some details which will be given below.
9. The cause of the Plaintiffs neck pain, loss of grip and clumsiness have been thoroughly investigated by a number of doctors including Mr. T.W. Scannell, Consultant Orthopaedic Surgeon, Mr. Daniel Rawluk, Consultant Neurosurgeon and Dr. Brian O’Moore, Consultant Neuro-Physiologist. MIRI investigation has established that she had disc degeneration at the C5/6 and C6/7 levels with annular bulges and small central disc prolapses. This was at all times a degenerative condition and will be further discussed below. However, there was no evidence of compression of the spinal chord or of the nerve roots. It was also considered whether her neck and hand symptoms were referable to a carpal tunnel syndrome, but there was no evidence of this condition on Dr. O’Moore’s electrical tests. This condition corresponds clinically to the symptoms described but has not been positively diagnosed due to the lack of objective evidence.
10. These conditions have given rise to pain and insomnia which also fed into the depressive condition. She also has a condition of the jaws involving
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clicking on full extension which, according to Mr. Frank Brady, Consultant Maxilo-Facial Surgeon, are of a soft tissue nature and are contributed to in large part by ongoing stress and depression.
11. There was no serious challenge to the description of the symptoms or their having been caused by or (in the case of the neck and associated injuries) accelerated by the accident. Nor was there any contradiction of the evidence that the Plaintiff is now a chronic pain sufferer.
Employment Position .
12. The Plaintiff was in receipt of a gross weekly wage of £191.00 at the time of the accident. At the time of the trial she was in receipt of £90.30 per week disability benefit which the learned trial Judge disregarded in making the appropriate calculations and from this decision no appeal has been taken. She was purportedly made redundant by the Defendant in March, 1996, though this was denied in evidence by Mr. Nolan, an officer of the defendant company, in cross-examination. In further cross-examination it was established that a lady who was formerly the Plaintiffs assistant was taken on by the company (despite financial difficulties which it experienced) on a part time basis, and was being paid £40.00 a day in this capacity. Significantly, it was agreed by him that the Plaintiff should have been contacted about this opportunity and if
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she had been, “seniority would have allowed her to obtain the part time position”.
The Award .
13. The learned trial Judge’s award of damages was composed as follows:-
14. Agreed special damages £2,306.65.
15. Special damages £1,907.00.
16. Loss of earnings to date £14,163.00.
17. Loss of earnings for the future £43,554.00.
18. General damages
(a) pain and suffering to date £70,000.00.
(b) pain and suffering in the future £60,000.00.
TOTAL £191,881.28
The Appellant’s complaints .
19. The Appellant has complained of each of the sums awarded for general damages and of the sum awarded for future loss of earnings. £70,000, the Appellant said, was excessive for three years pain and suffering, and it was logically inconsistent to award a greater sum for the past than for the future. It was said that the prospect of recovery had been understated by the learned trial Judge, particularly in relation to the depression. In relation to future loss of
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earnings, it was submitted that the Plaintiffs job was effectively gone from March 1996 and that, while it was open to the Judge to accept that some form of other employment would have been available to the Plaintiff, she erred in concluding without evidence that this would have yielded £120.00 a week. She also failed adequately to discount the sums totalled for the possibilities that the Plaintiff might not have returned to work at all, might have recovered, or might have become disabled in any event, independent of the accident.
Independent degenerative change .
20. The last submission related to the facts proved by the medical witnesses in relation to the Plaintiffs pre-existing degenerative condition, described above. This raised the issue of the extent to which, and the time at which, the Plaintiffs neck and associated symptoms would have arisen in any case. Mr. Scannell agreed with an opinion expressed by Mr. Rawluk that “in this regard, the symptoms provoked by her accident could represent a premature onset by approximately five to ten years”. That, in fact, is the most favourable statement of the position from the Defendant’s point of view: Mr. Scannell himself had originally said that “she would pro bably just have been aware that she has more stiffness in her neck probably in five to ten years from the date of her injury……”
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Approach to this appeal .
21. The role of this Court on the hearing of appeals such as the present has been authoritatively considered in the case of Hay v. O’Grady [1992] 1 IR 210. The matters are usefully dealt with in five numbered paragraphs in the judgment of McCarthy J. commencing at page 217. These include:-
(1) “An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
(2) If the findings offact made by the trial judge are supported by credible evidence, this court is bound by those findings, however voluminous andj apparently weighty the testimony against them.
(3) an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection offact and a dfferent inference has been drawn by the trial judge”.
22. In this context it may be noted that the Defendant called no medical evidence and did not seriously challenge the main lines of the Plaintiff’s evidence.
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The trial Judge’s findings .
23. The learned trial Judge made a number of findings of fact of which the following appear to be central:-
“….the Plaintiff appears to be significantly disabled in a rather complex way with the interaction between her pain in her neck and shoulders and the depression which she is suffering. I think the key problem is that she had a career and a job that was very important to her and was very interesting and that she has lost all of that…..”
and:
“It is noticeable that there is a general lack of ordinary optimism on all of the medical sides, whether physical or psychological.”
24. In relation to loss of earnings the learned trial Judge held:-
“This lady as I have said is suffering from a serious and continuing disability. On the other hand, the main feature of her disability, as far as pain is concerned, is the problem about her cervical spine. I would have to take into account what Mr. Rawluk said as a result of the MRI scan. I am willing to take a figure of ten years but I think that by the end of ten years she probably would have been disabled in any case. And I am not prepared to give a figure going into the future up to her retirement date at 65 or 60”.
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25. I believe that these findings of fact are perfectly reasonable and indeed moderate. There was of necessity an element of speculation as to when degenerative changes would have become seriously symptomatic. The learned trial Judge rejected the Plaintiff’s contention that she was entitled to damages for loss of earnings for a full working life and instead opted for the longer of the periods envisaged by Mr. Rawluk and Mr. Scannell before, as a mafter of probability, serious symptoms would have arisen. She was quite entitled to do this on the evidence.
26. In relation to loss of earnings the learned trial Judge was quite entitled to accept the evidence of Miss Keenan, Rehabilitation Consultant that, had the Plaintiff been made redundant while uninjured, she would have got alternative employment, probably in the desktop printing trade. She held:-
“…..I have no evidence with regard to the wages that she might have got in that job. But I will accept a compromise figure of £120.00 net per week as likely possible earnings that she could make. Now it may well be that she could have made more than that but I have no evidence before me of that. She is a talented woman and hopefully she may be able to earn in the future….”
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27. On all the evidence, in eluding that of Miss Keenan of the Plaintiff’s excellent work record and talents, it was a moderate assumption.
28. In relation to the significant general damages awarded, it seems to me that there was strong medical evidence. Mr. Scannell stated that she had
“persistent pain in her neck and shoulders, a tingling sensation in both hands” and that “…… her depression is the most serious problem that I see. And I think this has coloured the whole prognosis for her considerably.” He said that his “general feeling was that she had lost confidence in herself and I felt that these symptoms may last indefinitely”.
29. Dr. Murphy, Psychiatrist, said:-
“I am of the opinion Mrs. Brennan did suffer and continues to suffer from a depressive illness and post traumatic stress disorder and severe and persistent pain, all of which has arisen from and are directly attributable to the accident of the 11th December, 1995. She did suffer and continues to suffer very grave pain and very grave psychological damage and psychological distress as a result of the accident. The accident was the most psychologically traumatic experience for her. Her capacity to work and enjoy life has been enormously reduced and she is considerably incapacitated as a result of the accident. It seems highly
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unlikely that she would be able to return to work as a textile designer. Mrs. Brennan’s experience of the physical and intimate side of her marriage has been considerably impaired”.
30. Dr. Peter Fahy’s evidence was to much the same effect. His prognosis was if anything more pessimistic. He said:-
“…. I am afraid things are going to become far more dfficult for her as she grows older. She is a very brave and staunch person and takes a positive view of life even in her grossly debilitated situation, and she needs constant monitoring and support on an indefinite basis and will certainly need home help”.
31. In these circumstances it appears to me that the learned trial Judge’s award for general damages were by no means excessive. The Plaintiff has a condition of constant pain, a significant loss of function and insomnia, all of which contribute to depression and have made it impossible for her to work. This in turn feeds back into the depression. She has in effect suffered the loss of her previous lifestyle, of her independence and her physical integrity. These are serious matters and must have been acutely felt in the earlier stages. With the aid of counselling and medication she has come to terms with them to some degree. She is suffering considerable pain some thirteen years earlier than, on
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the evidence, it might have been expected to become symptomatic, and it might have become symptomatic only much later or never. The loss of her work plainly means much more to her than the loss of the associated income and this is a real substantial and continuing loss.
32. Considering the sum awarded for general damages as a whole, it seems impossible to criticize it in light of all the evidence. The consequences of this relatively simple accident on the particular Plaintiff were indeed severe. Whether one regards the peak of severity as having already occurred, during the Plaintiff’s period of adjustment to her dramatically altered lifestyle, or as occurring in the future due to the continuation of certain of her symptoms is to some extent a question of impression. Since the overall figure seems proportionate to the complaints, I would not disturb the findings of the learned trial Judge, who saw the Plaintiff and her advisers, on the basis that consideration of the case on paper might suggest a greater incidence of pain and suffering into the future.
33. It should be emphasized that, in this case, the substantial sum awarded to the Plaintiff was justified by the exceptional and, on the whole, uncontested evidence of comprehensive destruction of the Plaintiff’s quality of life, which was quite out of proportion to the original comparatively minor injury to her
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right radial bone. As a consequence of the combination of depression and post traumatic stress disorder and associated pain, she has suffered the loss of her satisfying and personally rewarding employment and disruption of her family and marital life. Even if the onset of her physical symptoms is to be regarded as an acceleration of the effects of an underlying condition, her depression was considered by her medical advisers to be likely to be permanent.
34. For these reasons I would dismiss the appeal and affirm the order of the learned trial Judge.
Boyne v. Bus Atha Cliath and Anor
[2002] IEHC 135 (11 April 2002)
Judgment of Mr. Justice Finnegan delivered the 11th day of April 2002.
The Plaintiff resides at 9 Ebenezer Terrace, South Circular Road, Dublin and is a single man aged 3 8 years. He is a diesel mechanic by occupation and at the date of the accident giving rise to this claim was in the employment of a haulage company specialising in the delivery of ready mixed concrete. On the 20th January 1999 at 11 p.m. approximately he sustained serious injuries as a result of his being run over by the first named Defendant’s bus driven by the second named Defendant.
On the clay in question the first named Defendant’s 51B bus left Dublin city centre at :10.30 p.m. to travel to Bawnogue. The Plaintiff boarded the bus at Thomas Street. On that day he had finished with his employer at approximately 8 p.m. Thereafter in an adjoining premises he had carried out work on a car in a private capacity and delivered the repaired car to Baker’s public house in Thomas Street at approximately 9 p.m. He had something to drink there and later that evening had some more to drink in O’Neill’s public house in Thomas Street. In total he admits to having had six pints. He boarded the Defendant’s bus but thereafter has no recollection of the events of the evening.
Derek McKeown was a passenger on the bus at the back of the lower deck. He saw the Plaintiff board. It was immediately apparent to him that the Plaintiff had drink taken. The Plaintiff sat in the side seat on the left hand side of the bus. During his journey he was swaying in the seat. The Plaintiff and Mr. McKeown alighted at the same bus stop. Mr. McKeown pressed the bell and moved towards the front of the bus but before he got there the Plaintiff stood in the aisle without making any progress towards the door at the front of the bus. Mr. McKeown passed him and stood at the door. When the door opened Mr. McKeown sprang from the bus to the kerb a distance which he estimated at some 4 – 5 ft. Shortly thereafter he heard a moan and on looking around saw the Plaintiff in contact with the centre doors of the bus and being spun by the motion of the bus, then falling to the ground and being run over by the rear wheel of the bus which continued on its journey.
The accident was investigated by Garda Connolly. He found blood on the roadway some eleven feet distant from the bus stop in the direction in which the bus was travelling and some one foot from the kerb. I am satisfied that this represents the locus of the accident which accordingly was somewhat closer to the kerb from that indicated by the evidence of Mr. McKeown.
Mr. Barry Tenneyson gave evidence on behalf of the Plaintiff. From his evidence I am satisfied that the distance from the front of the bus to the centre of the centre doors is fourteen feet. ‘Taking this measurement together with the distance from the bus stop to the point: at which blood was found I find that the bus had travelled some 25 feet before it came into contact with the Plaintiff. A necessary corollary of this is that on alighting from the bus the Plaintiff’ proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking the Plaintiff.
The second named Defendant the driver of the bus recalled the Plaintiff boarding the same at Thomas Street. The Plaintiff appeared to be very drunk. He had difficulty getting on and had sat on the step and indeed the witness had some concerns as to whether he should carry the Plaintiff and kept an eye on the Plaintiff throughout the journey. I can summarise his evidence as to the Plaintiff s demeanour by recording that he was pleasantly drunk. The Plaintiff’ got up as the bus approached the stop at which he was to alight. Before getting off he put: 50p in the bus driver’s tray presumably by way of a gratuity. He was slow getting off and once he had alighted the driver had no further recollection of him. He was completely unaware; of the accident.
Liability
The foregoing is the totality of information available to me as to how the accident occurred. In particular I do not know if the Plaintiff reached the footpath and there lost balance and stumbled against the bus or if he was walking along the roadway. Of the two possibilities I take it as the most likely having regard to the evidence of Mr. McKeown that the bus stopped some distance from the pavement and that the Plaintiff never attained the footpath. Having regard to the point of impact he proceeded past the front of the bus and in the direction of travel of the bus and that the accident occurred in the course of the bus overtaking him while he was on the roadway. The second named Defendant was well aware of the Plaintiff s condition and ought to have taken particular care by keeping him under observation to ensure that the bus would pass him in safety: see McKevitt v Ireland 1987 I.L.R.M. 541. This he did not do as his evidence was clear that he lost sight of the Plaintiff once he had alighted from the bus.
Contributory Negligence
The Defendants plead contributory negligence and give the following particulars:
(a) Failing to have any or adequate regard for his own safety.
(b) hailing to look where he was going.
(c) Exposing himself to a risk of danger or injury of which he knew or ought to have known.
(d) Needlessly endangered himself.
(e) Failing to pay attention or sufficient attention to what he was about.
(f) Failing to have any regard for his own safety in exposing himself to a risk of injury by reason of the excessive consumption of alcohol.
(g) If the Plaintiff did fall, by himself causing the Plaintiff to fall.
(h) The Plaintiff was the author of his own misfortune.
The onus of establishing contributory negligence is on the Defendants. Where there is no direct evidence reliance must be placed on inference as a matter of probability as to what occurred: Clancy v Commissioners of Public Works in Ireland 1992 2 I.R. 449 at 467. Upon this basis I find that the Plaintiff due to his intoxicated state while on the roadway and before attaining the footpath stumbled and fell against the bus and then under the wheels of the bus. Counsel were unable to assist me with authorities as to how the court should approach the issue of contributory negligence having regard to the Plaintiffs state of intoxication.
The matter is dealt with in Charlesworth on Negligence Eighth Edition at paragraph 3 – 48 as follows –
“The excuse of drunkenness has to be regarded when considering contributory negligence. It is no excuse for failing to take reasonable care to prove that the person in question was unable to take proper care, owing to the influence of drink or drugs, which he had taken voluntarily. A drunken man cannot demand from his neighbour a higher standard of care than a sober man or plead drunkenness as an excuse for not taking the same care of himself when drunk as he would have taken when sober. (M’Cormick v Caledonian Railway (1903) SF362) “.
In Kilminister v Rule (1983) 32 S.A.S. R 39 where a person under the influence of drink stepped into the roadway in front of a car at night and was killed he was held to have contributed to the accident to the extent of 35%. I cannot see that this differs in any way from the outcome which would be expected if the Plaintiff had been sober.
In a number of cases this issue arose in circumstances where the Plaintiff was so intoxicated that he did not realise that the driver of the car in which he had taken a lift was himself unfit to drive through drink. The first of these Dann v Hamilton (1939) 1 All ER 59 was argued and determined on the basis of volenti, the Plaintiff’s Counsel having declined the trial Judge’s invitation to amend his pleadings and include a plea of contributory negligence: see 69 L.Q.R. (1953) 317. 1 find the discussion in other such cases e.g. Nettleship v Weston (1971) 3 All ER 581 unhelpful. However in an Australian case Insurance Commissioner v Joyce (1948) 77 C.L.R. 39 at 47 Latham L. J. said –
“If… the Plaintiff was sober enough to know and understand the danger of driving with (the Defendant) in a drunken condition he was guilty of contributory negligence …. but if he was not sober enough to know and understand such a danger … if he drank himself into a condition of stupidity or worse, he thereby disabled himself from avoiding the consequences of negligent driving by (the Defendant), and his action fails on the ground of contributory negligence “.
As I understand this whether the Defendant was under the influence of drink only to the extent that he knew or ought to have known and understood the risk he was running or whether he was so under the influence that he was incapable of so knowing he is nonetheless guilty of contributory negligence.
In McKevitt v Ireland 1987 I.L.R.M. 541 at 546 Finlay C.J. said –
“The finding by the Jury that the Plaintiff was guilty of contributory negligence implies a finding that he had by the time of the commencement of the fire sufficiently recovered from his drunken condition to owe a duty to take reasonable care for his own safety which he failed to discharge “.
At first sight this might be seen as authority for the proposition that a Plaintiff so under the influence of drink that he did not know or ought not to have known of the risk to his own safety would not be guilty of contributory negligence. The statement must be read in conjunction with the facts of the case. The Plaintiff was in police custody while drunk and injured himself by setting fire to his cell with matches which a search had not uncovered. The Supreme Court held that a finding of 15% proportion of fault against the Plaintiff was unreasonable to the extent that it should be set aside. I think it likely that the Learned Chief Justice was having regard to the duty which rested upon the Defendant in the circumstances of that case: In short the greater the degree of intoxication of the Plaintiff to the knowledge of the Defendant the more onerous the duty of care on the Plaintiff. The statement merely acknowledges the effect of Donohoe v Stevenson on the principle enunciated in M’Cormick v Caledonian Railwav.
In McEleney v McCarron and Another (1993) 2 I.R. 132 an accident occurred when the Plaintiff’ who was drunk was being assisted to his home by two girls and he fell onto the road. The girls had succeeded in moving his body such that his legs were on the footpath and his torso on the road when the second Defendant’s car approached. The girls moved onto the footpath and attempted to attract the attention of the Defendant. The Defendant believed the girls wished to thumb a lift and did not stop his car and ran over the Plaintiff s head causing him severe personal injuries. In the High Court the Plaintiff was found guilty of contributory negligence and fault was apportioned 30% to him. The Defendant appealed to the Supreme Court where it was held that the Defendant in the circumstances of that case was not negligent. The court expressed no opinion on the questions of contributory negligence and the apportionment of fault.
In Judge v Reape (1968) I.R. 226 the facts were that the Plaintiff had consumed a considerable amount of alcohol before accepting a lift in the Defendant’s motor car when he knew or ought to have known that the Defendant was drunk. The Defendant did not deny negligence but pleaded that the Plaintiff well knew that the Defendant was drunk and so was guilty of contributory negligence. The jury found that the Plaintiff had not been negligent. The Supreme Court on appeal found that there was plain evidence of contributory negligence and ordered a retrial. Counsel for the Respondent on the appeal relied on passages from Insurance Commissioner v Joyce but not the passage which I have quoted above. The passage quoted in the Judgment and it appears to me accepted as correct by the Supreme Court is as follows –
“If a passenger in a motor car is himself drunk so that he does not realise that the driver of the car is also drunk and allows himself to be driven, he is guilty of contributory negligence in the event of a collision”.
From the foregoing it seems to me that the following principles can be gathered –
(1) If the Plaintiff is under the influence of drink to an extent that affects his ability to take care of himself and whether he knows or ought to know of the risk he is running this is a factor relevant to the existence and the extent of the Defendant’s duty of care.
(2) In assessing the Plaintiff s conduct for the purposes of contributory negligence his intoxicated state is to be disregarded and this is so whether notwithstanding his intoxicated state he knew or ought to have known of the risk which he was running or was incapable of so knowing.
In the circumstances of this case in apportioning liability I take into account the circumstance that the second named Defendant was aware of the intoxicated condition of the Plaintiff and the extent of his intoxication and evaluate his conduct accordingly. Insofar as the Plaintiff is concerned I evaluate his conduct as if he were sober. I am satisfied that the Defendants on that basis did not take reasonable care for his own safety. If sober he would have moved himself promptly to a position of safety some little way from the bus and would not have stumbled against and under the bus as he did. I apportion liability 75% to the Defendant and 25% to the Plaintiff.
General Damages
The Plaintiff sustained horrific injuries which can be summarised as follows:
(1) A degloving injury of his right lower limb extending from his upper thigh to his distal tibia.
(2) An ischaemic right foot secondary to transection of his right popliteal vessels.
(3) A compound comminuted fracture of the mid shaft of the right femur.
(4) A compound comminuted grade 3 (c) fracture of the right tibia.
(5) A bruised and swollen left ankle with an area of skin necrosis.
He was treated at Tallaght Hospital with the application of an external fixator to his right femur and his right tibia and debridement of his wounds and a repair of his right popliteal vessels. He was an in-patient in Tallaght Hospital for almost six months. He had some 21 procedures, 20 of which were under general anaesthetic and one under local anaesthetic. From an orthopaedic point of view the movement of his right knee is virtually non existent and in the right ankle he has a passive range of movement of just 10° so that he is just able to get his heel to come to the floor. In the opinion of Mr. Borton his limb is viable but constantly very painful. His left leg is functioning normally. The right leg is virtually useless. In the future the question of amputation may arise in which event there will be some difficulties in fitting a satisfactory prosthesis in view of his extensive scaring. His ability to work is seriously compromised although he could do sedentary or office work which did not require physical exertion. In addition he sustained a severe degloving injury and now has severe scaring on both legs and also on the donor site for numerous skin grafts. Skin grafts became infected and took several months to heal. Not surprisingly the Plaintiff developed a reactive depression in February/March 2000. Fortunately this improved over time. However he still suffers from mild to moderate mood changes and anxiety – he is a nervous passenger. It is expected that his psychiatric condition will resolve. It is worth recording that Mr. Pegum in evidence expressed the view that it would have been better for the Plaintiff had his leg been amputated at the beginning as this would have resulted in less pain, more function and an overall better result.
On the basis of the admitted medical reports and the evidence of the Plaintiff and of Mr. Pegum [ assess the Plaintiff’s claim for general damages as follows:
Pain and suffering to date £75,000
Pain and suffering into the future £75,000
Total: £150,000
Special Damages
The Plaintiff’s special damages have been agreed save and except the claim in respect of future loss of earnings. The agreed special damages are as follows:
Medical and related expenses £60,111.77
Loss of earnings to date £43,019.77
It is agreed between the parties that the Plaintiff’s future loss of earnings should be calculated on the basis of a net weekly loss of £175. The task of the court in assessing damages wider this heading is to arrive at a lump sum which represents as nearly as possible full compensation to the Plaintiff. In this case the multiplicand has been agreed but the parties differ as to the multiplier – there is no agreement as to the assumed real rate of return on capital that is the return net of tax and management expenses and the assumed rate of inflation. The higher the assumed real rate of return on capital the lower will be the lump sum award. The courts have taken the approach that inflation can be taken into account by the assumption that a Plaintiff can invest the lump sum award and more particularly that the same can be invested partly in equities and partly in gilts resulting in both a hedge against inflation and a reasonable degree of security. In the United Kingdom this approach was reviewed in detail in Wells v Wells 1998 3 All ER 481 that review being prompted by the availability in the United Kingdom of index-linked Government stock which in addition to providing an income also guaranteed that the capital sum preserved its real value by being index-linked to the retail price index. It is against the background of the availability of such an investment that the dicta in Wells v Wells must be considered. There is no equivalent investment available in this jurisdiction and accordingly to avail of that investment available in the United Kingdom would carry with it an exchange risk as a result of which the security which such an investment offers would be undermined. Within the Euro zone similar investments are available in France but again the security offered is undermined by the possibility of divergent rates of inflation between France and Ireland. For the foregoing reasons I do not consider the availability of index-linked Government stock whether in the United Kingdom or in France as relevant to the approach this court should adopt in arriving at an appropriate lump sum award. Having regard to the range of investments available in this jurisdiction, in the euro zone generally, in the United Kingdom and other economies and having regard to the general requirement of a Plaintiff that he act reasonably to mitigate his damages it seems to me that the approach of the Court of Appeal in Wells v Wells is the appropriate one to adopt –
“It is for the court to hold the balance evenly between both sides, and just as the Plaintiff is entitled to an award which achieves a nearly as possible full compensation for the injuries sustained, so also we think the Defendant is entitled to take advantage c f the presumption that the former will adopt a prudent investment strategy once he receives his award. Furthermore the court, which as already noted, is dealing with probabilities when fixing the multiplier, can and should pay regard to the high probability that the Plaintiff will invest prudently; any other approach would be artificial. ”
I am satisfied that a prudent investor having a lump sum to invest would apportion the same between gilts and equities the apportionment in any particular case however depending on his particular circumstances.
As to the proportion of a fund which should reasonably and prudently be invested in equities and gilts the evidence before me is that the average for 18 Irish managed funds is that 70% is invested in equities and 30% in gilts (to include 5.6% in property and 4.7% cash deposits). I consider this approach as a reasonable and prudent one. I accept the evidence given on behalf of both the Plaintiff and the Defendants that there is no such thing as a risk free investment and that the risk associated with investment in gilts is less than that in investment in equities. As against this a prudent investor whether managing his own funds or partaking in a managed fund will spread the risk associated with equities. As of the 31st December 2001 the typical Irish find had approximately 18% of its equities in Irish equities and the remainder spread between the United Kingdom, the euro zone, North America, Japan and the Pacific excluding Japan as a means of minimising risk. The beneficial effect of such a policy was made apparent by the events of February this year when the share price of Elan (22% of the Irish index) and AIB (14% of the Irish index) lost 65% and 13% of their value. The ten largest Irish managed funds had an average exposure to these two shares of 2.3% of their total funds. It seems to me that this puts in perspective the risk associated with prudent investment in equities. In calculating the real rate of return on equities allowance is made for management charges.
The suggested split between equities and gilts at 70% and 30% is not constant or appropriate in every case and the appropriate split will be determined by the anticipated duration of the fund the shorter that period the greater percentage of the fund which should be maintained in gilts. For the last five years of such period it would be appropriate to have the bulk if not all of the fund in gilts or on deposit to minimise the risk of having to realise equities in a depressed market. In Wells v Wells Lord Lloyd said –
“So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the Plaintiffs. Equities may well prove the best long term investment. But their volatility over the short term creates a serious risk … If there is a serious fall in equities in the first five or ten years during which the Plaintiff will have had to call on part of his capital to meet his needs and will have had to realise that part of his capital in a depressed market the depleted fund may never recover “.
Notwithstanding this it does not seem to me that investment managers having custody of pension funds can be said to be imprudent. Again the investment policy of the Wards of Court Office on advice follows a general policy in relation to longer term funds, that is over ten years, of maintaining a 70% 30% equities gilt split. I therefore consider that course to be one which a prudent investor would follow and I regard the Plaintiff as having a duty to act reasonably to mitigate his damages and that it should be assumed that he will follow the course of a prudent investor.
The next matter to be determined on the basis of the evidence is the return to be expected if such an investment policy is pursued. Firstly in this regard I adopt the view of the House of Lords in Wells v Wells that in the case of a Plaintiff it should not be assumed that the income on investments will be reinvested. However it seems to me that some account must be taken of the possibility of investing income. If one assumes that income is received at the end of year one and applied rateably throughout year two then throughout year two a decreasing proportion of the income will be available for investment for example by placing on interest bearing deposit: a reasonable approach would be to assume for the purposes of calculations that the entire interest earned in year one would be available to be placed on deposit for one half of year two and so on in succeeding years. In the evidence given before me the Plaintiff s calculations as to real rate of return were on the assumption that income would not be reinvested while the Defendant’s calculations were on the basis that it would and to some extent thus accounts for the difference of opinion expressed by their respective witnesses.
The evidence for the Plaintiff is that the real rate of return on a portfolio containing 70% equities and 30% gilts would be 2.9%. For the Defendant the evidence was that the real rate of return on a split portfolio would be 4% and perhaps somewhat higher. The Plaintiff’s calculations are on the basis that income would not be reinvested while the Defendants’ are on the basis that it would.
Having regard to the evidence and the view which I take of the course which a prudent investor would pursue and the obligation of a Plaintiff to act reasonably to mitigate his damages by acting as a prudent investor I accept the Plaintiff s evidence as to the real rate of return. The same however requires some adjustment to take into account the possibility of reinvesting income to some extent. Making this adjustment I find that the appropriate multiplier having regard to the Plaintiff s particular circumstances should be calculated upon the basis of a real rate of return of 3%.
The Plaintiff s work history is as follows. He commenced employment in 1978 as an apprentice mechanic and continued with that employer until 1983 following which he remained out of work for a year. He then obtained employment as a static guard with a security company for one year. In 1985 he resumed employment as a mechanic and continued in that employment until 1990 after which he was unemployed for some two years other than for some casual work. In 1992 he again obtained employment as a security guard for one year after which he returned to his trade and continued to work at his trade until the date of the accident. I had the opportunity of assessing the Plaintiff while he gave evidence and I accept that it is likely were it not for his accident that he would have continued to work until the age of 65. Having regard to the serious nature of his injuries and the difficulties which lie experiences in carrying out his work he is unlikely now to continue to that age and it is likely that he will cease work altogether in fifteen years time at age 55 approximately. The appropriate multiplier based on a real rate of return of 3% in respect of his loss of earnings at £175 per week to age 65 is £975. This gives a figure of £170,625. In addition he will lose £67 per week from age 55 to age 65: I have been given an agreed multiplier for this calculation on the basis of a real rate of return of 2’/z% at £354 per £1: it is necessary to reduce this to reflect a real rate of return of 3% and I propose to adopt a figure of £325 per £1 in respect of additional loss of earnings from age 55 to 65. This gives a figure of £21,775. Having regard to the Plaintiffs employment history pre accident it is appropriate to make some reduction under Reddy v Bates. Further I take the view that notwithstanding that he will be unfit for full time employment between the ages of 55 – 65 the Plaintiff has special skills as a diesel mechanic and is likely to engage in some intermittent or casual employment. I propose abating the total award for future loss of earnings of £192,400 by 10%. This results in a net award under this heading of £173,160.
The total award to the Plaintiff accordingly is as follows –
Pain and suffering to date 75,000.00
Pain and suffering into the future 75,000.00
Agreed. special damages other than loss of earnings 60,111.77
Loss of earnings to date 43,019.77
Future loss of earnings 173,160.00
Total: 426,291.54
This sum converts to euro at 1 euro = IR£0.787564 in the amount of E541,278.60.
The Plaintiff having contributed to the accident by his own negligence to the extent of 25% this sum must be reduced in that proportion. I award the Plaintiff the sum of €405,958.95.
Riley v. Bus Eireann
[2002] IEHC 41 (13 February 2002)
THE HIGH COURT
2001 13473P
CARL RILEY
PLAINTIFF
AND
BUS EIREANN
DEFENDANTS
Judgment delivered by Mr. Justice Barr on the 13th day of February, 2002
This case is an assessment of damages only. After a lengthy hearing it ultimately emerged that there is no real controversy between the parties as to the facts, but how damages based thereon should be assessed is in issue. The following facts have been established in evidence:-
1. The plaintiff is a 42 year old married man with a grown up family. He resides with his wife and one child in a village 10 miles north of Tuam and 30 miles from the city of Galway where he worked for the defendant as a bus driver from 1993 until compulsory retirement in 2000. He left school after primary education and has had an excellent work record since then. It included several years in the army where he rose to the rank of corporal and was selected for service in the Lebanon. However, for most of his latter working life he has been employed as a bus driver, first in Dublin with C.I.E. as it then was and subsequently with Bus Eireann in Galway, primarily on city routes but also including long distance runs to Dublin and elsewhere occasionally.
2. The defendant company has been expanding in recent years and has taken on a substantial number of new drivers most of whom are in middle age. Drivers in good health remain in employment until age 65.
3. Expansion of the defendant’s services gave rise to a restructuring of driver employment which came into operation in July, 2000. It has brought about a reduction in overtime. Nonetheless, bus driving for the defendant is a well paid occupation under the new regime. It is accepted that a driver with the plaintiff’s seniority who wishes to have a rota including Sunday driving (as the plaintiff would have done) would have weekly earnings of £518.00 per week at that time net of tax.
4. On 16th April, 1997 the plaintiff while driving his single-decker city bus in Eyre Square, Galway was stationery in traffic when another bus, the brakes of which appear to have failed, ran into the back of his vehicle. He believes that the impact was such that his bus was prematurely written off. It was also forced forward for a significant distance.
5. The plaintiff suffered what has transpired to be a major back injury with important permanent consequences for him, including the loss of his career as a bus-driver.
6. The plaintiff had no previous back injuries or trouble in that area. Immediately after the accident his only symptom was numbness in his left arm. He went to hospital but after several hours waiting for attention in the O. P. W. he went home. Next day he had pain in his shoulders and across his neck. His arm was still numb and he also had pain in his low back. He consulted his G. P., Dr. Cunningham, and was given analgesics. He returned to his doctor a few days later with similar symptoms and also a constant headache which had developed in the meantime. The plaintiff was anxious to return to work. He needed his wages to pay instalments on a new motor car he had purchased only a few days before the accident and also to meet continuing mortgage instalments on his home. It is not in dispute that in the ensuing years the plaintiff has in fact suffered serious pain and discomfort which has been aggravated by bus driving in consequence of which there have been many periods of total disablement when exacerbation of pain compelled the plaintiff to stop work. It is generally accepted that he has always made great efforts to get back to his job as quickly as possible. Everyone agrees that he is a non-complaining trier. His efforts to combat disablement have been courageous and much to his credit. He has done his best to remain at work as a bus driver, but in the end repeated aggravation of severe pain has defeated him and has brought about his compulsory retirement from Bus Eireann in January, 2000 on the direction of the defendant’s chief medical officer, Dr. D’Arcy, on the ground of continuing unfitness for such employment and the absence of alternative non-driving work with the defendant.
7. Following the accident the plaintiff first returned to work after four days but with continuing symptoms as already described. Severe pain compelled him to stop work after three days but he returned again a week later. He soldiered on for most of the following two months. During the remainder of 1997 he lost about twenty eight or thirty days when pain became too severe to handle. He found that pain was getting worse between the shoulder blades. He embarked on a course of physio-therapy but after five or six sessions it was terminated as it was causing too much pain and little relief. On 18th December, 1997 Dr. Cunningham sent the plaintiff to Mr. John Mangan, orthopaedic surgeon. He has continued treating him since then. A subsequent C. T. scan revealed exacerbation by the accident of a probable pre-existing arthritic condition of the thoracic spine which was previously dormant. That condition having been activated, the pain it causes will continue permanently. The plaintiff’s low-back pain resolved eventually. The end result is that the plaintiff continues to suffer pain across the shoulders and in the left arm. He requires analgesics on a daily basis. In 1998 he had a number of periods on and off work. In September, 1998 the situation was getting worse. Mr. Mangan referred the plaintiff to Dr. David O’Flaherty, a specialist anaesthetist and pain management consultant at Portiuncula Hospital. In June, 1999 the plaintiff received an epidural spinal injection. It brought about substantial relief for about three months after which the pain returned when the effect of the injection wore off and he was compelled to stop work again. Subsequently, he received a second epidural injection which had little beneficial effect.
8. In October, 1999 Dr. D’Arcy had come to the conclusion that the plaintiff was not fit to continue on the defendant’s staff as a bus driver. He again tried to find alternative non-driving work for him in the company but without success. In the end the plaintiff was compulsorily retired on 31st January, 2000.
9. The extent of pain across the plaintiff’s shoulders and down the left arm became so severe that Dr. O’Flaherty resorted to a heavy drugs patch course of treatment in January, 2001 which is primarily intended for terminally ill patients suffering from painful cancer or other such condition. In their circumstances the probability is that they would require such alleviation of severe pain in the short or medium term only. That treatment did bring relief to the plaintiff but eventually it ceased to help him as he gradually built up a tolerance of the drug (morphine) involved. At that stage the treatment was discontinued in consequence of which the plaintiff suffered withdrawal symptoms. This entailed weaning him off the patch drug over a period of months through the substitution of another lesser drug. He has now reverted to non-addictive analgesics. Dr. O’Flaherty is satisfied that the plaintiff has chronic pain syndrome arising out of his accident. All doctors on both sides have expressed opinions that the plaintiff is not and never will be fit to continue his permanent employment as a bus driver.
10. The following medical opinions have been expressed in reports and in the case of Mr. Mangan, Dr. Cunningham and Dr. O’Flaherty in evidence also. Mr. McHugh, the surgeon who advised the defendant, is now deceased.
(a) Dr. O’Flaherty described the plaintiffs condition in March, 2000 as follows:-
“Mr. John Mangan, Consultant Orthopaedic Surgeon, … referred Mr. Riley to the Pain Clinic in Portiuncula Hospital in September, 1998. His main complaints at that time were neck and back pain. His pains have continued since his accident in April, 1997. The pains have not significantly improved despite various therapies including epidural injections, non-steriodal anti-inflammatories, anti-epileptic drugs with analgesic properties and the use of transquatanoues electrical nerve stimulation. He was scheduled for a repeat epidural injection in the near future. Mr. Riley’s pain is mainly located in his upper mid-thoracic spine. Mr. Riley describes his neck and back pain as a throbbing, shooting, sharp, stabbing, hot, burning and aching according to the McGill Pain Questionnaire. He assigns it a score of 8 on a visual analogue pain scale where 0 represents no pain and 10 the worst possible pain imaginable.
DISABILITY LEVEL.
In an effort to assess the disability associated with Mr. Riley’s pain complaints I asked him to complete an Owestry Disability Questionnaire. He states that the pain was moderate on the day of examination (07/03/00). With respect to his personal care and hygiene he states that he can look after himself normally but it causes him some extra pain. Pain prevents him from lifting heavy weights up off the floor but he can manage if they are conveniently placed for instance on a table. Pain does not prevent him from walking any distance but prevents him from sitting more than half an hour. Pain prevents him from standing more than one hour and because of his pain he gets less than four continuous hours of sleep at night. He states that his sex life is nearly absent because of pain. Pain has restricted his social life in that he does not go out as often as prior to his accident in 1997. Pain restricts him from travelling journeys of less than one hour.
Mr. Riley would be assigned to a Steinbrocker Functional Classification Class 2 in that his functional capacity is adequate to conduct normal activities despite this handicap of discomfort or limited mobility of one or more joints.
In his examination held on 30th December, 2001 Dr. O’Flaherty made the following findings:-
Lumbo Sacral Spine.
Flexion and extension decreased by 25%. Lateral flexion normal. Very tender over mid and upper Thoracic Vertebral Spine.
Cervical Spine.
Flexion decreased by 50%.
Lateral Rotation to the left decreased by 50%, to the right by 25%. Extension decreased by 25%. The doctors opinion at that time was:-
“Mr. Riley continues to complain of neck and back pain despite therapy and it is now unlikely that his pain symptoms will resolve.”
In the course of his report dated 27th March, 2000 Mr. Mangan stated as follows:-
“INVESTIGATIONS:
An M. R. I. scan of the cervical and thoracic regions of the spine was performed at the Mater Private Hospital on 31st March, 1999 and no gross abnormalities were apparent.
A C. T. scan of the thoracic spine was performed at Portiuncula Hospital in January, 1999 and apparently shows degenerative changes at the facet joints at multiple levels. I have not seen the C. T. scan and a report should be obtained from the radiologist who performed it …
OPINION:
Mr. Riley complains of being injured in a road traffic accident in April, 1997. I think he probably sustained soft tissue injuries to the cervical and thoracic regions of the spine and the lumbar area. There has been no subjective or objective improvement since Mr. Riley was first seen by me. He has now been retired from his work by Bus Eireann on medical grounds. I think he will continue to experience pain from his spine for the future and pain will vary in severity from time to time. He will have to be careful about his spine in the long term. I think his prospects of returning to full-time gainful employment are poor.”
A similar opinion was expressed by Mr. Mangan in his report based on an examination carried out on 7th January, 2002:-
“Mr. Riley complains of being injured in a road traffic accident in April, 1997. I think he probably sustained soft tissue injuries to the cervical and thoracic regions of the spine and also the lumbar area. I think he will continue to experience spinal pain for the future and pain will vary from time to time. He will have to adhere to a regime of care and exercises for his spine. I think his prospects of returning to full time gainful employment are poor.”
Dr. D’Arcy wrote to Dr. Cunningham on 30th September, 1998 as follows:-
“I saw your patient in the Medical Department today and it is hard to consider him being fit in the future as a public service vehicle driver. I am endeavouring to see can management do anything for this man but the chances of alternative employment in a non-driving grade at the moment are practically zero. He is aware that I am making this effort but also is rather pessimistic regarding the outcome.”
The late Mr. McHugh, the defendants surgeon, who commented in an earlier report that “this is an honest man” then expressed the following opinion in his final report dated 15th March, 2000:-
“This man had x-rays and a scan. The x-rays show as I note in the previous report osteophytes at C4-5 and this is causing the trouble with the tendency to lock in his left shoulder and the symptoms in the back of his neck. There is arthritis associated with the joint so that he is likely to continue having problems with it. He also had x-rays and scan of his thoracic spine which showed that he has multiple osteoarthritic changes in the joints of the spine, the facets, and this is a condition that tends to come with age, but it can be initiated by trauma or accentuated, as in his case, by it and it certainly was an aggravating factor if not a causative factor. However, the important thing is he is likely to continue to have symptoms. The epidural injection he had helped a bit but not as much as one would expect. He is having a further scan and probably after that it will be decided whether to continue with the epidural injections or whether any other treatment is indicated. As regards working it wouldn’t be wise for him to be driving, and he has been retired and this is fair enough. He will be limited in the work he could do, he couldn’t do heavy work, and the limitation of his lumbar spine would be a disability and it would have to be very light work that he would get. He is likely to continue to have symptoms.”
Mr. P. V. Pasad, orthopaedic surgeon, who also examined the plaintiff for the defendant stated in his report dated the 24th September, 2001 that the plaintiff complained to him of the following:-
“1. Severe pain between the shoulder blades, radiating up into the neck and the base of the skull.
2. Abnormal sensation in both lower limbs, mainly at night.
3. Pain and numbness in the left arm intermittently if he keeps it on a steering wheel.”
The surgeon expressed the following opinion and prognosis:-
“It is over four years since the accident and Mr. Riley continues to experience significant pain and discomfort in his upper body, mainly between his shoulder blades and shoulders and neck. This appears to be interfering with his ability to manoeuvre a large steering wheel. Hence, in my opinion, he will not be in a position to return to his previous occupation. In view of the duration of the symptoms, I do not expect him to respond 100% to the treatment and he will continue to experience long term minor discomfort permanently. He will not also be in a position to take up any job that involves manual-physical work. He is presently undergoing treatment for pain relief and may benefit to some extent in alleviating his symptoms. He is at risk of developing relapses and may require pain relief treatment as and when such relapses occur for the rest of his life.”
11. Notwithstanding the combined opinions of their own doctors i.e. Dr. D’Arcy, Mr. McHugh and Mr. Pasad, that the plaintiff is unfit to continue in employment as a bus driver, the defendants have rejected their advice and have preferred instead that of a physiotherapist, Ms. Deirdre Cahill. She qualified in 1994, spent six years practising in the State of Florida, primarily in occupational work. She became involved in the activities of an organisation in that State which specialises in assessing work capacity after injury and the encouragement of people back to pre-accident work after trauma. Since her return to Ireland she has set up a company which offers similar services here. Over a period of two days she had sessions with the plaintiff for a total of five hours. The purpose of her examination was to ascertain whether the plaintiff could perform the physical movements necessary for the purpose of driving a bus. She had no information from anyone in Bus Eireann as to what is involved in physical terms in driving such a vehicle and she relied exclusively on the plaintiff’s assessment in that regard. She also had no knowledge of the plaintiff’s work history as a driver from the date of accident in April, 1997, nor had she the benefit of the treating doctors medical reports. She was aware and accepted that the plaintiff was in pain when being assessed by her. She also accepted that the plaintiff was an honest person who did his best to co-operate with her. Ms. Cahill was not aware that the plaintiff could not hold the steering wheel of a bus in both hands without exacerbating pain in his left arm (a situation which arises for him when driving a motor car also) and which causes him to release his left hand from the wheel.
Ms. Cahill’s assessment was simplistic and did not have the benefit of the foregoing crucial background information. As already stated, it was based on her conclusion that the plaintiff could perform, albeit with pain in some instances, all of what she perceived to be physical aspects of his job as a bus driver. On that basis she expressed the opinion that he was fit to take up again permanent employment of that nature. She did not regard it as part of her function to assess the effect of pain being suffered by the plaintiff or to take into account his past work history in almost five years since the accident. Eventually, in the course of her evidence she conceded that these factors should be taken into account and she joined the apparently unanimous medical opinions on both sides that the plaintiff should not return to his pre-accident work and that he is unfit to be a bus-driver or to engage in heavy manual work.
12. It then transpired that Ms. Cahill’s assessment with all its obvious faults had effected a “Road to Damascus” volte face in the opinion of Mr. Pasad as expressed in his report to which I have referred. Remarkably, he contended in evidence that even though Ms. Cahill had resiled from her opinion, he regarded the physical tests carried out by her as indicating that, contrary to his earlier opinion, the plaintiff is in fact fit to resume his career as a bus driver. He persisted in that extraordinary view notwithstanding that he could offer no tenable explanation for his apparent belief that a radical improvement in the plaintiff’s work record could be expected by comparison with his work history, including his efforts as a computer student, for circa 5 years since the accident.
I reject Mr. Pasad’s testamentary volte face. I also reject Ms. Cahill’s assessment of the plaintiff’s working capacity. I have no hesitation whatever in accepting the combined opinions of Mr. Mangan, Dr. O’Flaherty, Dr. Cunningham, Dr. D’Arcy and the late Mr. McHugh that the plaintiff is no longer fit for permanent employment as a bus driver or any job involving heavy manual work. The medical evidence also establishes that the plaintiff will always have difficulty in sitting for lengthy periods and this is likely to be a problem for him in connection with employment in the I. T. industry for which he is presently in training.
13. The plaintiff with commendable dedication has set about establishing himself in a new working career in computers. He has completed a second stage N.T.D.I. (now Fás) course in which he achieved first place. He then moved on to a third phase one year course in computer technology which he has carried out at home under occasional professional supervision. The course is structured on the basis that the student will devote six hours per day to a programme of work on his computer. The plaintiff has found that he is unable to sit at his screen for that length of time each day because it causes too much pain across his shoulders and down his left arm. However, on the plus side his skills are such that he can achieve the intended results in three or four hours per day and he can manage that length of time at the computer. The course is almost completed and he is about to sit examinations next month. He has already obtained first place in one of the modules. If he passes the exam, which seems highly likely, he will then have eleven weeks work experience. The plaintiff is keen on computer technology and would like to move into third level training in I. T. at Galway R. T. C. There is a two year full-time Certificate course followed by a one year Diploma course at the R. T. C. Ms. Patricia Coughlan, vocational rehabilitation consultant, gave evidence that although the plaintiff has shown remarkable computer aptitude, at the R. T. C. the courses are at a much higher level than he has encountered so far and, having the benefit of primary education only, he may not be able to make the transition between basic computer learning and in depth computer study which includes related topics such as statistics etc. Only experience will establish whether the plaintiff will be successful in making the transition to third level training and education. However, there is a preliminary course at the R. T. C. for one year which is designed with people like the plaintiff in mind who have late I. T. vocations and minimal educational backgrounds. It provides a bridge between basic computer courses and serious Third Level courses. It is thought that the plaintiff would be able to obtain a place in such a course which is an important preliminary step in his particular circumstances. The end result is that he faces, at best, a period of four years study at Galway R. T. C. at age 42 years which may transpire to be more than he can handle despite his undoubted determination to succeed. Having regard to his computer performance up to now, it seems clear that it is in his best interest to embark on the proposed academic career which, if successful, is likely to open the way to worthwhile employment and job satisfaction in an area which he enjoys.
However, in assessing general damages it is proper to take into account the significant risk that the plaintiff will not be able to manage Third Level computer education and in the end will have to seek one of the lesser jobs at modest wages referred to by Ms. Coughlan in evidence. The plaintiff’s situation is analogous to that which arises where the relevant spectrum of a claimant’s working capacity has been significantly reduced by personal injury. As such a person is entitled to damages in that regard, so too is the plaintiff and that point is accepted by Mr. Robins for the defendants.
Another factor referred to by Ms. Coughlan which it is proper to bear in mind in assessment of damages is that at best the plaintiff will be competing with young, skilled personnel in the I. T. labour market. Furthermore, his chronic pain syndrome militates against him in terms of his capacity to work a full day and that may significantly reduce his employability.
14. As to future earnings as a computer specialist; Ms. Coughlan estimates that at the end of his educational course of 4 years the plaintiff might reasonably expect to earn between £12,000.00 and £14,000.00 gross per annum calculated in old money. This assessment seems to be based on existing wage levels. It is probably more realistic to anticipate net earnings of £16,000.00 in September, 2006 by comparison with a probable £26,000.00 net per annum then as a bus driver i.e. a differential of £10,000.00 net per annum in old money.
DAMAGES.
Amounts for loss of earnings are not in dispute and are based on probable average net earnings as a bus driver whose roster includes Sunday working. As the plaintiff would have been entitled to take that course to suit his particular domestic arrangements as his wife’s job includes Sunday working. Appropriate deductions have been taken into account in the agreed figures furnished to me by the actuary.
I assess damages in old money as follows:-
Agreed special damages…………………………………… £1,821.00
Net loss of earnings up to 1st September, 2002…… £77,752.00
Four years net loss of earnings during educational
training from 1st September, 2002……………………….. £89,256.00
Net loss of earning capacity as between bus and likely computer earnings up to age 65 taking into
account Reddy v Bates…………………………………….. £120,000.00
Compensation for risk factor (i.e. risk of failure) entailed in
Third Level education …………………………………….. £50,000.00.
Agreed net loss of pension entitlement………………. £24,616.00.
General Damages for
(i) pain, suffering and disablement to date……………… £50,000.00
(ii) pain, suffering and disablement in the future………. £100,000.00
Total …………………………………………………………….. £513,445.00
= €651,940.00
Kenny v Crowley
Supreme Court, 21 June 2006Judgment delivered the 21st day of June 2006 by Denham J.
1. Appeal
This appeal relates to an assessment of damages. James Kenny, the plaintiff/appellant, hereinafter referred to as the plaintiff, submitted that the High Court erred in the assessment. Liability is not an issue.
2. Collision
The case arose out of a collision with cattle. The plaintiff was driving his car on the evening of 10th April, 2000, at Rathlee, Easkey, Co. Sligo, when his car collided with cattle, owned by John Cowley, the defendant/respondent, hereinafter referred to as the defendant, which had strayed and blocked the highway.
3. Special Damages
The matter came before the High Court on the 16th and 20th July, 2004. Special damages were agreed at €4,480.
4. General Damages
At issue in the High Court were general damages, a claim arising out of physical injuries and a claim for loss of earnings in the future. No claim was made for loss of earnings to the date of the High Court hearing.
5. High Court judgment
The High Court stated that the plaintiff had a perfectly genuine claim against the defendant for his injuries sustained in the accident. The learned High Court judge expressed concern in relation to a claim for €550,000 for loss of employment into the future in view of the employment history of the plaintiff prior to the accident. The High Court stated, quite correctly in my view, that the plaintiff was to be treated under the “eggshell” rule. The learned High Court judge accepted that the plaintiff suffered pain in the past and would in the future. It was noted that the plaintiff made no claim for loss of wages in the past. The High Court agreed that there was an entitlement for loss of wages in the future based on evidence, which, however, the learned High Court judge considered was not good enough and he did not allow for loss of wages in the future. As to general damages, for the injuries sustained to date and into the future, the High Court allowed a sum of €90,000. Special damages being agreed at €4,480, there was a judgment for €94,480.
6. Grounds of appeal
Against that judgment the plaintiff has appealed to this Court. Ten grounds of appeal were filed, as set out below:
(a) The learned Trial Judge failed to have proper regard to the evidence adduced by and on behalf of the plaintiff in respect of his injuries and losses.
(b) The learned Trial Judge erred in fact and in law in assessing general damages for the past and the future in the amount of €90,000.00 given the uncontroverted evidence of the effects of the serious injuries on the plaintiff.
(c) The learned Trial Judge erred in fact and in law in rejecting the plaintiff’s claim for:
(i) loss of future income for the plaintiff and or in the alternative;
(ii) loss of opportunity in the future for the plaintiff.
(d) The learned Trial Judge was wrong in law in refusing to apportion the award of general damages into categories for general damages to date and general damages into the future.
(e) The learned Trial Judge did not give the plaintiff a fair trial on any of the relevant issues before the Court.
(f) The learned Trial Judge erred in law and in fact when referring in his judgment to a claim of the plaintiff for €550,000.00 and in his determination that “the plaintiff has chosen to hoodwink” the Court.
(g) The learned Trial Judge erred in law and in fact in rejecting the evidence of the Vocational Assessment witness Consultant and in his assessment of her evidence.
(h) The learned Trial Judge erred in law and in fact in his judgment in finding and referring to the possibility that “this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff” when there was no evidence or suggestion by the defendant or by the plaintiff to the learned Trial Judge of same.
(i) The learned Trial Judge erred in his treatment of and the weight which he attached to the questions of Senior Counsel for the Defendant in cross-examination of the plaintiff and particularly when the defendant failed to call the witnesses purportedly available to the Defendant to support the allegations of Senior Counsel for the defendant in cross-examination.
(j) The learned Trial Judge erred in law and in the exercise of his discretion when disallowing the costs of the second day of the trial and the expense of a witness and proposed witness for the Trial particularly when:
(i) the trial only commenced at 2 p.m. on Friday the 16th of July 2004 through no fault of the plaintiff.
(ii) the trial was interrupted by the learned Trial Judge for approximately ten minutes on Friday the 16th July 2004 in order to ensure that the parties agreed a timescale for the adducing of evidence from the Vocational Assessment consultant,
(iii) the trial ended at 2 p.m. on Tuesday the 20th July 2004 when Junior Counsel for the defendant without any advance warning indicated that no evidence would be called on behalf of the defendant.
7. Issues
7.1 Special Damages
There is no issue as to the special damages in this case; they remain at the figure of €4,480.
7.2 General Damages
The issue for the Court is one of general damages. The general damages relate essentially to loss and damage arising from the injury to his eye and loss of earnings into the future.
7.3 Damage to eye
First I shall consider the issue relating to the damage to the plaintiff’s right eye. As the learned trial judge stated, the plaintiff has to be treated under the eggshell principle. This arises because of the previous problems with his left eye. Prior to the accident the plaintiff had a lazy left eye and he depended on his right eye. His right eye was damaged consequent on the accident, and he has now very limited sight in it. In addition he has double vision which affects his left eye and gives him dizziness. He uses a blank darkened lens to cover his right eye as this cuts down on the double vision and dizziness. He is now dependent on the left eye. However, the sight in this eye is not good.
The uncontroverted medical evidence before the High Court was that:
“This patient has a background of high myopia or shortsight and a lazy left eye (amblyopia i.e. impaired sight). He sustained a whiplash injury which was followed two days later by a retinal detachment in the right which required surgical repair. He has been left with impaired vision in the right and existing impaired vision in the left. He has a constant large right upward deviation of the eye, resulting in constant doublevision and an unsightly appearance.
He reports being able to function as a mechanic prior to the accident but now his vision is poor in both eyes and he has doublevision in them as well and both of these factors impair his ability to work, so he has become unemployed and cannot drive.
The injury itself did not directly cause the retinal detachment but did so indirectly by the whiplash injury causing severe shaking of the head and disturbance of the vitreous jelly in the right eye leading to a tear in the retina. The patient was already at risk from retinal tears because of his high myopia but probably would not have developed a retinal detachment if he had not sustained a whiplash injury. The doublevision is partly due to his impaired sight and pre-existing lazy eye. However, the restriction of movement of the right eye and the drifting upwards of this eye is also a well-known complication of retinal detachment surgery. I did not have the opportunity to assist this man’s motility prior to his retinal detachment or his injury, so I cannot describe the relative contributions of the various factors involved in this. At any rate, all of the factors involved are related directly or indirectly to his injury.
He is now developing a cataract in the right eye, which will further impair his vision in this eye increasingly over the next couple of years.
I do not believe the vision in his previously lazy left eye will improve spontaneously because the impairment of vision in the right eye is not sufficiently severe to allow the left eye to take over.
This patient has severe visual impairment in his previously better eye (the right eye) as a result of retinal detachment following a whiplash injury. In addition to impaired vision in each eye, he has debilitating and constant doublevision. This has prevented him from working or driving. It is a constant source of difficulty for him in everyday life. Closing one eye to get rid of the doublevision further impairs his overall vision by effectively making him one-eyed. The better of the two eyes has poor vision of a level no better than 6/12, which would be barely acceptable for driving, if it were present in both eyes. The outlook for visual rehabilitation is poor. Vision in the right eye will not improve further in my view and that in the left is unlikely to do so either. His doublevision may be amenable to surgical correction but it may require several operations and there is approximately a 50-60% chance of him achieving single vision with or without the use of additional prisms in his glasses.
The reason for this poor success rate is that eye muscle problems developing after retinal detachment surgery are notoriously difficult to solve and the fact that his vision is poor in both eyes mitigates against him achieving binocular vision, which requires good visual acuity in each eye.
. . . “.
Thus the plaintiff is essentially in the position where an eye has been lost, and he is relying on the vision of an eye with poor sight, and he suffers from double vision.
As to the current value of a case where an eye is lost, I sought to refer to the P.I.A.B. Valuation Book. However, I understand that it does not quantify damages for the loss of an eye, as yet. From previous experience with such cases it appears to me that a figure of €90,000 is significantly too low a figure for such damage and loss, especially in the circumstances of the plaintiff.
In addition, the plaintiff suffered other less serious injuries which should be considered. These injuries were soft tissue injuries to his back and neck and a depression which followed the events.
Consequently, considering both the eye and other injuries I am satisfied that there was an error in the level of damages awarded by the High Court.
7.4 Future loss of earnings
The second major issue is the value of the loss of the plaintiff’s future earnings. In the High Court counsel for the defendant objected to an actuarially based claim.
The learned High Court judge held that on the authority of Reddy v. Bates [1983] I.R. 141 that the basis for mounting an actuarial claim had not been made out and he deemed the defendant’s objection sustained. It was directed that Mr. Logan not be called to give evidence. The learned High Court judge stated that this did not mean that there was not a claim into the future, but he held it would not be on actuarial evidence.
I would affirm this decision of the High Court. There was no grounds laid for an actuarial approach to the assessment.
The position as to loss of earnings in the future has to be considered in all the circumstances of the case. It was stated by the plaintiff that following serious problems with his kidneys in 1995/1996 he had largely ceased to work and only ‘tipped around’ mending engines locally for friends for which he received occasional payment. The evidence was that for three or four years prior to the accident the plaintiff was in receipt of unemployment benefit. However, it was the plaintiff’s case that, in 1999 he had taken all the necessary steps to fit out a workshop and commence the business of marine engine servicing and repair with assistance from his father-in-law and a loan from a local bank.
On behalf of the defendant it was submitted that the plaintiff did not work before the accident and was now doing as much work on engines as he did before the accident.
The evidence established that the plaintiff was not a trained mechanic. Thus a figure of €573,300, based as it was on a trained person’s work, bears no relationship to the situation. The Assessor’s Report of Ann Doherty concluded:
“Save for the accident he could now be working on servicing different engines. Seasonally there are good opportunities for service/repair of marine engines. It is difficult to give a precise level of earnings. The minimum hourly rate if €7.00 and the minimum rate for a mechanic is €15.50 per hour. If working on boats the rates are substantially higher.”
It was on foot of such a conclusion that the figure of €573,300 was promulgated
In her report Ms. Doherty noted that the plaintiff finished formal education with his Group Certificate. She gives his employment history, 1986 – 1991, as part-time fishing with his father, and 1990 – 1991 as ‘Carthys Road and WaterWorks’. It is important to note that she did not state that he was a mechanic. Rather the report recites:
“Over the years he had a keen interest in engines, marine and cars, and gained experience with his cousin. His father-in-law had given him a workshop to start up his own business, repairing engines. He had bought tools and equipment. In 1999 he joined the Coast and Cliff Rescue and was advised he would be sent on courses to deal with boat mechanics etc. He is also paid for call outs”.
In evidence she stated it was not necessary to have a certification as a mechanic to do the work envisaged, that there would be good seasonal business – on the recreational side and for the fishing. She gave evidence that the loss of the right eye, the loss of the eye on the dominant side, would decrease his field of vision and affect his manual dexterity, which would affect him in areas of work. As to work in general in the Killala area, she was of the opinion that his chances were not great. She was of the opinion that with the loss in his right eye, and his difficulties with the left eye, and his geographic location, the effects of the accident were catastrophic, that his chances of getting work were very poor. However, this evidence has to be viewed in the circumstances that he had not been working for years prior to the accident, largely owing to unrelated illness.
Thus, the analysis of loss and damage as regards future earnings is hampered by the previous history, lack of precise information as to his work, the fact that he was ill for several years and off work, the fact that he was receiving State benefit prior to the accident, and the unhelpful evidence as to a mechanic’s earning power which bore no relation to the plaintiff’s situation.
The picture painted is of a man who has not been working consistently, who planned to establish a business but of which there was no evidence, a man who because of illness has been receiving State benefits, but who did do some bit of work, variously described – such as ‘tipping around’. Altogether it was not evidence which established a consistent work pattern of regular paid work. There was evidence that the plaintiff did the odd job before the accident. It may be that he did very few jobs. The evidence was that ‘he did lots of tipping around’, ‘he did the odd job’. The evidence was not such as would base an actuarial report. Consequently, as stated previously, I am satisfied that the learned trial judge was correct in holding that a basis for mounting an actuarial claim had not been made out. The learned trial judge pointed out, correctly in my view, that this did not mean that there was not a claim into the future. Thus, it is necessary, on the evidence before the Court, to consider this aspect of the claim.
While the plaintiff gave evidence of taking initial steps to set up a business, there was no evidence of it being established. I am satisfied that the evidence showed that the plaintiff did some sporadic work which paid him irregular sums of money.
7.5 Hoodwinked
The High Court stated that the plaintiff had chosen to hoodwink the Court with a claim for loss of earnings into the future of €550,000. However, on reading all the evidence, I am satisfied that the plaintiff’s evidence did not advance such a claim. The figure arose from an assessor’s report which was partly based on incorrect information – that the plaintiff was a mechanic.
This concern by the High Court, that it was being hoodwinked, highlights the need for care by legal advisers of a plaintiff in preparation of a case. The law as to exaggerated claims is a matter which should be addressed at the preparation stage by legal advisers with a plaintiff. I am not satisfied that there was any collusion by the plaintiff so as to make an exaggerated claim. While there was absolutely no basis for a claim for €550,000, or indeed any significant sum of money for loss of future earnings, in the circumstances of the case that figure should not be a basis either to award the plaintiff or to penalize him. I am satisfied that this is not a concocted claim, a fraudulent claim. Nor is it a case where the injuries were exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. Nor is it a case where the plaintiff has deliberately exaggerated his injuries. Thus the decision of Shelley-Morris v. Bus Atha Cliath/Dublin Bus [2003] 1 IR 232 does not apply.
The evidence prepared as to future loss of earnings bore little relationship to the position of the plaintiff. However, from the evidence of the plaintiff, I do not believe he was seeking to establish a fraudulent claim. Problems arose from the preparation of the evidence for the trial. In view of the developing law on the issue of exaggerated claims it behoves legal advisers to address such issues, for, amongst other results, an unrealistic approach to expert evidence which is not relevant could give rise to an entire claim being deemed fraudulent. However, in all the circumstances, it is clear that this is not such a case.
7.6 Settled
On behalf of the plaintiff it was submitted that the High Court erred in finding that this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff. I am satisfied that this was not the situation. Even if it had been, which it was not, it would not have been a factor detrimental to the plaintiff’s claim. The facts were that the case commenced on Friday the 16th and, the evidence not having been completed, it resumed on Tuesday 20th. There were no grounds to indicate that there were any matters relating to a settlement on Friday in which the plaintiff had not taken a reasonable approach.
7.7 Taxation
It may be that there is an issue of taxation on the little work the plaintiff did over the years prior to the accident. This does not necessarily mean that such sums may not be considered by a court on an assessment: Downing v. O’Flynn [2000] 4 IR 383. In the circumstances of this case it is not a relevant factor.
8. Decision
8.1 For the reasons given I am satisfied that the award of €90,000 for general damages was an error. The sum was inadequate for injuries alone, the injuries being primarily the loss of a right eye, the necessity of relying henceforth on an impaired left eye, double vision, soft tissue injuries and depression. It appears to me that a figure of €120,000 would be more appropriate in all the circumstances of the case.
8.2 There was no claim for loss of earnings in the past, and there was no basis for an actuarial based claim for the future. While the plaintiff had a genuine claim there was very little evidence to rely upon. The plaintiff has been on social welfare payments for the past few years. The evidence established he did a little work ‘tipping around’. In the circumstances I am satisfied that the plaintiff is entitled to a limited sum on foot of this loss, which I would determine as €40,000.
8.3 The issue of costs of the High Court should be addressed with the matter of the costs of this appeal, after delivery of the judgment.
9. Conclusion
For the reasons given I would allow the appeal, and in place of the award of the High Court make a total award to the plaintiff in the amount of €164,480.
Kerr v Molloy
[2006] I.E.H.C. 364
JUDGMENT of Mr. Justice Herbert delivered on the 16th November 2006.
The onus lies on the Plaintiff to prove his case on the balance of probabilities. The only account of the alleged incident is that given by the Plaintiff himself. The Plaintiff gave evidence that Mr. Peter O’Donoghue, formerly Assistant Operations Manager of the first named Defendant, participated in the activity which the Plaintiff claims led to his injury and, witnessed the injury occurring. Mr. O’Donoghue, who impressed me as a truthful and careful witness, stated in evidence that he was not denying that the alleged incident had occurred but was surprised that he had no recollection of an incident involving twelve to fifteen heavy boxes falling at the same time, something which he considered to be most unusual.
Mr. O’Donoghue told the court that these twenty to thirty kg. cardboard boxes of beef were blast frozen until they were as hard as wood. However, he said, that in the course of being moved from the cold stores at the first named Defendant’s Plant to the transport containers they often became wet and slippery because of the change in temperature and it was not uncommon for individual boxes to slip and fall. Mr. O’Donoghue agreed with the expert opinion of Mr. Frank Abbott the well known Consulting Engineer who gave evidence in the Plaintiff’s case, that these boxes would have fallen, – if in fact they fell, – vertically from a height of five and a half to six feet, with an impact force of sixty kg. Mr. O’Donoghue gave evidence that his principal and, very important duty, was to check in and out of the Plant the hundreds of loads of Intervention Beef processed by the Plant each week.
Mr. Damien Hannaway, a fork-lift driver, formerly employed by the first named Defendant, told the court that the Plant had eight loading bays. He corroborated the evidence of the Plaintiff that pallet loads of boxes were transferred from the cold stores to these loading bays by employees of the first named Defendant and, thereafter were moved by the employees of the second named Defendant, including the Plaintiff, from the loading bay into the containers. Mr. Peter O’Donoghue accepted that on many occasions he had assisted the Plaintiff in stacking these individual boxes in containers.
There was no dispute that the dimensions of these boxes were on average twenty four inches long by sixteen inches wide by eight inches high. Mr. O’Donoghue confirmed the evidence of the Plaintiff that these boxes were stacked five flat and one on edge up to a height of about five and a half to six feet in the containers. He agreed with the evidence given by the Plaintiff that the correct method of stacking these boxes was to alternate the side at which the single box was placed on edge so as to provide cohesion and stability by ensuring that the vertical spaces between the individual boxes were staggered and not in line. Mr. O’Donoghue accepted in cross examination that he had not received any instruction from the first named Defendant in carrying out this task, but he said that he had learned the proper method of stacking the boxes through working with experienced packers.
Mr. O’Donoghue told the court that while he felt that he would have always adhered to this method of stacking the boxes in a container, he was not insisting that the Plaintiff was wrong, when he said that on 18th March 1999, the last three rows of boxes to be stacked had been stacked without the vertical spaces between the individual boxes being staggered. The Plaintiff gave evidence that when he noticed that this was not happening he had warned Mr. O’Donoghue of the danger involved. He said that as Mr. O’Donoghue, whom he regarded as the person in charge in the absence of his own supervisor from the second named Defendant, – Mr. Denis Daly, – did not change the order of stacking, he felt that he had no option but to continue on with the work. The court was told that Mr. Denis Daly had left the employment of the second named Defendant and was not available to give evidence.
By order of this court (Mr. Justice Peart) made the 2nd day of December 2002, Judgment in default of Appearance was entered against the second named Defendant.
The Plaintiff told the court that he was standing with Mr. O’Donoghue between the pallet of boxes and the row of boxes which they were stacking in the back of the container. He said that the pallet of boxes was positioned about four feet away from this row. They had already filled about thirty feet of a container, forty feet in length, with rows of boxes. He said that Mr. O’Donoghue was lifting a box onto the top of the row which was at a level of about five and a half to six feet. He himself was bending down to lift one of the last boxes remaining on the pallet. He said that his knees were bent and his upper body was turned away from the row of stacked boxes. Mr. O’Donoghue suddenly shouted, “get out, get out”. However, before he could react boxes came tumbling down from the last three rows they had built and one of the boxes struck him on the area of his right big toe. Mr. O’Donoghue told the court that he always wore steel-capped work boots and, that the first named Defendant insisted that all of its employees wore protective foot wear. The Plaintiff was not asked in evidence about what footwear he was wearing. In Replies to Particulars, he had initially stated the he was wearing steel-capped boots, but this was subsequently amended to state that he was wearing ordinary boots or work shoes. Mr. O’Donoghue told the court that he had no recollection of any such incident, or of the Plaintiff suffering an injury to his right foot, but he was not prepared to state emphatically that the events described by the Plaintiff did not occur, even though he was surprised that listening to the Plaintiff’s evidence had not jogged his memory in any way.
In cross examination Mr. O’Donoghue told the court that he had left the employment of the first named Defendant about five years ago. He agreed with Mr. Abbott that the boxes in falling could have brushed past the Plaintiff without injuring him but that the Plaintiff’s feet would be particularly exposed to being struck by the falling boxes.
The medical reports, admitted into evidence disclose that the Plaintiff suffered a crack fracture of the neck of the proximal phalanx of his right big toe without displacement. I find that this injury is consistent with the sort of incident described as having occurred by the Plaintiff. It was put to the Plaintiff in cross examination by Senior Counsel for the first named Defendant that he had dropped the box which he was lifting from the pallet on his toe. The Plaintiff denied this and, no evidence of any sort was led in support of this suggestion. Mr. Francis Bannigan, the then and present Operations Manager of the first named Defendant gave evidence that the first named Defendant in compliance with Law maintained an Accident Report Book. This Accident Report Book was not produced in evidence, but Mr. Bannigan told the court that there was no entry in that Book of an incident such as that described by the Plaintiff or, of any injury having occurred to the Plaintiff, thought it was company policy, in order to comply with the Law, that either he or Mr. O’Donoghue should enter any such incidents in the Book, whether or not they resulted in an injury to someone. He told the court the first time he became aware of the Plaintiff having suffered an injury on 18th March 1999, was when the first named Defendant received a letter dated 22nd January, 2002, from a firm of Solicitors making a claim on behalf of the Plaintiff.
The Plaintiff told the court that after the impact he had gone to a coldwater tap in the yard of the Plant and soaked his foot for a considerable time because it was very sore and starting to swell. When his Supervisor with the second named Defendant – Mr. Denis Daly,- arrived in the yard of the first named Defendant’s Plant at about 3.30 pm, he had told him about the incident and the injury to his foot. The Plaintiff told the court that he had continued to work that afternoon driving a fork-lift truck. The Plaintiff was subjected to a very comprehensive, though scrupulously fair cross examination by Senior Counsel for the first named Defendant. So far as his account of the events which he states occurred on 18th March 1999, is concerned, I find that he did not deviate in any way from the account given in examination in chief, nor was his evidence inconsistent, improbable or exaggerated. I find, on the balance of probabilities, that the events described by the Plaintiff as having occurred on 18th March 1999, did occur. Senior Counsel for the first named Defendant very correctly accepted that if the events described by the Plaintiff had occurred, that was sufficient to establish a breach of the duty of care owed by the first named Defendant to him and, also a breach of statutory duty on the part of the first named Defendant.
In its defence, the first named Defendant pleads that the Plaintiff was guilty of negligence and additionally or alternatively of contributory negligence in that he:-
“(a) Failed to take any or any adequate care for his own safety.
(b) Caused or permitted the box of meat to fall on his foot.
(c) Failed to wear protective foot wear.
(d) Failed to pay any or any adequate attention to the task being performed.
(e) Failed to bring the skill, care and experience which could reasonably be expected of him to bear on his work.”
At the hearing of this action, the claim of contributory negligence on the part of the Plaintiff was advanced on a single ground, that the Plaintiff had more experience in stacking these boxes in containers than Mr. O’Donoghue, so that, even though Mr. O’Donoghue was Assistant Operations Manager of the first named Defendant and, the Plaintiff a contract packer provided by the second named Defendant, the Plaintiff ought to have refused to continue with the work when Mr. O’Donoghue, for whatever reason, continued to build up the row of boxes without staggering the vertical spaces between the individual boxes. I find that the evidence did not support the contention that Mr. O’Donoghue had less experience in this work than the Plaintiff, so that he should be regarded as the helper and the Plaintiff found to be the person in charge of the operation. Mr. O’Donoghue’s own evidence clearly demonstrated that he had ample knowledge and very considerable experience of stacking these boxes in containers. In cross examination Mr. O’Donoghue accepted that he would not expect the Plaintiff to challenge him on any aspect of the job. The Plaintiff protested that having pointed out to Mr. O’Donoghue the possible danger involved in stacking the boxes in the manner in which he was doing it, he could hardly be expected to leave the job and go across to the office and complain to Mr. Bannigan, the Operations Manager. I find that it would be wholly unreasonable to expect the Plaintiff to do this. His own supervisor from the second named Defendant, Mr. Denis Daly, did not come to the Plant until an hour or more after the incident had occurred.
I find, applying the principles stated by Ó Dálaigh C.J., in Kennedy v. East Cork Foods [1973] I.R. 244 at 249, that his continuing with the work in the circumstances did not, “enter into the realm of downright carelessness”. In the Plenary Summons and in the Statement of Claim, the Plaintiff pleads his case both in negligence at common law and for breach of statutory duty pursuant to the provisions of the Safety, Health and Welfare at Work Act, 1989 and, in particular s. 6 and the Fifth Schedule of that Act. I find that the Plaintiff was not guilty of contributory negligence in relation to his claim based upon breach of statutory duty and is therefore entitled to succeed in full against the first named Defendant. It is unnecessary for the court in these circumstances to go on to consider the position in relation to his alternative claim based upon negligence at common law.
In the course of his cross examination of the Plaintiff, I find that Senior Counsel for the first named Defendant established the following facts:-
“That the Plaintiff despite the incident had completed his days work on 18th March 1999 by driving a fork-lift truck and had worked at packing every day thereafter on which work was available to him at the Plant, – by its nature the work is not continuous, – up and including 30th April 1999.
On the evening of 30th April 1999, the Plaintiff was asked by Mr. Bannigan to do some extra packing. The Plaintiff refused and was very abusive to Mr. Bannigan. The following day Mr. Bannigan informed the Plaintiff’s supervisor from the second named Defendant, – Mr. Denis Daly, – that the Plaintiff would not be allowed to work again at the first named Defendant’s Plant.
The Plaintiff had not sought to be reconciled with Mr. Bannigan, was drawing unemployment assistance but was not receiving Disability Benefit, and there was no evidence of any attempts on the part of the Plaintiff to obtain alternative employment since 30th April 1999. The Plaintiff was aged forty one years of age on the date of the incident and his normal working life would be to age sixty or sixty five.
The first letter from his Solicitors making this claim on his behalf was dated 22nd January 2002, – just three days inside the Statutory time limit.
Apart from three visits to Dr. Michael O’Gorman, on 24th March 1999, 13th November 2001, and 4th December 2001, and his attendance at Monaghan General Hospital for x-rays on referral by Dr. O’Gorman, the Plaintiff had not attended any Physician or Surgeon in relation to the injury to his right foot, other than Mr. Michael A. Moloney, who examined him on behalf of the first named Defendant on 25th May 2002.
Other than a course of Difene 50 mg. anti-inflammatory capsules prescribed by Dr. O’Gorman on 24th March 1999, the Plaintiff was otherwise self medicated using ordinary non-prescription analgesics on occasions.”
In cross examination, the Plaintiff told the court that he had, “battled on even though he was in awful pain”, up to 30th April 1999. Mr. Bannigan was putting pressure on him to do more work and he was not able for it, because of pain and swelling in his right foot. His evidence was not at all clear that he had explained this to Mr Bannigan. Mr Bannigan told the court and I accept his evidence, that he had only became aware of the Plaintiff’s claim that he had hurt his foot on 18th March, 1999 when the Solicitor’s letter of 22nd January 2002, was received by the first named Defendant. His recollection of the incident on 30th April 1999, was that he had asked the Plaintiff at about 5.00 pm in the evening to pallet some additional boxes. The Plaintiff responded that he had done enough for that day. Mr. Bannigan insisted that he carry out the work, at which point the Plaintiff became very agitated, had verbally abused him and had refused to do the work. Senior Counsel for the first named Defendant put it to the Plaintiff that it was the fact that he felt he was being pressurised by Mr. Bannigan which had led to this incident. The Plaintiff replied that it had been a very long day and his foot was terribly sore and he simply could do no more work. I find it impossible to accept, that if the Plaintiff had told Mr. Bannigan that a box had fallen on his foot earlier that afternoon and his foot was very sore and swollen, that Mr. Bannigan would have insisted that he continue to work. Even if not moved by humanitarian considerations, he would have had to be extremely conscious of the possibility of further injury to the Plaintiff or caused by the Plaintiff and the likelihood of consequent legal claims.
In a Medical Report, dated 1st June 2002, admitted into evidence, Mr. Michael A. Moloney, M.Ch., F.R.C.S., who examined the Plaintiff on behalf of the first named Defendant on 25th May 2002, makes the following observations:-
“It proved a very difficult matter to extract reliable information from him”, – (as to the Plaintiff’s pervious medical history).
“He states that his Right Big Toe becomes swollen and sore when he walks on it or stands for a long time. He refuses to state how far he could walk, or whether he could run or not.”
When this observation was put to the Plaintiff in cross examination he insisted that he had told Mr. Moloney that he could walk, but with some pain, a mile and a half to a local shop. As Mr. Moloney did not give evidence, I propose to give the benefit of the doubt on this matter to the Plaintiff, as I found it difficult at times during the course of the hearing to fully grasp on a single narration all that the Plaintiff was saying. Also, in his Medical Report dated 2nd December 2005, Dr. O’Gorman reports that the Plaintiff had told him that his right big toe continued to pain him when walking over one mile.
“I attempted to find out whether he could stand on tiptoe, or squat, with his heels of the ground and he refused to co-operate in this.”
When this was put to the Plaintiff in cross examination he insisted that he had done all that Mr. Moloney had asked of him. I am unable to accept this recollection of the Plaintiff. These were important physical tests, which the surgeon, very correctly wished to carry out in order to enable him to assess the extent and possible impact of the injury indicated by the x-ray plates. No issue can possibly arise here of Mr. Moloney perhaps not picking up all that the Plaintiff said to him, – however remote that might be. Senior Counsel for the first named Defendant put to the Plaintiff that he had refused to co-operate in this matter because he wished to disguise from Mr. Moloney the fact that he had made a full and complete recovery and there was no medical reason why he should not be back at work. The Plaintiff replied that he was not fit for work. Senior Counsel for the first named Defendant put to the Plaintiff that all the Medical Reports demonstrated that this was not so. The Plaintiff, however, insisted that he was not fit for work since the incident.
Senior Counsel for the first named Defendant, then very carefully read the provisions of s. 26 of the Civil Liability and Courts Act, 2004, to the Plaintiff. I then adjourned the court for some time to enable Senior Counsel for the Plaintiff to explain to him the meaning and effect of this section in plain ordinary terms. When the court resumed, Senior Counsel for the first named Defendant asked the Plaintiff if there was any evidence which he wished to change and the Plaintiff replied in the negative. Senior Counsel for the first named Defendant then asked the Plaintiff if he had made a full recovery and again the Plaintiff responded in the negative. Senior Counsel for the first named Defendant then put to the Plaintiff that he was fit to work and had in fact returned to work on 25th March 1999. The Plaintiff again stated that he was not fit for work.
Four Medical Reports were, by agreement of the parties, admitted into evidence: those from Dr. O’Gorman dated 6th March 2002, 3rd November 2005, and 2nd December 2005, and, one from Mr. Moloney dated 1st June 2002.
In his report dated 6th March 2002, Dr. O’Gorman reports that he first saw the Plaintiff on 24th March 1999, (six days after the incident). On examination on that occasion the Plaintiff’s right foot was swollen and inflamed, – worse over the right big toe and metatarsal arch. He prescribed anti-inflammatory capsules, – Difene 50mg. An x-ray report of 30th March 1999, showed a fracture at the neck of the proximal phalanx of the right big toe. Dr. O’Gorman records that he next saw the Plaintiff on 13th November 2001, when he complained of swelling of the metatarsal phalangeal joint of the right big toe. He records that the Plaintiff had told him that he had intermittent pain and swelling since the incident. Dr. O’Gorman records that the Plaintiff was not seen by him in the interval. Senior Counsel for the first named Defendant put to the Plaintiff what Dr. O’Gorman records, but the Plaintiff insisted that he had told Dr. O’Gorman that he had constant pain in his right big toe area since 18th March 1999. As Dr. O’Gorman was the Plaintiff’s own treating physician and his reports were proffered in evidence as the sole medical evidence on behalf of the Plaintiff, I must decline to accept this recollection of the Plaintiff.
Dr. O’Gorman in his Medical Report of 6th March 2002, goes on to record that he had sent the Plaintiff for further x-rays which showed that the fracture had healed in a good position. However a slight irregularity of the head of the proximal phalanx suggested the possibility of early arthritis. Uric acid levels were shown by blood tests to be at normal levels. Dr. O’Gorman reported that he had again seen the Plaintiff on 4th December 2001. The swelling of the Plaintiff’s right big toe had cleared but there was very slight diminution in flexion of the interphalangeal joint of the right big toe. Dr. O’Gorman considered that the fracture had united in a good position and within the expected period of six to eight weeks. He felt at this time that there was a possibility that arthritic changes could progress resulting in stiffness and pain in the Plaintiff’s right big toe.
In his Medical Report dated 3rd November 2005, Dr. O’Gorman noted that the Plaintiff complained of pain in his right big toe on walking long distances. No change was observed on clinical examination and Dr. O’Gorman’s opinion was the same as of 6th March 2005. In his Medical Report dated 2nd December 2005, Dr. O’Gorman reports that the Plaintiff was still complaining of pain in his right big toe on walking long distances. Dr. O’Gorman then gives his opinion as follows:-
“In my opinion this man suffered a fracture of the proximal phalanx of his right big toe as a result of his accident at work. The fracture united in good position, this usually takes six to eight weeks. X-ray in November 2001, suggests slight arthritic changes. However the recent x-ray on 1st November 2005, does not confirm this. He continues to date to have diminution of flexion of his right big toe. There is slight swelling of his metarso-phalangeal joint of his right big toe which, continues to cause him pain when walking over one mile. This type of swelling can occur following a crush type injury and can remain as a permanent feature and can cause pain after walking a long distance. The possibility to arthritic changes in this joint is very slight in the light of the recent x-ray.”
The Plaintiff was seen on behalf of the first named Defendant by Mr. Michael A. Moloney, M.Ch., F.R.C.S., on 25th May 2002. Mr. Moloney states his findings on clinical examination and his opinion in the following terms:-
“EXAMINATION
1. Movements of the Right Ankle and Right Sub Talar Joints were normal. Movements of the Right Big Toe were identical to those present in the case of the Left Foot.
2. There was no evidence of the Hallux Valgus or of Calcaneal Spur. The Arterial Pulses in both Feet were normal and there was no evidence of Varicose Veins in his Legs.
3. X-rays of Right Big Toe were carried out on 14th November 2001. I have seen theses films and the fracture of the Proximal Phalanx of the Right Hallux is solidly united by bone, in excellent position. There is no abnormality in the Interphalangeal Joint or Metatarso Phalangeal Joint of the Right Hallux.
4. I attempted to find out whether he could stand on tiptoe or squat, with his Heels off the ground. He refused to co-operate in this.
OPINION
I feel that this man has made a full recovery from the injury which he sustained on 18th March 1999. Permanent Disability is not expected to arise from the fracture of his Right Big Toe. I would regard it as reasonable to consider him to have been unfit for work for three – six months after the accident, but I can find no reason whatever why he should claim to be unfit for work for three years, due the accident concerned.”
In the course of cross examination of the Plaintiff, Senior Counsel for the first named Defendant, on a number of occasions asked the Plaintiff to name the medical advisor or advisors who had advised him that he was not fit for work. The Plaintiff’s reply, expressed in different ways, was that he could not work because of the pain and swelling in his right big toe area. At the request of Senior Counsel for the Plaintiff and with the agreement of Senior Counsel for the first named Defendant I examined the Plaintiff’s feet. I noted that the Plaintiff’s right big toe and the underside of his right foot in the area of the ball of the foot are considerably enlarged by comparison with the same areas of his left foot, but are not otherwise discoloured or deformed.
I am driven by the evidence to the conclusion that this Plaintiff is seriously exaggerating his injuries and that his evidence with regard to his inability to work and his suffering constant pain in the area of his right big toe is false in a material respect. I am satisfied on the evidence that the Plaintiff knows that this evidence is false. I must therefore ask myself whether to dismiss his action would result in an injustice being done.
No claim was made in the course of this action for damages for loss of earnings. I asked Senior Counsel for the Plaintiff if it was being contended that as a result of his injury the Plaintiff was disadvantaged in the labour market for general operatives. I was assured by Senior Counsel for the Plaintiff that no such claim was being advanced. In the Statement of Claim at para. 6 under the heading “Loss of Earnings (Estimated)” a sum of €2,000 is claimed as special damage. However Senior Counsel for the Plaintiff told the court at the start of the hearing that this claim was not being pursued.
On the medical evidence, on the balance of probabilities, I am prepared to accept that up to December 2002, the Plaintiff probably suffered pain in the area of the metatarso-phalangeal joint of his right big toe if he walked for more than one mile. Though the Plaintiff told the court that he had limited education, (Primary level and two years at a Vocational College but without obtaining any certificates), he did not strike me, observing him in giving evidence, as an intellectually challenged or naïve person. However, I do feel that despite his own physician’s Report that the Plaintiff had told him that he suffered pain intermittently, the Plaintiff’s response, each time he was asked about the matter, that he had constant pain, had a certain formulaic quality about it rather than appearing to be a consciously considered reply. Given the clear medical reports from Dr. O’Gorman, – in this context I do not consider it appropriate to have regard to the medical report from Mr. Moloney, – the court was not at any stage mislead by these replies. In these circumstances, I believe that it would be altogether disproportionate and therefore unjust to dismiss this Plaintiff’s action, though I would have done so had he made a claim for loss of earnings or loss of ability to compete in the labour market.
As I am required to do by Law, I have had regard to p. 27 of the Personal Injuries Assessment Board Book of Quantum, where the suggested parameters for general damages for fractures of the big toe which have substantially recovered are given as €11,800 to €16,700. There can be no doubt but that the injury suffered by this Plaintiff must have been very painful at the time it occurred. On the medical evidence I accept that it must have been consistently painful for up to one year from the date of the incident but at a constantly diminishing level. Thereafter, I find that up to December 2005, the Plaintiff probably did suffer intermittent pain in the area of his right big toe if he walked for distances of over one mile. There was no evidence before the court as to how often he walked such distances but it must have happened on occasions. I find on the medical evidence, that there is no measurable risk of the Plaintiff developing osteo-arterthric changes in the metatarso-phalangeal joint of his right big toe. I find on the medical evidence also, that the loss of flexion in the Plaintiff’s right big toe is minimal.
The court will therefore award this Plaintiff general damages for pain, suffering and inconvenience to date, in the sum of €12,500. On the evidence, I find that the Plaintiff will not suffer any significant pain or inconvenience in the future by reason of the injury sustained on 18th March 1999. I will hear the parties on the issue of costs.
Approved: Herbert J.
Corbett v Quinn Hotels Ltd
[2006] I.E.H.C. 222
JUDGMENT of Mr. Justice de Valera delivered the 25th day of April, 2006.
Francis Corbett the plaintiff joined the army on the 15th January, 1990; he was born on the 22nd April, 1972 and was, therefore, 17 years of age on joining.
As a member of the Defence Forces the plaintiff was eligible, on completion of his training, to volunteer for service abroad and as a volunteer he served tours of six months duration in the Lebanon on three separate occasions in 1991, 1993 and 1997. On the latter occasion the plaintiff served a second tour of duty in direct succession to his first and at the time had been promoted to Corporal.
It is in the very nature of military life that a soldier must expect to find himself, on occasion, in harms way and a witness to horrific and barbaric acts. The life of a soldier in Ireland may rarely include the risks of active service but Irish soldiers, members of the Permanent Defence Forces, all volunteers, for more than 40 years have served in highly dangerous situations in various, and varied troubled spots abroad with great distinction; reflecting great credit on their country. No Irish soldier is compelled to serve abroad; all who choose to do so are volunteers.
In this action the plaintiff complains of three major incidents which, he says, have given rise to a condition known as Post Traumatic Stress Disorder (PTSD) these incidents appear to be as follows.
Firstly: the explosion which killed and mutilated a member of the South Lebanese Army who was on a mine sweeping patrol in full view of the plaintiff. This occurred within two weeks of the commencement of the plaintiff’s first tour of duty in the Lebanon in 1991.
Secondly: in what the plaintiff describes as an Israeli mine-sweeping operation, with 10 to 15 Israeli soldiers, a member of the patrol was to use his words, “blown to bits” about 50 meters from a lookout post the plaintiff was occupying. The explosion was so severe it blew him backwards and this occurred late in his first 1991 tour, sometime in August of that year.
The third incident involved a helicopter crash. A helicopter on manoeuvres had just landed at post 644 where the plaintiff was on duty and having taken off crashed some distance away, not as it subsequently transpired in direct view of post 644, killing all on board including an Irish sergeant not personally known to the plaintiff. This (the death of the sergeant) the plaintiff did not know until sometime after the crash.
I am satisfied, from the evidence, that the plaintiff by the time of the initiation of these proceedings (8th August, 2000) was suffering from a serious psychiatric condition which on the balance of probabilities is PTSD. This is the plaintiff’s case and is, in fact, conceded by the defence.
I am also satisfied, on the balance of probabilities, that this has arisen as a result of the experiences he endured in his four tours of duty and specifically the two incidents in the 1991 tour and the single incident in the 1997 tour. I am satisfied that no incident relevant to these proceedings took place during the 1993 tour.
As I have already stated soldiers must be prepared to be involved in events of the kind experienced by the plaintiff and the army cannot be held responsible for these events. However I am satisfied that the army has a duty to its soldiers to ensure that, as far as possible the circumstances obtaining at a given time, that they, the soldiers, have the appropriate training and support to allow them to cope with these traumatic events.
In the 1991 incident the plaintiff, then a young Private, was affected by the sight of a Lebanese soldier being “blown to bits” as he watched. I am satisfied that the plaintiff’s commanding officer responded appropriately on the basis of the information available to him at that time. The temporary removal of the plaintiff from duty was clearly humane and precautionary and I am not satisfied that Colonel McNamara had any reason to suspect anything more serious than the normal reaction from a young inexperienced soldier after a mere two weeks on his first tour of overseas duty. Had the plaintiff himself, as he had the clear opportunity to do, amplified his concern for example by referring to the self soiling episode then, perhaps, Colonel McNamara might have treated the matter differently but the plaintiff failed to do this.
The second incident again in the plaintiff’s first, 1991, tour of duty occurred in August and again concerned a mine explosion which killed and mutilated Israeli soldiers. A comrade of the plaintiff was wounded in this action, by shrapnel, apparently not seriously. According to the plaintiff himself in the following weeks he had sleepless nights and wasn’t eating properly but on his own evidence he tried to carry on as best he could and his evidence suggests that, to an observer, no abnormality could be detected – and the plaintiff made no complaints and sought no assistance from his NCOs and officers.
The plaintiff claims that he began drinking in the period between his first and second tour of duty and that he continued to have nightmares sweating and tensions. But again he sought no assistance for these and volunteered, apparently without any qualms, for a second tour with the 73rd Battalion.
Despite some confusion in the plaintiff’s account no significant incident is alleged in the evidence during this tour but the plaintiff claims his nightmares and other symptoms continued. Again he does not appear to have sought any assistance though there is ample evidence that medical and other assistance was available if sought.
After returning in 1993 the plaintiff continued with his duties and in 1995 was downgraded, for two years, as a result of an ulcer.
By 1997 the plaintiff had recovered and was promoted to Corporal. This constituted a significant advancement in his career and suggests a commitment to the army and a desire to remain within its ranks inconsistent with his allegations of nervousness, anxiety and sleeplessness.
It was on the plaintiff’s third tour that the helicopter crash occurred. The plaintiff’s evidence about this is confused but it is clear that the description he gave to the psychiatrists who interviewed him, and particularly Dr. O’Connell, was exaggerated to a considerable extent though Dr. O’Connell could not have known this at the time. I am satisfied that the plaintiff did not see the helicopter crash (he was below in the post at the time) and he could not see the wreckage at night when the crash occurred or in daylight the next day. He did not see bodies or body parts and did not visit the scene until days afterwards. On the balance of probabilities all the plaintiff saw that night, after the crash occurred, was the glow caused by the burning wreckage.
I am also satisfied that the plaintiff knew of Critical Incident Stress Debriefing (CISD) by this time and I am satisfied that this was well known throughout the army and in particular that briefings were given to the 81st Battalion as stated by Lieutenant
Colonel Buckley and Sergeant Major Lamb among others.
It has been submitted to me that the alleged failure of some of the plaintiffs fellow soldiers to report their purported concerns about the plaintiff’s condition to superiors should not be entertained because this aspect of the plaintiff’s case was not pleaded and therefore cross-examination of the topic did not take place. Having heard the evidence I am not satisfied that these witnesses were reliable on this point. In view of the confusion and contradictions in the plaintiff’s recounting of events his evidence cannot be relied upon and I am satisfied that the witnesses who “could not remember” the CISD briefings and information or who denied their existence are similarly unreliable.
Those witnesses who claimed to have been concerned about the plaintiff but who did not report their concerns to their superiors cannot have been as worried at the time of the occurrences as they now believe they were. Their evidence contrasts with the evidence from Sergeant Egan, Captain Flannery, Colonel Buckley, Captain Taylor as well as Colonel McNamara all of whose evidence I accept and, where it conflicts with other evidence, prefer.
I also note, and attach importance to, the evidence of Commandant Dr. Curran who carried out an examination of the plaintiff at the end of his tour with the 82nd Battalion and found him to be psychologically fit in addition to his physical condition which was also satisfactory.
I am satisfied on the evidence in this case that the military authorities were, prior to the plaintiffs enlistment, aware of the significance of stress and stress related complaints as a factor in soldiers welfare. I am also satisfied that in the period 1990-1998 that stress and its identification in treatment was recognised as an important factor and that the army considered it important to stay abreast of developments internationally.
I do not accept the plaintiff’s contention that his treatment after the first mine explosion in 1991, the second mine explosion again in 1991 or the helicopter crash in 1997 was in the circumstances that obtained at the time inappropriate or deficient. Also I do not accept that the army could have identified any aspect of the plaintiff’s condition at that time which could have lead to psychiatric or psychological problems it the future and I am satisfied that when he returned from Lebanon in April, 1998, he, the plaintiff, showed no signs of the psychiatric condition first identified in or about August of 1998.
In the circumstances the plaintiff’s claim must fail.
Myles v McQuillan
[2007] I.E.H.C. 333, Quirke J. JUDGMENT of Mr. Justice John Quirke delivered the 11th day of October, 2007
The plaintiff is a young lady who is now 24 years old. She resides with her parents at No. 28 Chestnut Grove, Tallanstown, Co. Louth. She is the youngest of three children.
She seeks damages from the defendants for personal injuries, loss and damage which she claims that she has sustained by reason of negligence and breach of duty on the part of the defendants in the treatment and management of an inflammatory bowel disease from which she suffers and which is known as ulcerative colitis.
The first named defendant is sued in her capacity as the nominee of Our Lady of Lourdes Hospital in Drogheda, Co. Louth, (hereafter “Drogheda Hospital”).
The second named defendant is the Health Service Executive which is the statutory body with responsibility for the provision of medical care and services within the State.
RELEVANT FACTS.
1. In the summer of 1997, the plaintiff consulted her general practitioner Dr. Eleanor Ward complaining of distressing abdominal and intestinal symptoms. On the 12th August, 1997, she was referred by Dr. Ward to Mr. Finbar Lennon who was then, a consultant surgeon at Drogheda Hospital.
On the 17th of September, 1997, she underwent a sigmoidoscopy at the hospital and was diagnosed with severe distal proctitis. Her condition was correctly treated by the application of suppositories containing steroids and a salazopyrin drug called Dipentum. She was reviewed in the hospital in December, 1997.
In January, 1998 she suffered severe abdominal pain, nausea, vomiting and the passage of bloody stools. She required admission to Drogheda Hospital where she came under the care of Dr.J.P.Long who was a consultant physician at the Hospital. Dr. Long recognised that the plaintiff was suffering from ulcerative colitis and treated her appropriately with variable levels of steroids and Dipentum between January, 1998 and August, 1998.
2. In August, 1998 she suffered an exacerbation of her condition. Dr. Long ascribed the exacerbation to infectious diarrhoea.
She continued to have significant symptoms throughout the autumn of 1998 and since she was suffering extreme embarrassment at school as a result of her condition, special arrangements were made to enable her to use the staff toilets and the bathroom in her grandmother’s house. These arrangements were made because of the embarrassment which she invariably suffered when she used the ordinary school facilities. Her condition caused her to visit Dr. Long’s clinic for treatment or assistance on nine occasions between January, 1998 and March, 1999.
Dr. Long wrote to the plaintiff’s general practitioner Dr. Ward by letter dated the 17th November, 1998, in the following terms:
“Michelle attended the clinic this morning with her mother. As you know, she has colitis. Really this is not all that severe. … She does become extremely anxious in school and is very embarrassed by the nature of her illness and tends not to use the toilets but uses her Granny’s toilet who lives about 10 minutes from the school. On examination today she was well. I am concerned that most of Michelle’s problems are related to her embarrassment about her condition rather than the condition itself. I have explained this to Michelle and her mother.”
3. On the 25th July, 1999, she sustained a serious exacerbation of her disease and was admitted to Louth Hospital. The notes of the junior doctor who admitted her to hospital recorded that he did not perform a rectal examination but recommended that she should be “deferred to colonoscopy”. The notes record a plan which suggested a colonoscopy the following morning and a recommendation that the plaintiff was “not for anti-motility agents or opiates”. Treatment of the plaintiff by way of intravenous hydrocortisone was commenced.
On the 26th July, 1999, the plaintiff was discharged without having undergone a colonoscopy. She continued to have abdominal pain and was treated by Dr. Long by the prescription of a high dose of oral Prednisolone, (a steroidal drug), and Buscopan, which is an antispasmodic agent which slows motility and provides relief from stomach cramping.
She discontinued her schooling largely because of continuing embarrassment related to her condition and the difficulties which her condition caused her.
Her condition remitted until November, 1999 when she sustained a recurrence of diarrhoea. Thereafter, she felt that she was deteriorating and that her appearance had been adversely affected. She had lost weight and felt that her face had become swollen and had created a disfiguring contrast with her very thin body.
Her worsening symptoms caused her considerable concern and greatly alarmed her parents. Consequently, she attended with her mother at the clinic of her general practitioner Dr. Ward on the 20th December, 1999.
In evidence, Dr. Ward said that when she saw the plaintiff her immediate impression was that the plaintiff “looked unwell” and “had got very thin since I had seen her the last time…” Recording the plaintiff’s weight at six and a half stone she immediately sent her to Drogheda Hospital for assessment advising the hospital that the plaintiff possibly needed admission to the hospital because of her condition.
When she attended the Casualty Unit of Drogheda Hospital on the same day the plaintiff was examined by a doctor, (probably Dr. Lobo, who was Dr. Long’s Registrar). She was examined, prescribed medication and advised to return on the following day to keep a review appointment made earlier with Dr. Long. A note of the visit made by Dr. Lobo referred to a “bed crisis” within the hospital on that day.
When she returned on the 21st December, the plaintiff was examined by Dr. Long who prescribed an increased level of steroidal medication (Prednisolone). He told her that she looked well and he sent her home. He advised her to return in two weeks for review. On the same day Dr. Long wrote to the plaintiff’s general practitioner Dr. Ward advising the latter, inter alia, that the plaintiff’s “..Crohn’s seems to have become active recently … she was accompanied by her mother today and they are both very concerned about her illness. On examination she looks very well. Her abdomen is soft and she was not clinically dehydrated. Her Prednisolone has been increased to 40 mgs daily so I think she should continue with this and I have arranged to review her in two months.”
4. In evidence the plaintiff described Christmas of 1999 as “the worst Christmas ever”. Her symptoms were so severe that she was required to stay in bed in her room with the curtains closed during the entire Christmas period. She was unable to eat or to drink adequately and she was in constant severe pain. The smell of food made her nauseous and when her mother crushed tablets in order to assist her to take medication she “literally gagged” and her throat rejected the medication.
She remained in great pain discomfort and distress until the 30th December, when, in desperation, she attended her general practitioner Dr. Ward who advised her to go immediately to the Casualty Unit of Drogheda Hospital where she was admitted and remained until the11th January, 2000. A letter provided by Dr. Ward to the Hospital dated the 30th December, 1999, recommended admission and advised that the plaintiff was suffering from weight loss, severe abdominal pain, nausea and weakness. It also advised that her heart rate had been recorded at 130/min and that her abdomen was “tender”.
5. On admission, the plaintiff’s pulse rate was 120/min and her white cell and platelet counts were high. Clinical notes apparently made on the 3rd January, 2000 recorded the plaintiff’s weight as “5 and a half stone”. The medical staff at Drogheda hospital arranged for the plaintiff to see a social worker for “counselling” and she was given a high calorie energy drink.
Further clinical notes made on the 8th January, 2000, recorded the plaintiff as “crying + + — says she has diarrhoea after eating…” Nursing notes made on the same day confirm the plaintiff’s condition and complaints.
Although clinical and nursing notes recorded that she was seen by Dr. Long regularly there was no assessment of the plaintiff’s colon by way of scanning, radiology or endoscopy during her confinement in the hospital. No surgical review of the plaintiff was conducted.
The plaintiff’s recollection of the frequency of her bowel movements in the days immediately after her admission to Hospital was inconsistent with the clinical and nursing notes maintained by the Hospital. She was encouraged to maintain stool charts and did so.
She was recorded as having “a comfortable night. Settled and slept for short periods” on the night of the 10th January, 2000. She was seen by Dr. Long on the 11th January and discharged home with advice to see a Dietician.
The Discharge Summary provided by the Hospital to plaintiff’s general practitioner, (to accommodate her ongoing treatment), recorded little other than the medications which had been prescribed for her and that she had been “seen by Dietician and a Social Worker re. her ulcerative colitis”. It indicated that a further report on the plaintiff would be provided by the hospital. No report materialised.
6. On the 27th January, 2000, Dr. Long wrote to Dr. Ward advising that the plaintiff had been admitted to hospital after Christmas “because of an exacerbation of her Crohn’s …on discharge she is well and has gained almost 5 kg in weight…” The letter recorded that he had reduced the plaintiff’s medication and would see her two weeks later. Crohn’s disease is a disease similar to ulcerative colitis. The plaintiff was not suffering from Crohn’s disease.
On the 1st February, 2000, Messrs. O’ Flynn’s pharmacy of Ardee, Co. Louth dispensed a number of Difene 50 mg capsules for the benefit of the plaintiff. The capsules were dispensed pursuant to a prescription issued by the practice of the plaintiff’s general practitioner Dr. Ward. Difene is a non-steroidal anti-inflammatory agent which is usually prescribed in order to relieve pain. It is not consistent with general and approved medical practice to prescribe it for the treatment of ulcerative colitis because it is linked to ulceration of the colon.
The same pharmacy dispensed Prednisolone tablets for the benefit of the plaintiff on the same day pursuant to a prescription given by the same medical practice. The Prednisolone dispensed was 20 mg which corresponded with the level recommended by Dr. Long to the plaintiff on the 27th January, 2000.
The dispensing pharmacist, in evidence stated that in and around February, 2000 it was the practice in County Louth for patients to seek written drug prescriptions from their general practitioners for production at pharmacists. This practice developed because patients could recover the cost of drugs obtained pursuant to prescriptions from their general practitioners, (who were considered to be primary care-givers) but could not recover the costs of prescriptions written by hospital doctors.
7. Between the 11th January and the 29th April, the plaintiff in evidence stated that she felt she did not have a life. She became reclusive because of her condition and spent most of her time lying on the couch in her home. She refused to see her friends and had no social life. During this time the plaintiff’s mother enquired from Dr. Long if surgery was a potential option in order to reduce the plaintiff’s discomfort. The plaintiff’s mother said that Dr. Long replied that many patients suffering from ulcerative colitis had symptoms worse than those of the plaintiff.
By letter dated the 17th February, Dr. Long advised Dr. Ward that the plaintiff’s “Crohn’s continue to settle… and I have asked her to reduce her Prednisolone to 15 mgs daily…”
By letter dated the 2nd March, 2000, Dr. Long’s Registrar Dr. O’Brien advised Dr. Ward that the plaintiff’s “Crohn’s seems to have settled… she is putting up weight. She looks a little cushingoid at the moment. She is on Prednisolone 15 mg and I reduced it down to 10 mg for the next two weeks…”
By letter dated the 16th March, 2000, Dr. Long advised Dr. Ward that the plaintiff was “doing reasonably well. Her bowels had become a little more frequent…I left her Prednisolone 10 mg daily…”.
By letter dated the 30th March, Dr. Long advised Dr. Ward that the plaintiff “Crohn’s is settling but still hasn’t settled entirely… She should continue to stay on Prednisolone 10 mg daily…” As has been indicated earlier the plaintiff was not suffering from Crohn’s disease.
On the 29th April, 2000, the plaintiff attended Dr. Ward who advised her to attend the hospital and provided her with a letter recommending admission. The letter advised the hospital that the plaintiff “… has been unwell during the week. Severe abdominal pain, nausea and vomiting. She has Crohn’s disease for which she attends Dr. Long. He advised an increase in her steroids during the week and she was prescribed antiemetics during the week with no relief also.”
She was admitted to the Hospital but was not seen by a consultant. The clinical notes of her admission record, inter alia, her condition and that she had been feeling unwell for one week with lower abdominal pain, vomiting and nausea.
It was noted by the junior doctor who admitted her that, during the period immediately prior to her admission she had been treated with Prednisolone 30 mg together with Predfoam enemas. It follows that between the 30th March, 2000, and the 29th April, 2000, her condition had deteriorated and her symptoms were so severe that Dr. Long had felt it necessary to prescribe an increased level of Prednisolone, (from 10mg to 30 mg), for her together with Predfoam enemas. It is probable that this change in treatment resulted from advice given by Dr. Long to Dr. Ward by telephone.
On admission to hospital the plaintiff was treated with intravenous fluids including hydrocortisone 100 mg, (intravenously four times each day), and Dipentum 500 mg, (orally twice each day). Among the recommendations made by the junior doctor who admitted her to the hospital was that she should be provided with a “surgical review”. She was not surgically reviewed whilst she was in hospital on this occasion or at any other time during the management of her condition by Dr Long.
A radiological report of an x-ray taken on the 2nd May, 2005, provided that “P.F.A. a paucity of gas in the large and small bowel. No dilated bowels of thickened bowel loops identified. No evidence of pneumoperitoneum”.
Hospital records of tests undertaken after the plaintiff’s admission to hospital on the 29th April, 2000, showed a significantly high platelet count and an increased haemoglobin count. On admission her blood pressure was recorded as 123/102 and her pulse rate was 140/min.
8. On the 2nd May, 2000, she was discharged home. She was seen by Dr. Long immediately before her discharge. She was not seen by any other consultant during her confinement in hospital. The Discharge Summary provided by the Hospital to plaintiff’s general practitioner, (to accommodate her ongoing treatment), recorded her complaint on admission as “abdominal pain, vomiting for one week”.
The “Medications on Discharge” recorded within the Summary were(1) “Dipentumt 500 mgs, (2) Prednisolone 40 mgs and (3), Difene 75 mg.”
9. Shortly after returning home the plaintiff received written notification from the hospital that she had developed a urinary tract infection. The note included a written prescription of antibiotic medication. The prescribed antibiotic, (called Augmentin), was administered by the plaintiff’s mother who crushed the tablets in milk for the plaintiff, who was unable to swallow without vomiting. The plaintiff’s pain gradually increased in intensity and reached an unbearable level. Between the 5th and 8th of May, she was unable to sleep and was too weak to go to her bathroom unaided. It became necessary for her to keep her mobile telephone beneath her pillow so that she could call her mother for assistance.
10. At approximately 11.30 p.m. on the evening of the 8th May, 2000, the plaintiff’s pain level and symptoms became so intense that her mother, deliberately armed with; (a) notes of her daughter’s medical history treatment in the hospital and (b) her current medication prescriptions, telephoned the hospital for assistance.
Her call was transferred, at her request, to the hospital’s Casualty Department. She spoke on the telephone to a person who introduced herself as a “Sister in Charge”. She immediately provided this person with a history of the plaintiff’s condition, treatment and medications and advised her that the plaintiff had been admitted to the hospital with severe symptoms on the 29th April, 2000, and discharged on the 2nd May, (less than a week earlier). She described the severity of the plaintiff’s symptoms and her extreme pain and she asked for advice and assistance.
The person who had described herself as a “Sister in Charge” advised the plaintiff’s mother; (a) to give the plaintiff two Paracetamol tablets and (b) to telephone the plaintiff’s general practitioner the following morning in order to arrange for a “home visit” to the plaintiff by the general practitioner.
The telephone call from the plaintiff’s mother to the hospital lasted approximately three minutes. Immediately after its conclusion the plaintiff’s mother administered two Paracetamol tablets to the plaintiff crushed in milk. The tablets were ineffective and the plaintiff and her family had little, if any sleep for the remainder of the night.
11. Early the following morning the plaintiff’s mother telephoned the plaintiff’s general practitioner and was promised a “home visit” from Dr. O’Neill, (deputising for Dr. Ward who was not available).
At approximately 10 a.m. the plaintiff’s mother assisted the plaintiff into the bathroom. Shortly afterwards the plaintiff suffered an extreme and acute attack involving a sudden explosive spasm and vomiting and the evacuation of black substances from her body in a manner which was quite terrifying.
Responding to the plaintiff’s screams the plaintiff’s mother helped her back into bed and telephoned Dr. O’Neill for urgent assistance. When Dr. O’Neill arrived he recognised that the plaintiff was in immediate danger of death, administered emergency treatment and called an ambulance.
The ambulance arrived expeditiously and the plaintiff was brought to Dundalk Hospital where she was immediately admitted under the care of Ms. Ursula Mulcahy who was the Consultant Surgeon within that hospital. X-rays of the plaintiff taken immediately upon her admission to Dundalk Hospital disclosed that the plaintiff had developed a generalised peritonitis, a condition so dangerous that Ms. Mulcahy decided that immediate surgery was required. She embarked upon it at 3p.m.
Upon opening the plaintiff’s abdomen Ms. Mulcahy found “free faecal fluid swimming throughout the whole abdomen …” It was necessary to perform a total colectomy, (removal of most of the large bowel), leaving the plaintiff with an ileostomy. The plaintiff required a number of emergency procedures for a variety of different life threatening conditions which developed and required surgical and other treatments during the days and weeks immediately after her emergency admission to hospital on the 9th May.
When asked her view as to when the peritonitis might have occurred Dr. Mulcahy replied “I would reckon somewhere in the region of 24 hours, but I just don’t know”.
When asked whether it might have developed “near the start of the 24 hours” She replied “I would say it was probably nearer the start … there are all sorts of ifs buts and maybes. Certainly it wasn’t a question of perforating and then being rushed straight to theatre. It looked as though the perforation had been going for some time. If you are trying to pin me down to a precise time … I am afraid I couldn’t …” She continued “the sooner you get a perforation operated on, the better the outlook and the less adhesions you are likely to get afterwards. … they couldn’t do a pouch because of the adhesions and I don’t think anybody could give you a definite answer but there probably would have been fewer adhesions if she had been operated on earlier”.
When asked whether the perforation occurred at the time when the plaintiff experienced a sensation of an “explosion” and a “popping sensation” she said “it could be yes”.
12. The plaintiff’s post-operative care was complicated by the ongoing peritonitis, severe wound infection (with an element of necrotizing fasciitis), intestinal fistulation, pneumonia, and severe malnutrition. She suffered psychological symptoms and Ms. Mulcahy was worried about her mental condition over a significant period of time. In consequence she was seen by a Consultant Psychiatrist Dr. Lyster on the 28th June, 2000.
Three months later, still hospitalised and requiring ongoing surgical and other treatment, she was transferred to Beaumont Hospital under the care of Mr. Brian Lane, a Consultant Surgeon with a special interest in colorectal surgery. Her multiple abdominal abscesses and intestinal fistulas were treated using vacuum drainage. Subsequently she developed pulmonary emboli and was placed on intravenous anticoagulation and Warfarin which is an oral anticoagulant. She developed a splenic infarct. She required continuous parental nutrition and the insertion of central venous catheters to allow for intravenous nutrition. She developed a tension hydrothorax which is a complication of the parental nutrition. She contracted MRSA.
On the16th November, 2000, Mr. Lane performed a laparotomy on the plaintiff. He excised a fistula and performed an endoanal anastomosis on the small bowel. She required a chest drain. The plaintiff was allowed home one week before Christmas 2000. However, her nightmare was far from over.
13. When she returned home she was so debilitated that her father had to carry her upstairs at night. Her recovery was lengthy, painful and distressing. She suffered severe breathing problems consequent upon the insertion of chest drains. She required treatment for a variety of different complaints including urinary incontinence, gallstones and rectal symptoms, (including bleeding and acute proctitis). Most of her hair had fallen out and its restoration took some time. She required physiotherapy to improve her mobility.
In June and July of 2002, two attempts were made by Mr Lane to form an ileal pouch for the plaintiff in order to allow for the ileostomy to be reversed. This was not possible because of the severity of the scarring in the lower abdomen and pelvis. Dense adhesions and extensive bleeding were among the factors which caused the surgery to be abandoned on both occasions.
The plaintiff will require surgery for the removal of her rectal stump at some future date, (surgery described in evidence by Mr. Deasy the Consultant Surgeon who will probably perform it as “daunting”). It will be necessary because of an increasing risk of rectal cancer over the passage of time.
The extensive surgery which the plaintiff has undergone has resulted in equally extensive and disfiguring scarring which causes the plaintiff great embarrassment and makes her feel physically unattractive. Her ileostomy causes leaking difficulty and embarrassment. She does not anticipate that she will ever enjoy a satisfactory personal or sexual relationship by reason of her physical and psychological condition. Whilst she is physically capable of childbearing, pregnancy would carry significant risks for her. Professor John Bonnar who is a Consultant Obstetrician and Gynaecologist stated in evidence that she has “… a poor prognosis for childbearing”. She has undergone bone density testing and has been diagnosed with osteopenia which places her at risk of developing osteoporosis.
14. Mr. Joseph Deasy who is a Consultant Surgeon with a special interest in General and Colorectal Surgery stated in evidence that the plaintiff came under his care in Beaumont Hospital in 2006. She is still under his care and it is his opinion that during the next ten years it will be necessary to attempt to surgically remove her rectal stump. This will be required because of an increasing risk of the development of rectal cancer. This surgery carries a 10% risk of adhesions and that risk can double or treble or even quadruple for persons who have had peritonitis.
He was of the opinion that “the time of the perforation” was approximately 10.30 a.m. on the morning of the 9th May, when the plaintiff felt what she described as “an explosion” or “popping sensation” followed by vomiting and the release of black liquid material from her body.
He said that if the plaintiff had been brought to the Casualty Department of the hospital on the night of the 8th May, 2000, or the early morning of the 9th May, 2000, she would probably have been admitted. Thereafter the distension of her abdomen would have been apparent. That, in turn, would have warranted “urgent investigation and x-ray”.
He said that when a perforation occurs “the sooner you get in there the better. Results show that when a patient has a perforated colon for longer than 24 hours and usually longer than 18 hours, the complication is a lot worse, the mortality is a lot higher and than if you intervene in the first six hours”.
15. Dr. Fred Bereen who is a Consultant Psychiatrist stated in evidence that she suffers from post-traumatic stress disorder as a result of the trauma associated with the rupture of her colon. He said that notwithstanding therapeutic intervention her symptoms remain and have been exacerbated by further negative information regarding her overall health. Dr. Paul Scully who is a Consultant Psychiatrist stated that the post-traumatic stress disorder from which she suffers is consistent with major trauma of the kind endured by the plaintiff. She receives ongoing treatment for this condition by way of psychotherapy and pharmacotherapy administered by her general practitioner.
16. In evidence the plaintiff stated that it had been her intention to complete her Leaving Certificate examination and to then pursue a career in computer skills. Because the embarrassment associated with her colitis caused her to leave school prematurely she was unable to complete her Leaving Certificate.
She commenced a computer course (ECDL) in April, 2003 and completed it successfully. She has since successfully completed a Diploma in Information and Communication Technology. In March, 2004 she obtained a specialist certificate from the FAS-on line Microsoft Office.
The plaintiff was unable to sustain full time employment because she continued to suffer symptoms consequent upon her peritonitis. Between July, 2004 and January, 2005 she obtained part-time employment as an assistant tutor (ECDL) for two hours each week. Subsequently, she secured additional work as a tutor and was able to work between four and six hours every week.
Between May, 2005 and August, 2006 she secured full-time employment as a legal secretary with a firm of solicitors but was subsequently forced to reduce her working hours from 40 to 20 hours each week because of her symptoms. Ms. Brenda Keenan who is a vocational rehabilitation consultant, in evidence, was of the opinion that the plaintiff was “at best confined to minimal part time employment only” by reason of her present medical condition.
THE PLAINTIFF’S CLAIM.
In summary, it is claimed on behalf of the plaintiff that the defendants were negligent in the management and treatment of her colitis because:
(a) They failed to adopt appropriate and proper investigative measures in order to establish the extent and severity of her colitis;
(b) They continued to treat and manage her colitis by the prescription of Prednisolone and Dipentum for an unacceptable length of time after the treatment had become ineffective and the plaintiff had become steroid dependent;
(c) They failed to communicate and consult with the plaintiff and her family during the management and treatment of the plaintiff’s colitis and permitted the quality of her life to deteriorate to a degree that required her to discontinue her education and suffer inappropriate and unnecessary distress, embarrassment, humiliation and upset;
(d) They failed to have the plaintiff surgically reviewed and to consult with the plaintiff and her family in order to discuss and consider the possibility of treatment by way of elective surgery when treatment by medication was proving ineffective and her condition was deteriorating;
(e) They failed to investigate and treat her condition and her symptoms by way of colonoscopy and otherwise between the 20th December, 1999 and the 11th January, 2000, causing her unnecessary and extreme pain distress and other severe and debilitating symptoms at that time;
(f) They failed to adequately investigate treat and manage the plaintiff’s colitis by providing her with the services of an appropriately qualified consultant physician or surgeon between the 29th April, 2000 and the 2nd May, 2000 while she was a patient in the hospital;
(g) They permitted her to be discharged from hospital on the 2nd May, 2000, when it was unsafe and inappropriate to do so and without advising her or her family that it was necessary for her to report any deterioration in her colitis to the hospital immediately should that occur;
(h) They prescribed inappropriate medication for the plaintiff while she was in hospital in April and May 2000, and recommending that she should continue to take that medication after her discharge from hospital when it was unsafe and dangerous for her to do so;
(i) They provided the plaintiff’s mother with inappropriate and improper advice on the night of the 8th May, 2000, when the plaintiff’s mother telephoned the hospital in distress seeking assistance and advice in relation to the plaintiff’s deteriorating condition.
It is claimed on behalf of the plaintiff that the management and treatment of the plaintiff outlined above, comprised a clear departure from general and approved medical practice appropriate for the proper care and management of a patient suffering from ulcerative colitis at the material time.
EXPERT MEDICAL EVIDENCE
1. Dr. Graham Neale who is an experienced Consultant Physician and Gastroenterologist testified at length during these proceedings. He was critical of the manner in which the plaintiff’s ulcerative colitis was managed by Dr. Long and by the hospital.
He described a failure in communication between Dr. Long and the plaintiff and her family. He acknowledged that colitis is a very unpleasant disease for which there is no known cure. He said that, notwithstanding its ill effects, the proper management and treatment of the disease does not require a patient to endure the type of constant distress, embarrassment, humiliation and sheer misery endured by the plaintiff on several occasions between July, 1999 and May, 2000. She was between 15 and 17 years old at that time.
He said that the failure by Dr. Long and the hospital staff to properly investigate and treat the very severe symptoms from which the plaintiff was suffering on the 20th December, 1999 and during the days immediately thereafter was inappropriate and represented a departure from proper and approved methods of investigating and treating ulcerative colitis at that time. In January, 2000 when it was clear that treatment by steroids had been ineffective, the plaintiff should have been surgically reviewed and thereafter, consulted with a view to discussing and considering the possibility of undergoing elective surgery by way of treatment of her colitis.
It was his opinion that the failure by the hospital to have the plaintiff properly investigated and treated by an appropriately qualified consultant physician or surgeon shortly after her admission to hospital on the 29th April, 2000 and before her discharge from hospital on the 2nd May, 2000, was inexplicable and represented a clear breach of appropriate standards and approved practice for the management and treatment of colitis at the material time.
He described her treatment in hospital as “ … a very abnormal state of affairs” and said that the plaintiff should not have been discharged from the hospital on the 2nd May, 2000 and certainly not without advice to report any deterioration in her condition to the hospital immediately and to return for further investigation and treatment in that event.
He said that the cause of the perforation was “mutli-factorial” and that mismanagement was “a very significant component in the end result …” The prescription of Buscopan was inappropriate because it was an anti-motility agent and masked significant symptoms. The prescription of Difene was inappropriate because it is a drug with an acknowledged link to ulceration of the bowel. Its prescription for the plaintiff was a “significant contributory cause” associated with the perforation of the plaintiff’s colon. He said “Difene is known to exacerbate the colitic process (which may end up with distension of the caecum) … (which) …can rupture because of that so it is part of the chain of events …”
By prescribing these drugs the defendants, from time to time and on particular occasions, departed from general and approved medical practice in the management of the plaintiff’s colitis.
Dr. Neale was unwilling to give an authoritative opinion on the time at which the perforation occurred. He said that this would be “best explored by considering the findings of Ms. Mulcahy at operation. I don’t think I should comment on that because I don’t operate on patients with perforations.”
Pressed in cross-examination as to when the perforation occurred he said “my view is that it occurred about 24 hours before the operation at the time when Ms. Myles developed this crescendo pain during the afternoon and evening of the day before she was admitted to hospital”.
He was strongly of the opinion that when the plaintiff’s mother telephoned the hospital for assistance on the evening of the 8th May, 2000, “medical help should have been forthcoming … she should have been taken immediately to the hospital or somebody should have gone out to see her and they would have admitted her to hospital immediately”.
He described the advice given to the plaintiff’s mother by the nurse or “Sister in Charge” of the Casualty Department in the hospital as “totally unacceptable” He said that the plaintiff should have been admitted to hospital and immediately x-rayed. That would have resulted in emergency surgery and would have prevented many of the infections and complications which the plaintiff was caused to endure.
In summary, it was his opinion that the management of the plaintiff’s ulcerative colitis fell short of general and approved medical practice in a number of respects and on a number of occasions between August, 1997 (when her condition first manifested itself), and May, 2000(when her colon ruptured).
2. Professor Alexander Williams who is an experienced surgeon and a Professor of Gastro-Intestinal Surgery said that the investigative measures undertaken by Dr. Long were inadequate and inappropriate. He said that she should have been investigated by way of colonoscopy at an early stage in the management of her colitis. This was necessary in order to establish the full extent of her condition and its progression. During her several admissions to hospital arising out of exacerbations of her colitis, this type of investigation was never undertaken.
He said that elective surgery should have been performed before the plaintiff’s colon perforated. He did not accept that the perforation was “an unexpected sudden complication”. He said “I think that it should have been recognised before this happened, before the perforation occurred.”
Surgery without perforation would have comprised a total colectomy leaving the rectal stump. This would have been an uncomplicated operation and there would have been no thrombosis and no septic complications. Whilst the plaintiff would have had adhesions, they would not have been severe and would not have affected her changes of pregnancy. He said “there would not have been organisms in the peritoneal cavity. She would have made a rapid recovery from that operation … that would have been a very straightforward operation without the serious risk of complication but once you have peritonitis it is an entirely different picture.”
Two further operations would have been required to complete an ileal anal anastomosis which would have provided normal continuity of gastrointestinal tract with no stoma.
Because the plaintiff suffered so many post operative complications and infections consequent upon her peritonitis there is now only a slight possibility that surgery could be successful and it is very likely that she will remain with a permanent ileostomy.
He said that the plaintiff’s mother should have been deeply involved in the consultation relative to the treatment of the plaintiff’s condition and in particular to the consideration of surgery.
It was his opinion that the phone call made by the plaintiff’s mother to the hospital on the 8th May, was of considerable significance because it indicated that “her mother was worried to death about Michelle’s condition on the 8th and still she was not admitted. I think it is possible had she been operated on the 8th she would still have had a perforation but it would not have been anything like as bad as it was. She would not have had the same septic complications and organ failure that she got”.
He said that Buscopan and Difene should not have been prescribed for the plaintiff.
Cross-examined by Mr. McGrath S.C. on behalf of the defendants, Professor Alexander Williams agreed that the perforation could have occurred within 28 and 48 hours prior to the surgery performed by Ms. Mulcahy on the 9th May.
In summary, it was his opinion that the treatment provide by Dr. Long and by the hospital to the plaintiff fell short of general and approved medical practice in a number of respects and on a number of occasions between August, 1997 and May, 2000.
3. Dr. Long, in evidence, acknowledged that at the time when the plaintiff was discharged from Drogheda Hospital on the 11th January, 2000, she been the subject of active treatment for ulcerative colitis for some 28 months and had been under his personal care and management for approximately 24 months.
For the first 23 months of her condition she had been intermittently treated by the prescription of corticosteroids which had been partly successful. She had required admission to hospital in July, 1999 consequent upon a moderate exacerbation of her condition.
After her discharge from Drogheda Hospital in July, 1999 she was treated with corticosteroids on a continuous basis for more than five months without remission of her condition. She was then admitted again to Drogheda Hospital on the 30th December, 1999, suffering from a severe exacerbation of her condition. Dr. Long agreed that at the time of her admission on the 30th December, 1999, the plaintiff had become “steroid resistant” (i.e. her ulcerative colitis was not responding to treatment by steroids).
He described his letter to Dr. Ward dated the 21st December, 1999, as a “critically poor letter there are certainly two mistakes and probably a third”. He agreed that the plaintiff “ … clearly was not very well” and described the letter as “ … not the letter I am most proud about … there is clearly an error about Crohn’s and two months instead of two weeks. ….and that is a fact I cannot change that..it is there in black and white.”
He said that, although the evidence justifying continued treatment by steroids was weak and diminishing the only other options available by way of treatment were; (a) treatment by immuno-modulatory drugs or (b) surgery.
He stated that he had taken the view that treatment by immuno-modulatory drugs was undesirable since those drugs were unproven at the time and were believed to carry a risk of cancer. He therefore considered that the only real alternative treatment available to the plaintiff was surgery, (a colectomy and the construction of a pouch). This would require artificial accommodation for bowel evacuation on a temporary basis and thereafter by means of the pouch. This surgery had obvious ongoing social and other problems and difficulties associated with it.
He said (and it is acknowledged by all of the expert witnesses who testified), that the plaintiff’s condition, as a matter of near certainty, would have required that type of surgery at some point in her life. It was desirable to postpone surgery for young patients for as long as was reasonably possible because of the social and other problems resulting from the surgery. Accordingly, he believed he should postpone the plaintiff’s surgery having regard to the plaintiff’s youth and disposition at the relevant time.
He said that he made a clinical decision to make a “final attempt” to treat the plaintiff by the administration of steroids. That decision was not recorded in any document or notes maintained by Dr. Long or by the Drogheda Hospital.
On each occasion when the plaintiff was discharged from hospital after treatment for exacerbations of her ulcerative colitis, a document called a “Discharge Summary” was provided by the hospital to her general practitioner, (in order to accommodate her ongoing treatment). It recorded her complaints on admission, her treatment in hospital and the medication recommended and prescribed for her.
The Discharge Summaries in respect of each of the plaintiff’s admissions to Drogheda Hospital were identical stereotyped one-paged documents which made provision only for the insertion of cryptic information in handwriting beside a small number of questions. Dr. Long described these documents as “…a generic Discharge Summary which every specialty uses”. He explained that it applied to the entire hospital and to the disciplines of “general surgery, orthopaedics and gynaecology”.
The Discharge Summary in respect of the plaintiff’s admission and treatment in the hospital between the 30th December, 1999, and the 11th January, 2000, recorded only the dates of her admission and discharge, the identity of her consultant (Dr. Long) and her “Complaint ”, (identified as “U.C.” (Ulcerative Colitis)- exacerbation diarrhoea weight loss abdominal U. C) Her “Investigations/Treatments” were recorded as “- seen by Dietician and a Social Worker re her ulcerative colitis”. The medications which she had been prescribed were then listed.
The document was signed by a junior doctor on the date of discharge. A box on the document beside the words “A further report will follow…” was ticked in the affirmative. No report was submitted to the general practitioner. Dr. Long agreed that “…the G.P. needed a lot of information about that. Getting a Discharge Summary like that would not seem satisfactory…” He said that he submitted no further report because of an agreement with general practitioners within the area which discouraged the submission of additional information from consultants to general practitioners.
He said that before the introduction of this document by the hospital, “We used to dictate a discharge summary…” Referring to the documents completed in respect of the plaintiff he said“…these were introduced following discussion with the G.P.’s because they felt they were getting too much information and what they wanted to know was how long the patient was in, under whose care they were, their presented complaint, the diagnoses, investigations and operations and their meds (sic) and discharge and what follow-up arrangements.”
He continued “I agree this is unsatisfactory in terms of the amount of information but this was by agreement with the G.P.’s in the area.”
When asked when by Mr. Bradley whether or not the arrangement “seems to leave the G.P. in the dark” he replied “well it may well do but we did this because this was what they wanted. They said this was the information they needed.”
He acknowledged that he should have consulted the hospital notes which recorded the plaintiff’s admission to hospital on the 29th April, 2000, and her treatment in the hospital thereafter. He agreed that if he had adopted appropriate medical practice at that time and consulted the hospital notes and the Discharge Summary he would have discovered that Difene had been wrongly prescribed for the plaintiff and he would have countermanded that prescription
He wrote to the plaintiff’s general practitioner by letters dated the 27th January, 2000, the 17th February, 2000, the 2nd March, 2000 and the 30th March, 2000.
In each letter he referred to the plaintiff’s condition as “Crohn’s”. He advised that her condition was improving and that he had reduced the level of steroids required for her treatment. A number of hospital documents and notes referred to the plaintiff’s condition as “Crohn’s” or “Crohn’s disease”.
It was acknowledged by Dr. Long that the plaintiff never suffered from Crohn’s disease and that the constant references to that disease associated with the plaintiff were misleading and could in particular circumstances, have had serious implications for the plaintiff’s health.
4. Professor Dermot Kelleher, who is a physician and a Consultant Gastroenterologist attached to St. James’ Hospital and a Professor of Clinical Medicine in Trinity College Dublin testified on behalf of the defendants. It was his opinion that, in general, the treatment provided for the plaintiff was “entirely standard treatment for acute exacerbation of ulcerative colitis” and was accordingly, appropriate in the circumstances.
He said the events which resulted in the perforation of the plaintiff’s colon and her consequent admission to hospital on the 9th May, 2000, occurred subsequent to her discharge from hospital on the 2nd May, 2000. He said that those events could not reasonably have been predicted because the abdominal x-rays taken during her confinement in hospital did not disclose evidence of toxic dilatation.
It was his opinion that the social embarrassment associated with ulcerative colitis was of considerable significance and should be taken into account in the management and treatment of the condition.
He said that Difene is a drug which is “best avoided in inflammatory bowel diseas, and only used with caution. It is not particularly effective for abdominal pain and it is not the best agent to use in the circumstances”.
He said it would have been preferable if the plaintiff had been seen by a consultant whilst she was in hospital between the 29th April and the 2nd May, 2000. A consultant would probably have prevented the prescription of Difene for the plaintiff. It was not appropriate to prescribe that drug for her.
He said that the advice given to the plaintiff’s mother on the evening of the 8th May, 2000, by a nurse or “Sister-in Charge” within the Casualty Department of the hospital was “an inappropriate response … if somebody with colitis phones up they should be put on to a doctor, I would say to discuss the case and certainly not be told to take two Paracetamol”.
He said that the sooner surgery is performed after a perforation the better the end result will be for the patient. It was his opinion that the perforation of the plaintiff’s colon occurred “the day before admission, based on the fact of severe pain at that time”.
5. Mr. Paul Durdey who is a surgeon and who has been appointed to the United Bristol Healthcare Trust as a Consultant in Gastrointestinal Surgery with a special interest and expertise in the treatment and management of inflammatory bowel disease also testified on behalf of the defendants.
In summary, it was his opinion that the management and treatment of the plaintiff whilst she was under the care of Dr. Long was, in general, consistent with general and approved medical practice in 2000 and was appropriate and reasonable in the circumstances.
Asked for his “considered opinion” as to the timing of the occurrence of the perforation he said “on the evidence I have available, I would say it occurred when Ms. Myles felt the popping sensation in her abdomen.” This occurred at approximately 10 a.m. on the morning of the 9th May when the plaintiff felt a sensation which she called “an explosion” and “popping sensation” followed by a feeling of well-being and relief.
He says “that would be indicative, in my experience, of the perforation having occurred at that time. Patients who have perforation of the intra-abdominal organ can normally time it to the second it happens. The most common situation is where patients perforate a peptic ulcer and they describe as though they have been punched in the stomach or kicked in the stomach. It is the same with any perforation that you have and particularly in a toxic megacolon, you have a very inflamed, tender, distended bowel and when it goes pop it actually relieves itself. So a patient often feels remarkably better for a period of some hours afterwards, after the perforation has occurred, because the colon is deflated and has taken the pressure off, but then of course the faecal material leaking into the abdominal cavity causes the onset of bacterial peritonitis.”
He agreed that if the plaintiff had been admitted to the hospital immediately after her mother’s telephone call to the hospital on the night of the 8th May, 2000, the perforation probably would not have occurred. He said that if the perforation had, in fact, occurred before the plaintiff went into hospital, then on the balance of probabilities the complications from which she suffered would have occurred in any event.
6. Dr. Luke O’Donnell who is a Consultant Physician and Gastroenterologist attached to the Mayo General Hospital also testified on behalf of the defendants.
In summary, it was his opinion that the care provided by Dr. Long to the plaintiff in respect of her condition was of a high standard and commensurate with general and approved medical practice in 2000. He said that the plaintiff received appropriate therapy during the several acute exacerbations of her colitis and during her admissions to hospital whilst under the care of Dr. Long. He said there was no evidence of an imminent risk of a perforation of the plaintiff’s colon at the time when she was discharged from hospital by Dr. Long on the 2nd May, 2000.
It was his opinion that “the moment of the perforation” was the moment when the plaintiff suffered “excruciating pain” on the morning of the 9th May and felt a sensation “like an explosion …” and “felt something pop inside me and …I said … ‘something is after popping’…and all this black stuff and blood started coming out … and … I started throwing up all this black stuff and blood as well.” He said that when a perforation occurs “it is just like the dam bursts and is instantaneous”.
Although he agreed that Difene should not be prescribed because “there is a risk that it can exacerbate colitis”, it was his opinion that the chance that Difene had made the plaintiff’s colitis worse between the 2nd of May and the 9th of May was “slim” because Difene had been prescribed and ingested by the plaintiff for more than a month after February, 2000 without causing exacerbation of her colitis.
He agreed that if the plaintiff’s mother telephoned the Casualty Department of the hospital on the evening of the 8th May and explained her history, condition and symptoms to the person who answered her call then she should have been advised either to contact her general practitioner or to come to the hospital immediately if there was a doctor to see her.
THE LAW
The principles which apply to claims for damages for injury, loss or damage allegedly sustained by reason of negligence by professional persons in the conduct and discharge of their professional duties and obligations have been identified by the Supreme Court in Dunne v. National Maternity Hospital [1989] I.R. 91 where Finlay C.J stated at p.109 that:-
“1. The true test for establishing negligence in diagnosis or treatment on the
part of a medical practitioner is whether he has been proved to be guilty of
such failure as no medical practitioner of equal specialist or general status
and skill would be guilty of if acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on
proof that he deviated from a general and approved practice, that will not
establish negligence unless it is also proved that the course he did take was
one which no medical practitioner of like specialisation and skill would have
followed had he been taking the ordinary care required from a person of his
qualifications.
3. If a medical practitioner charged with negligence defends his conduct by
establishing that he followed a practice which was general, and which was
approved of by his colleagues of similar specialisation and skill, he cannot
escape liability if in reply the plaintiff establishes that such practice has
inherent defects which ought to be obvious to any person giving the matter due
consideration.
4. An honest difference of opinion between doctors as to which is the better
of two ways of treating a patient does not provide any ground for leaving a
question to the jury as to whether a person who has followed one course rather
than the other has been negligent.
5. It is not for a jury (or for a judge) to decide which of two alternative
courses of treatment is in their (or his) opinion preferable, but their (or his)
function is merely to decide whether the course of treatment followed, on the
evidence, complied with the careful conduct of a medical practitioner of like
specialisation and skill to that professed by the defendant.
6. If there is an issue of fact, the determination of which is necessary for
the decision as to whether a particular medical practice is or is not general
and approved within the meaning of these principles, that issue must in a trial
held with a jury be left to the determination of the jury.
In order to make these general principles readily applicable to the facts of
this case, with which I will later be dealing, it is necessary to state further
conclusions not expressly referred to in the cases above mentioned. These are:
(a) “General and approved practice” need not be universal but must be
approved of and adhered to by a substantial number of reputable practitioners
holding the relevant specialist or general qualifications.
(b) Though treatment only is referred to in some of these statements of
principle, they must apply in identical fashion to questions of diagnosis.
(c) In an action against a hospital, where allegations are made of negligence
against the medical administrators on the basis of a claim that practices and
procedures laid down by them for the carrying out of treatment or diagnosis by
medical or nursing staff were defective, their conduct is to be tested in
accordance with the legal principles which would apply if they had personally
carried out such treatment or diagnosis in accordance with such practice or
procedure.
In order fully to understand these principles and their application to any
particular set of facts, it is, I believe, helpful to set out certain broad
parameters which would appear to underline their establishment. The development
of medical science and the supreme importance of that development to humanity
makes it particularly undesirable and inconsistent with the common good that
doctors should be obliged to carry out their professional duties under frequent
threat of unsustainable legal claims. The complete dependence of patients on
the skill and care of their medical attendants and the gravity from their point
of view of a failure in such care, makes it undesirable and unjustifiable to
accept as a matter of law a lax or permissive standard of care for the purpose
of assessing what is and is not medical negligence. In developing the legal
principles outlined and in applying them to the facts of each individual case,
the courts must constantly seek to give equal regard to both of these
considerations.”
ISSUES
The issues for determination in this case can be summarised as follows:
1. Did Dr. Long, or the hospital, or both, fail to manage and treat the plaintiff’s colitis with the care and skill required of a medical practitioner (or hospital), of equal status and specialist skills?
2 If Dr. Long, (or the hospital), or both were guilty of negligence or the breach of a duty owed to the plaintiff, did that negligence or breach of duty cause injury, loss or damage to the plaintiff?
3. If so, what was the extent of the injury, loss or damage sustained by the plaintiff and;
4. If the plaintiff has suffered injury, loss or damage by reason of negligence on the part of Dr. Long or the hospital then how much by way of damages is she entitled to recover from Dr. Long or the hospital, (or both)?
FINDINGS
1. The expert witnesses who testified agreed that investigation by colonoscopy should have been undertaken at an early stage in the management of the plaintiff’s colitis. However, Dr. Long correctly diagnosed the plaintiff’s ulcerative colitis and it was not established in evidence that a colonoscopy would have provided Dr. Long or the hospital with more relevant or important information than what was, in fact, discovered by clinical examination.
It has not been established on behalf of the plaintiff that any other investigative measure adopted by Dr. Long would have provided him with significant medical information relevant to the plaintiff’s condition or alerted the defendants to the risks of an impending perforation of the plaintiff’s colon.
The plaintiff’s condition was recorded in clinical and hospital notes and documents as “Crohn’s” and “Crohn’s disease”. It was acknowledged in evidence by Dr. Long that the plaintiff never suffered from Crohn’s disease and that the constant references to that disease which appeared in correspondence and in the hospital notes and documents were mistaken and could, in other circumstances, have had serious implications for the plaintiff’s health.
However, it was established on the evidence that Crohn’s disease is similar to ulcerative colitis and that Dr. Long was at all times aware of the fact that the plaintiff was suffering from ulcerative colitis and not from Crohn’s disease. Accordingly, whilst the constant misdescription of the plaintiff’s medical condition was careless, potentially dangerous, and therefore negligent, it did not cause or contribute to the perforation of the plaintiff’s colon in May of 2000.
It has not, therefore, been established on the evidence and on the balance of probability that Dr. Long or the hospital failed to adopt any appropriate or proper investigative measure which would have; (a) helped to establish the extent and severity of the plaintiff’s colitis and (b) consequently reduced or eliminated the risk of a perforation of her colon.
There was a consensus amongst the expert medical witnesses that the initial management and treatment of the plaintiff’s colitis by the prescription of Prednisolone and Dipentum was correct and appropriate and in accordance with proper medical practice at the material time. They were also in agreement that by January, 2000 it had become clear that the plaintiff had become steroid-dependent and that her continued treatment by the prescription of Prednisolone and Dipentum was questionable.
In evidence, Dr. Long said that, in January, 2000 he had decided to make “one last attempt” to manage and treat the plaintiff’s colitis by the combined prescription of corticosteroids and Dipentum. He said that it was his intention to discuss with the plaintiff the possibility of treatment by elective surgery if his “last attempt” was unsuccessful. That decision, although unrecorded, was a clinical decision made by an appropriately qualified consultant physician and cannot be categorised as a decision that no consultant physician of like status, specialisation and skill would have followed taking the ordinary care required from such a consultant physician.
The plaintiff has, therefore, failed to establish that Dr. Long was negligent or in breach of a duty owed to the plaintiff by continuing to treat and manage her colitis by the prescription of Prednisolone and Dipentum between January, 2000 and the 29th April, 2000.
It has been established on the evidence that the management and treatment of the plaintiff’s colitis by, (and on behalf of), Dr. Long on the 20th and 21st December, 1999, fell short of the standard of care required of a medical practitioner of Dr. Long’s status and specialist skills.
I am satisfied on the evidence that when the plaintiff attended the hospital on the 20th December, 1999, she was extremely ill and required immediate admission to hospital and treatment for the very severe pain, distress, discomfort and debilitating symptoms from which she was suffering. That fact had been recognised by the plaintiff’s general practitioner, Dr. Ward, who was very concerned by her condition and distress. She provided the plaintiff with a letter recommending admission to hospital.
On successive days, (20th and 21st December, 1999), the plaintiff was examined in the hospital, (by Dr. Lobo and by Dr. Long respectively). Contrary to appropriate, proper and approved medical practice she was not admitted to hospital on either occasion but was simply prescribed an increased level of steroidal medication and advised to return home.
In consequence, she suffered severe pain, distress and symptoms causing her acute misery for approximately nine days, during which her condition deteriorated dangerously.
Whilst the ulcerative colitis from which the plaintiff suffered was likely to have caused her distressing and unpleasant symptoms from time to time, it is undeniable on the evidence that the failure by Dr. Long and by Dr. Lobo to adequately and properly manage the plaintiff’s colitis at that time and to provide her with appropriate care, attention and treatment caused the plaintiff unnecessary and untold additional hardship, pain, discomfort and misery which resulted directly from negligence and breach of duty on the part of Dr. Long and the hospital.
I accept the unchallenged evidence of Dr. Andrew Neale that the proper management and treatment of ulcerative colitis in a 15 year old child requires constant communication and consultation with the child and with her family during the management and treatment of the disease. I accept also the unchallenged evidence of Dr. Dermot Kelleher that social embarrassment associated with ulcerative colitis is of considerable significance and should be taken carefully into account in the management and treatment of the condition.
Dr. Long stated in evidence that he was well intentioned towards the plaintiff and her family and was under the impression that he was communicating adequately with the plaintiff. However, on the evidence there was a serious failure in communication and consultation between Dr. Long and the plaintiff and between Dr Long and the plaintiff’s family in relation to the management and treatment of the plaintiff’s colitis.
I am satisfied that this failure of communication and consultation was grave and significant and can be categorised as a failure which should not be expected of a consultant physician of Dr. Long’s status and specialist skills. I accept the evidence of Dr. Neale that communication and consultation with the plaintiff and her family was essential to the management and treatment of the plaintiff’s colitis. I accept also his evidence that common sense dictates the importance of such consultation and communication and the overriding requirement that the pain, distress, embarrassment, humiliation and misery of a child with ulcerative colitis should be reduced to the lowest possible level.
I am satisfied on the evidence that Dr. Long and the hospital repeatedly failed in their obligation to communicate and consult with the plaintiff and her family during the management and treatment of the plaintiff’s colitis and that in doing so they were guilty of negligence and breach of the duty of care owed by them to the plaintiff. This negligence and breach of duty caused a severe deterioration in the quality of the plaintiff’s life and lifestyle and caused her to discontinue her education and to suffer extremely inappropriate and unnecessary distress, embarrassment, humiliation, upset and misery.
More importantly, it was established on the evidence that the level of communication between the defendants and the plaintiff and her parents should have been sufficient to encourage the plaintiff and her parents to report significant changes in the nature and level of the plaintiff’s symptoms to the defendants without delay. On the evidence, the plaintiff and her parents were made to feel uncomfortable about such reporting and were, accordingly, discouraged from doing so. This had significant consequences for the plaintiff.
It was established in evidence that Dr. Long was not on duty in the hospital during the three-day period between the 29th April and the1st May, 2000, which was a Bank Holiday weekend. It was, however, acknowledged by Dr. Long and by the other expert medical witnesses that it was necessary in the interests of the proper and appropriate management and treatment of the plaintiff’s disease and the very severe symptoms from which she was suffering that she should be investigated by a physician at consultant level. This was not done at any time whilst the plaintiff was in hospital, (until her discharge by Dr. Long on the 2nd May, 2000).
It was also candidly acknowledged by Dr. Long and by the expert medical witnesses who testified in these proceedings that this failure comprised a serious departure from the medical standards required for the proper treatment of patients with colitis. I am satisfied on the evidence that it was the responsibility of the hospital to take reasonable steps to ensure that appropriately qualified medical practitioners are available to treat patients who are admitted to the hospital in emergency circumstances of the kind that gave rise to the plaintiff’s admission on the 29th April. The hospital failed to do so.
I am, accordingly, satisfied on the evidence that by failing to provide the plaintiff with the services of an appropriately qualified consultant physician or surgeon whilst she was a patient in the hospital between the 29th April, 2000 and 2nd May, 2000, the hospital failed to manage and treat the plaintiff’s colitis with the level of care and skill commensurate with the hospital’s resources, status and responsibilities.
Dr. Long was negligent and in breach of his duty to the plaintiff by failing to consult the hospital documentation and to adequately monitor the medication which had been prescribed for the plaintiff and in particular to note that Difene which had been prescribed for the plaintiff and to cancel or otherwise discontinue its prescription. The hospital departed from general and approved medical practice in the management of the plaintiff’s colitis by causing or permitting the prescription of Difene for the plaintiff while she was in hospital between the 29th April and 2nd May, 2000 and after her discharge from the hospital on the 2nd May, 2000.
Difene was prescribed as a form of treatment for the plaintiff’s colitis during February, 2000. It has not been established on the evidence as a matter of probability that it was necessarily Dr. Long who prescribed Difene on behalf of the plaintiff. It might have been a junior doctor within the hospital, or the plaintiff’s general practitioner.
It has, however, been established on the evidence that Difene should not have been prescribed as a form of treatment for the plaintiff’s colitis because it is a drug which is linked to ulceration of the colon and is therefore quite inappropriate by way of medication for a person suffering from ulcerative colitis.
Accordingly, by prescribing Difene for the treatment of the plaintiff during her admission to hospital on the 29th April, 2000, the hospital, through its medical staff, departed significantly from appropriate and approved medical practice for the management and treatment of ulcerative colitis and was, accordingly, negligent and in breach of its duty to the plaintiff.
However, whilst it has been established on the evidence that Difene is an inappropriate form of medication for the treatment of colitis and is a potential contributory factor in the development of colon perforation, it has not been established on the balance of probabilities that the Difene prescribed as treatment for the plaintiff’s colitis in April and May, 2000 directly caused the perforation of her colon less than a week later.
The evidence has also established that the appropriate management of the plaintiff’s colitis on the 2nd May, 2000, required that she should have been advised, on discharge from the hospital, to immediately contact the hospital in order to seek admission if her condition deteriorated in the days following her discharge. Tests had disclosed that, whilst in hospital, her platelet levels and white blood cell count were excessively high. She had continued to require medication to control severe pain throughout her confinement in hospital and was discharged on the 2nd May. Dr. Long failed in his obligation to give that advice to the plaintiff and to members of the plaintiff’s family. No other consultant examined the plaintiff whilst she was in the hospital on that occasion.
It has been clearly established in evidence that the plaintiff’s mother was given wholly inappropriate and improper advice at approximately 11.30 p.m. on the night of the 8th May, 2000, when she telephoned the hospital in distress and desperation, seeking assistance and advice in relation to the plaintiff’s deteriorating condition.
I accept, without qualification, the evidence of the plaintiff’s mother and of the plaintiff herself in relation to the telephone call made by the plaintiff’s mother to the hospital on the night of the 8th May, 2000. The evidence adduced in these proceedings has consistently and repeatedly disclosed the proximity of the relationship between the plaintiff and her mother and the constant and meticulous care, support and attention provided for the plaintiff by her mother. The evidence adduced disclosed an increasing level of concern and worry by the plaintiff’s mother in respect of her daughter’s deteriorating condition and a failure by Dr. Long and the hospital to address that concern and worry.
The decision, by the plaintiff’s mother, to telephone the hospital at approximately 11.30 p.m. on the night of the 8th May, 2000, was understandable having regard to the plaintiff’s deteriorating condition and symptoms. It was a decision consistent with an increasing level of worry, concern and indeed, desperation on the part of the plaintiff and her mother.
Evidence was adduced on behalf of the hospital by three nurses who were employed in the hospital in April and May of 2000. The evidence adduced comprised the production of hospital records indicating that the three nurses who testified were on duty in the casualty department of the hospital on the night of the 8th May, 2000.
Unsurprisingly, none of the nurses recalled a telephone call made by the plaintiff’s mother to the hospital on the night of the 8th May, 2000.
Each of the nurses stated that it would be wholly improper and inappropriate for a nurse on duty in the hospital at the time in question to have given advice to the plaintiff’s mother of the kind which she said she received. Each nurse said that, in the circumstances outlined by the plaintiff’s mother, an appropriately trained and qualified nurse should have advised that the plaintiff should be brought to the hospital for admission or to her general practitioner urgently and immediately.
Each nurse agreed that advice of the kind received by the plaintiff’s mother, if offered, would have been contrary to the proper and appropriate nursing and medical practice at the material time. Each agreed that if they had received the telephone call described by the plaintiff’s mother, they would definitely have advised the plaintiff either to come to the hospital for immediate admission and treatment or to immediately take the plaintiff to her general practitioner for urgent attention and treatment.
It is not possible for this Court to establish; (a) whether the hospital’s records for the night of 8th May, 2000 are accurate, (b) if the nurses who testified in these proceedings were the only persons who could have answered the telephone in the casualty department of the hospital on the night of the 8th May, 2000, or (c) if one of the nurses who testified did in fact answer the telephone and give the plaintiff’s mother advice on the 8th May, 2000.
It is, however, possible for this Court to be satisfied on the evidence and on the balance of probabilities that the plaintiff’s mother did in fact telephone the hospital and did in fact provide the person to whom she spoke with details of the plaintiff’s medical history and her alarmingly deteriorating condition and symptoms. This Court is so satisfied.
It is also possible for this Court to be satisfied on the evidence and on the balance of probabilities that, if the plaintiff’s mother was advised by the hospital on the night in question to bring her daughter to the hospital for immediate admission or to take her daughter to her general practitioner for immediate treatment, the plaintiff’s mother would unquestionably have taken that advice and followed the course suggested.
I am satisfied on the evidence and on the balance of probabilities that the plaintiff’s mother; (a) did in fact telephone the hospital when she said she did, (b) was not advised to bring the plaintiff for immediate admission to hospital or to take the plaintiff to her general practitioner, and (c) took the advice which she was given on the telephone which was to give her daughter two Paracetamol tablets and to contact her general practitioner on the following morning.
It follows from the evidence of every medical witness who testified in these proceedings that the person who answered the telephone in the casualty department of the hospital on the night of the 8th May, 2000 departed radically from general and approved medical practice; (a) in giving the advice which was given to the plaintiff’s mother and (b), in failing to advise the plaintiff’s mother; (i) to bring the plaintiff immediately to the casualty department of the hospital for admission or, (ii) to bring the plaintiff to a properly qualified medical practitioner without delay for immediate investigation and treatment.
It follows further that the failure by the hospital and its staff to provide the plaintiff and her mother with proper and appropriate medical advice on the night of the 8th May, 2000, comprised clear and serious negligence by the hospital and a breach by the hospital of its duty to provide proper advice, care, management and treatment to the plaintiff in respect of her ulcerative colitis.
CAUSATION
I have found that Dr. Long and the hospital failed, on a number of occasions and in a number of respects, to manage and treat the plaintiff’s colitis with the care and skill required of a medical practitioner and a hospital of the status and specialist skills enjoyed by Dr. Long and by the hospital.
On some of those occasions the plaintiff was subjected to greater levels of distress, humiliation, degradation, discomfort and misery than would have been the case if her colitis had been managed and treated by the application of general and approved management and treatment methods. They were incidents of negligence and breach of duty which had discrete and temporary consequences for the plaintiff.
However the most important question for determination by this Court is whether negligence and breach of duty on the part of Dr. Long or the hospital, or both, caused or contributed to the perforation of the plaintiff’s colon and the dreadful consequences which that event had for the plaintiff’s health and welfare.
Although there was considerable discussion within these proceedings relative to the prescription of Difene and Buscopan for the plaintiff in the management and treatment of the plaintiff’s colitis and it was established in evidence, that Difene should not have been prescribed for the plaintiff because of its link with ulceration of the colon, it was not established on the balance of probabilities that the prescription of Difene either in February, 2000 or during and after her admission to hospital on the 29th April, 2000 directly caused the perforation of the plaintiff’s colon approximately a week later.
Similarly, whilst Dr. Neale disapproved of the prescription of Buscopan because it masked potentially significant symptoms associated with ulcerative colitis it was not established in evidence that the prescription of Buscopan was centrally relevant to the perforation of the plaintiff’s colon in May, 2000.
Although an x-ray of the plaintiff’s colon undertaken after the plaintiff’s admission to hospital on the 29th April, 2000, disclosed no evidence of a megacolon, the evidence has established that the prediction of the onset of peritonitis is known to be difficult and that a patient, such as the plaintiff, who is suffering from ulcerative colitis and has had a history of the exacerbation of that condition, must be monitored carefully and consistently in order to reduce the risk of a colon perforation. For that reason they must be warned to report deterioration in their condition or an increase in the level of pain or other symptoms so that they can be investigated expeditiously.
I have found that Dr Long and the hospital were negligent because, when discharging the plaintiff from hospital on the 2nd May, 2000, they did not advise her to immediately contact the hospital to seek admission in the event of an exacerbation of her colitis.
I am satisfied that if that warning had been administered to the plaintiff or to her mother then, as a matter of probability, the plaintiff or her mother would have contacted the hospital at or before the time when her pain level reached what was described by Dr. Neale as “this crescendo of pain during the afternoon and evening of the day before she was admitted to hospital”.
Central to the issue of causation in this case is the time at which the plaintiff’s colon perforated.
Dr. Neale was unwilling to give an authoritative opinion in relation to the time of perforation. When pressed by Mr. McGrath S.C., he said that he thought that it might have occurred “about 24 hours before the operation at the time when Ms. Myles suffered this crescendo of pain during the afternoon and evening of the day before she was admitted to hospital”.
Professor Alexander Williams was of the opinion that the perforation could have occurred within 28 or 48 hours prior to the surgery performed by Ms. Mulcahy on the 9th May.
Professor Dermot Kelleher was of the opinion that the perforation occurred “the day before admission, based on the fact of severe pain at the time”.
Mr. Paul Durdey believed that the perforation occurred “when Ms. Myles felt the popping sensation in her abdomen” at approximately 10.00 a.m. on the morning of the 9th May. He gave detailed reasons why he had reached that conclusion.
Dr. Luke O’Donnell was also of the opinion that the “moment of the perforation” was at 10.00 a.m. on the morning of the 9th May, when the plaintiff felt a sensation “like an explosion” and “felt something pop inside me …”.
Mr. Joseph Deasy also believed that the “time of the perforation” was approximately 10.30 a.m. on the morning when the plaintiff felt what she described as “an explosion” or “popping sensation” followed by vomiting and the release of black liquid material from her body.
Ms. Ursula Mulcahy thought that the peritonitis might have occurred “somewhere in the region of 24 hours” before surgery. She said that it “…wasn’t a question of perforating and then being rushed straight to theatre. It looked as though the perforation had been going for some time. If you were trying to pin me down to a precise time … I’m afraid I couldn’t …”
When asked whether the perforation occurred when the plaintiff experienced the sensation of an “explosion” and the “popping” sensation, she replied “It could be, yes”.
I accept without qualification her evidence that “The sooner you get a perforation operated on, the better the outlook and the less adhesions you are likely to get afterwards …they couldn’t do a pouch because of the adhesions and I don’t think anybody could give you a definite answer but there probably would have been fewer adhesions if she had been operated on earlier”.
It is undeniable that at approximately 10.00 a.m. on the morning of the 9th May, 2000, the plaintiff underwent a sudden acute medical event. Dr O’Neill was immediately summoned. He found that her condition was so grave that she was close to death.
It is also undeniable that if the plaintiff had been admitted to the hospital on the night of the 8th May, 2000, (as she should have been), and investigated and treated appropriately, the sudden acute event which occurred at 10 a.m. on the morning of the 9th May, 2000, would not have occurred.
I am satisfied on the evidence of Ms. Mulcahy, Mr. Deasy, Mr. Paul Durdey, and Dr. Luke O’Donnell that, whilst the process of perforation may have commenced during the afternoon or evening of the 8th May, 2000, it is probable that the plaintiff developed a toxic megacolon which perforated or “burst” at approximately 10.00 a.m. on the morning of the 9th May, 2000.
The process resulting in perforation caused a gradual deterioration in her condition and increase in the level and severity of her symptoms. The “precise moment of perforation” was probably the moment at approximately 10.00 a.m. on the morning of the 9th May, when the plaintiff felt the “explosion” and a “popping sensation” which had such immediate, unpleasant and grave consequences for her. In either event, if the plaintiff and her immediate family had been advised, (as they should have been), to immediately contact the hospital if her condition deteriorated, it is probable that her mother would have done so at the commencement of the process which resulted in perforation.
It was alleged on behalf of the plaintiff that Mr. Long should not have discharged the plaintiff from hospital on the 2nd May, 2000, because of her condition and symptoms.
There was a difference of medical opinion on this issue. And accordingly, it has not been established on behalf of the plaintiff that Dr. Long was negligent or in breach of duty by discharging the plaintiff from the hospital when he did so.
However the evidence adduced in this case has established that, having regards to; (i) her medical history, (ii) her white cell and platelet levels and (iii) her ongoing symptoms, both she and her family should have been advised to contact the hospital in order to seek admission if her condition deteriorated in the days following her discharge. Had she done so then, it is probable that the plaintiff would have been admitted to hospital and properly investigated more than 24 hours before she was in fact admitted to hospital. It follows that if general and approved medical practice had been followed in the management and treatment of the plaintiff’s colitis then she would have been admitted to the hospital at least 24 hours before she was in fact admitted and surgery would have been undertaken at least 24 hours before it was in fact undertaken.
It is possible that some perforation or leakage might have occurred before her admission and before surgery could be undertaken and I am conscious of the evidence of Ms. Mulcahy which established that even the commencement of a perforation which results in the leakage of a faecal material is likely to cause permanent damage. However, as I have already indicated I accept without qualification Ms. Mulcahy’s evidence that “the sooner you get a perforation operated on, the better the outlook and the less adhesions you are likely to get afterwards…. they couldn’t do a pouch because of the adhesions and I don’t think anybody could give you a definite answer but there probably would have been fewer adhesions if she had been operated on earlier.”
It is probable that if the plaintiff suffered some permanent damage and adhesions resulting from early leakage, the damage and the resultant adhesions would have been reduced to a minimum and it is probable that septic complications would have been reduced considerably, if not eliminated and she would not have suffered thrombosis.
It is probable also that, in that event, it would have been possible for the plaintiff to undergo two further operations to complete an ileal anal anastomosis. This would have provided her with normal continuity of gastrointestinal tract with no stoma.
It has been established on the evidence that even if the plaintiff’s colitis had been managed and treated properly and appropriately and in accordance with general and approved medical practice, the quality of her life would nonetheless have been significantly reduced because of the nature of ulcerative colitis.
However, because her disease was not properly managed and treated she suffered distress, humiliation, degradation, pain and discomfort on a number of discrete occasions and finally she suffered a near catastrophic perforation of her colon. These events were caused by negligence and breach of duty on the part of Dr. Long and on the part of the hospital.
Mr. McGrath S.C. requested that, in the event of findings of negligence, I should apportion degrees of fault as between Dr. Long and the hospital. No reliable scientific evidence is available which would enable me to measure levels of fault in the manner requested.
I am satisfied that failure in communication and consultation between Dr. Long and the plaintiff and her family was attributable to Dr. Long’s negligence.
Similarly I am satisfied that the pain, distress and other symptoms from which the plaintiff suffered between the 20th December and the 31st December, can be attributed to Dr. Long’s negligence.
I am also satisfied that the failure to advise the plaintiff and her family on the 2nd May, 2000, that the hospital should be contacted immediately in the event of a deterioration in the plaintiff’s condition and symptoms can be attributed to Dr. Long’s negligence. That failure was of significance in relation to the perforation of the plaintiff’s colon.
However, I am satisfied on the evidence and on the balance of probabilities that the most serious breach of duty which has been established in these proceedings has been the failure by the hospital to give proper and appropriate advice to the plaintiff’s mother when she telephoned the hospital at 11.30 p.m. on the night of the 8th May, 2000, seeking urgent assistance for her daughter. .
Insofar as I can apportion fault, I would attribute 35% to Dr. Long in respect of the incidents to which I have already referred to and in respect of his failure to administer an adequate warning to the plaintiff and her family on the 2nd May, 2000. I would apportion 65% of fault to the hospital for the reasons for which I have outlined.
As I have indicated the apportionment which I have made has not been based upon any particular scientifically reliable evidence. In short it is rudimentary in nature and the best that I can do in the circumstances.
Damages
As I have already indicated, the nature of the ulcerative colitis from which the plaintiff suffers decreed that the quality of her life would have been significantly diminished by reason of the disease from which she suffers.
However by reason of the negligence and breach of duty of Dr. Long and the hospital she has additionally suffered; (a) serious and unnecessary distress, embarrassment, humiliation, upset and degradation which caused her to discontinue her education, (b) excessive and severe pain, distress and other unpleasant symptoms which caused her condition to deteriorate dangerously between the 20th December and the 30th December, 1999, and (c) a toxic megacolon which perforated or “burst” at approximately 10 a.m. on the morning of the 9th May, 2000.
The development and perforation of the toxic megacolon had appalling consequences for the plaintiff. These have been fully outlined earlier. If her colitis had been properly and adequately managed and treated she would have been admitted to hospital at least 24 hours before she was in fact admitted and the toxic megacolon would not have perforated. Surgery would have been performed before the perforation and would have been far less extensive than what was required to be performed by Ms Mulcahy. The majority of the complications, infections, intestinal fistulae, chronic adhesions and other dreadful consequences which the plaintiff suffered would have been avoided.
It is also unlikely that she would have developed and suffered from such a large number of related conditions including pulmonary emboli, MRSA, rectal symptoms, breathing problems, urinary incontinence and the other complaints and conditions described earlier.
She would probably not have had to endure two separate surgical attempts to form an ileal pouch and two surgical failures. She would probably not have to live the remainder of her life relying upon a permanent ileostomy.
She would not have had to suffer extremely disfiguring scarring which causes her such embarrassment. She would probably not have had to face the prospect of a life without a satisfactory personal or sexual relationship and a poor prognosis for childbearing.
She would not have suffered from post-traumatic stress disorder and require ongoing treatment by way of psychotherapy and pharmacotherapy.
She would probably have completed her Leaving Certificate and have pursued a career in computer skills enabling to her to obtain full time employment at her chosen occupational career.
It is difficult to assess the level of general damages which should be awarded to the plaintiff to compensate her for what she has endured during the past seven years by reason of the negligence and the breach of duty of the defendants. She was seventeen years old or thereabouts when most of these events occurred. Her life had already been blighted by a serious and distressing disease. She faced the prospect of surgery at an early date comprising a total colectomy leaving the rectal stump. She would have required two further operations to complete an ileal anal anastomosis to provide her with normal continuity of gastrointestinal tract with no stoma.
However her disease could have been managed and treated effectively on an ongoing basis and she could have lead a more or less normal life, married and have borne children if she had so wished. She now faces further “daunting” surgery for the removal of her rectal stump and the many disadvantages which have already been outlined in detail.
The plaintiff is entitled to damages to compensate her for the events which caused her such distress in 1999 and resulted in her discontinuing her education.
She is also entitled to damages to compensate her for the pain, discomfort and other unpleasant symptoms which she suffered between the 20th December, 1999 and the 30th December, 1999.
She is entitled to damages to compensate her for the increased pain, distress, surgery, infection, disease, psychological damage and constant admissions to hospital which has characterised her life for most of the period of seven years which has elapsed since the events of May, 2000.
Even if her disease had been properly and appropriately managed and treated, the plaintiff’s colitis would have comprised a very serious and ongoing blemish upon her life and would have significantly diminished the quality of her life. For that reason the additional injuries which she has now suffered can be categorised as catastrophic.
In Sinnott v. Quinnsworth Limited [1984] I.L.R.M. 523 the Supreme Court (O’Higgins C.J.), reduced a jury award of IR£800,000 for general damages to IR£150,000. The plaintiff was a young man who had suffered injuries in a road traffic accident which left him paraplegic.
O’Higgins C.J. observed, (at pp 531to 532), that “In my view, unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.”
Contemporary standards may well require to be reconsidered in the light of the recent decision of the Supreme Court (Hardiman J.) in Shortt v.Commissioner of An Garda Siochana [2007] IESC 9. However, no evidence of contemporary standards was adduced in these proceedings and no detailed argument on that issue was advanced on behalf of either party.
The appropriate “cap” on the level of general damages for very serious or “catastrophic” injuries has been reconsidered on a number of occasions since 1986
In Kealy v. Minister for Health [1999] 2 I.R. 456, the High Court (Morris P.) awarded general damages of IR£250,000 to a 44 year old lady who suffered from Hepatitis because she had been injected with a contaminated vaccine. Her condition had caused her very significant symptoms including the substantial risk of a liver transplant. She had a 15% to 20% prospect of cirrhosis developing in the transplant. Morris. P. observed (at p.458 of his judgment) that the “cap” on general damages imposed by the Supreme Court in Sinnott had “only limited relevance to an award of this type.”
In assessing general damages for very serious or catastrophic injuries, the courts have been careful to take into account a number of factors including; (a) the fact that the catastrophic nature of the injuries may be such that no award of damages will be adequate to compensate the injured plaintiff, (b) that in awarding general damages the court should attempt to take a detached and objective approach and consider the full award on a “global” basis, taking into account any additional awards of damages to the plaintiff including sums to compensate for past and future care, past and future loss of earnings and other special damages and (c) that there should be no punitive element in the award of general damages, (punitive or exemplary damages may be sought separately in the limited number of special cases).
Taking those factors into account and applying the principles identified by the Supreme Court in Sinnott v. Quinnsworth Limited (supra) and other more recent authorities, and applying contemporary standards as best I can, I would assess at €125,000 the general damages which the plaintiff is entitled to recover from the defendants for what she has suffered between 1999 and the date of trial.
Applying the same principles and factors in respect of the general damages which the plaintiff is entitled to recover from the defendants to compensate her for the ongoing pain, suffering, distress, surgery, and psychological injury which she will suffer for the remainder of her life I would assess the damages to which she is entitled at €175,000.
In respect of loss of earnings from September, 2003 (when the plaintiffs would have expected to commence full time employment), to the date of trial, I am satisfied on the evidence and on the balance of probabilities that the difference between what she has earned during that period and what she might reasonably have expected to earn had she not endured what she has had to endure is of the order of €25,000 and I will award her that sum.
In respect of loss of earnings into the future I have, in line with the principles identified by the courts in that regard, been assisted by the actuarial evidence adduced in the case as a guide and not as a precise calculation of the plaintiff’s loss of earnings in the future. I am satisfied on the evidence that she is likely to sustain a loss in the region of €100 per week from now until she reaches the age of 65 years. Accordingly I will award her the sum of €150,000 to compensate her for that loss. For future medical expenses I will award her the sum of €27,700.
The plaintiff is, therefore, entitled to judgment in the amount of €502,700.
Kelly v Lacey
[2007] 1 I.E.H.C. 265JUDGMENT of Mr. Justice Brian McGovern delivered on Tuesday 24th July, 2007
1. This case is for assessment of damages only. The plaintiff was born on the 23rd February, 1991 and is now 16 years of age.
2. On the 1st August, 2004 the plaintiff was walking on the footpath at Carcur in Wexford when she was struck by a car driven by the first named defendant and owned by the second named defendant. It was a horrific accident in which the plaintiff and a number of her friends were knocked down and the plaintiff herself was pinned under the car for some time afterwards.
3. The plaintiff suffered severe wounds to her abdomen and her left leg. She also suffered injuries to her left forearm and fingers and to the right side of her face. Mr. Mealy the consultant surgeon who treated her in hospital described her injuries as “…massive abrasions and lacerations to her neck, back, chest and abdominal wall. Ms. Kelly also sustained lacerations to her liver and full thickness burn to her left leg.” It seems that the burn on the left leg was caused by prolonged contact with the exhaust or some other hot part of the car while she was pinned underneath it. The burn extended right down to her shin bone. For this injury the plaintiff required skin grafts. The donor area was her left thigh and there are noticeable scars where the skin grafts were harvested. These are likely to remain permanent. The leg injury itself is grossly disfiguring involving a substantial portion of her shin and with a huge indentation. This has resulted in a lack of padding or subcutaneous tissue and the texture of the skin is quite different to the surrounding leg. Nothing can be done to improve the situation. The actual disfigurement of her leg and the cosmetic deformity rules out many normal forms of clothing which would be worn by the plaintiff not only in her teenage years and as a young woman but throughout her life. This is a source of great upset to her.
4. The plaintiff’s other injuries can be summarised as follows:-
Near her lower lip on the right side of her face there are scars which are pale and not very obvious although they are visible at conversational distance. Above her right collar bone there is a pale triangular scarred area measuring approximately 6.5 cm x 1.5 cm. This scar is quite obvious and disfiguring and again is in a place which would be visible if the plaintiff was wearing any clothing which was “off the shoulder” or involving narrow shoulder straps. Again this is a matter of great upset to the plaintiff and significantly limits her both now and in the future as to her choice of clothing.
5. Across the front of her chest and breast there are several vertical linear scars and some of them are pigmented. The entire front of her abdomen is scarred and the scars run across the width of the abdomen with marked scarring on the left side where a drain was inserted while she was in hospital. On the left side of her abdomen is a deeper area of scaring. On her right shoulder blade there is a 4 x 4 cm triangular patch of scarring which is pink in appearance and has a dirt-ingrained edge to it. This is obvious and unsightly. In the lower thoracic region of the back there are a number of linear scars which are pale in appearance but easily noticeable. On her left knee there is a pale scar with indistinct borders around the remedial and superior aspect of the left kneecap which is visible at conversational distance. On the back of her left thigh there is a triangular scar approximately 3 x 3 cm which is discoloured.
6. I have been furnished with a number of medical reports which are agreed between the parties. Mr. Michael Early and Mr. Matt McHugh consultant plastic surgeons both express the view that the scars are permanent and that the best that could be hoped for would be some slight improvement by treating some of the pigmented scars by means of laser therapy. But neither surgeon offers any assurance as to the outcome and it is clear that even such laser treatment would be of minimal benefit.
7. In short the plaintiff is left with an extremely scarred and disfigured body for the rest of her life.
8. I observed the plaintiff give evidence and she was visibly upset when describing the affect the accident has had on her. She does not want to go swimming any more with her friends or does want to go to the beach. She is severely restricted in the type of clothing she can wear and does not like to go shopping with her friends. She is deeply upset with her body image which is completely understandable. Mr. Matt McHugh the consultant plastic surgeon gave evidence and described her injuries as “dreadfully disfiguring”. He also described how the indented scar on her left leg could break down in the future because of lack of padding underneath it. He said that as a matter of probability there would be complications with this leg in the future and she must be extremely careful of it. She is no longer able to take part in contact sports. If she bumps her leg at the location of the scar, the scar could break down and become ulcerated and lead to other problems. The plaintiff’s mother described how the injuries have affected the plaintiff and gave a graphic description of the plaintiff’s days in hospital following the accident when her extensive wounds had to be dressed and when she required skin grafts for her left leg injury. The plaintiff was on a morphine pump for a time while she received such treatment.
9. The plaintiff has been greatly upset by the injuries which she has sustained. The only positive thing that could be said is that her facial scaring is not of great significance or disfigurement so that when she dresses in a way that allows her body to be covered she is not a person who appears to be disfigured to a significant extent. I am also satisfied from the medical evidence that she does have full mobility.
10. The plaintiff was treated at Wexford General Hospital and Mr. Kenneth Mealy the consultant surgeon who treated her is of the view that she made a good physical and emotional recovery following the accident. I have read a report from Ms. Alice McLoughlin a psychologist and counsellor who says that as the plaintiff was at a vulnerable age of 13 at the time of the accident the psychological trauma of being scarred and living with marks on many parts of her body has been particularly pronounced. She says that adolescents are most focused on physical appearance and body image and accordingly the plaintiff has been greatly affected by her scarring. She does however say that the plaintiff has made considerable progress with counselling and has many good periods as she moves on with her life and generally sleeps well at night. But when she is stressed due to normal life experience such as exam pressure or difficulties with peers the trauma of the accident tends to be reawakened. Ms. McLoughlin says that the plaintiff is copping well but that times of stress trigger memories of the trauma. While giving evidence the plaintiff became visibly upset on a number of occasions although she was able to compose herself.
11. In the course of the hearing the plaintiff was brought by her solicitor Ms. Geraine O’Loughlin into my chambers with Mr. Matt McHugh who pointed out the scars on her body.
12. In assessing the general damages in this case I am balancing, on the one hand, the fact that the plaintiff has suffered grossly disfiguring injuries to her body and, on the other hand, she is not suffering any significant physical disability in terms of her general mobility, and I also taken into account that when dressed in a manner which covers the scars on her legs and her abdomen she presents as an attractive and normal looking 16 year old girl because the facial scarring is quite pale and not noticeably disfiguring.
13. Having said that I am quite satisfied that the injuries which she sustained were quite horrendous. Not only were they extremely painful in the immediate aftermath of the accident and during the course of her treatment but she had survived a most frightening accident in which her life was at risk. Her body has been grossly disfigured by the accident and while many of the injuries can be covered up this cannot diminish the grievous problems the plaintiff has and will have for the rest of her life on the issue of her body image. She cannot dress in the way that most of her peers dress and in the way she would like to dress. She will never be able to dress or buy clothes with the freedom that other women of a similar background to her can do. In short the accident has had and will have a profound affect on her life for which she can only be compensated by substantial damages.
14. For pain and suffering to date I award a sum of €150,000. For pain and suffering into the future I award €150,000. The special damages have been agreed at €18,275 and I also award that sum.
McCluskey v Dublin City Council [2007] I.E.H.C. 4, JUDGMENT of Mr. Justice de Valera delivered on the 26th day of January, 2007.
I am satisfied that on the 18th July, 1987, at about 9.30 p.m. or a little later the plaintiff fell on a defective pavement at Botanic Road between Phibsborough and Glasnevin just outside 30/32 Botanic Road.
I accept the plaintiff’s evidence and that of Mr. Carroll as to the circumstances of the plaintiff’s fall. I will deal with the damages arising from the injuries sustained by the plaintiff later in this judgment.
The location at which the plaintiff fell and which at the time of his fall constituted an irregular subsidence below the level of the adjoining pavement had been the subject of excavations previously.
The plaintiff knew the area quite well; at the time of his fall it was still bright (being July) and he cannot have been keeping a sufficiently careful lookout. It is inevitable from the condition of the path at the time of his fall that the surface had been defective for some considerable time.
It is clear that the excavation when last opened had not been properly reinstated after the work was carried out, subsidence occurred as a result of ordinary usage of the footpath (the reinstatement being unable to properly cope with ordinary pedestrian traffic) ultimately causing the hazard over which the plaintiff fell.
The question that rises from this is which defendant, last, worked on this area and therefore was responsible for filling in the hole without taking proper care to ensure that this work was correctly completed.
At this point the off quoted dictum of Sir Arthur Conan Doyle attributed to Sherlock Holmes comes to mind:
“When you have eliminated the impossible, whatever remains, however improbable, must be the truth.”
bearing in mind that I must decide, in this matter, on the balance of probabilities.
It is, I confess freely, most difficult to reach a decision in this matter even on that standard of proof and the scales have tipped barely in the direction of my decision.
I am siding the matter as between An Bord Gáis and NTL Communications (Ireland) Limited – I do not consider on the basis of the submissions made to me that Dublin City Council has any liability in this matter (at the most their involvement could only constitute nonfeasance) and the Electricity Supply Board and Eircom Plc. have not been the subject of any evidence.
It is clear that the defective area over which the plaintiff fell had been the subject of works by both An Bord Gáis and NTL (and its predecessors) on the basis of the evidence, particularly that of Mr. Meade. When the exploratory investigation was made in August, 2000, the first evidence of work was a cable, which it is accepted, belonged to Cablelink/NTL. Below this, at a deeper level was the gas piping involved in the supply to no. 32 Botanic Avenue installed by An Bord Gáis.
This indicates to me that on the balance of probabilities the last entity to work in this excavation, and therefore the one who filled in the hole, was NTL. This work was clearly inadequate and, ultimately, the cause of Mr. McCluskey’s fall. However as I have already stated Mr. McCluskey must accept that his failure to keep a proper lookout has contributed to the damage he has suffered and I assess his contributory negligence at 30%.
Mr. McCluskey suffered injuries to:
(a) His right wrist.
(b) His left hand.
The wrist injury was the more serious and the plaintiff was not finally discharged from Mr. Walsh’s (his orthopaedic surgeon) care until September, 1999. Though this was a serious injury I am satisfied that there is no immediate evidence of the onset of arthritis and on the balance of probability no such deficit will occur.
On the basis of all the medical reports submitted to me, including the report from Roger Leonard the occupational therapist who gave evidence on Mr. McCluskey’s behalf, I think it is reasonable for Mr. McCluskey to assert that for a period of a further nine months after discharged by Mr. Walsh he was unable to work to his pre-accident standard.
However I am satisfied that from that time he was able to undertake all work to his pre-accident standard, and, on the basis of his vocational report even if he did not want to return to his pre-accident work as a window fitter (and I don’t accept this would have been physically beyond his powers) he is capable of many other forms of endeavour which would remunerate him to the same or to a greater extent than before and in today’s economic conditions I find it impossible to accept that such jobs are not obtainable by Mr. McCluskey.
Therefore the damages to which Mr. McCluskey are entitled are as follows:
(a) General damages to date €35,000.
(b) General damages into the future €15,000.
I do not accept Mr. McCluskey’s claim that he was earning €500 or more per week prior to the accident. Based on the revenue documentation it appears Mr. McCluskey was earning approximately €250 per week gross in the year prior to his fall.
On this basis I am prepared to allow Mr. McCluskey loss of earnings for 43 weeks at £185 per week which amounts to €10,180.
Therefore the total amount of damages to which Mr. McCluskey is entitled is €60,108 reduced by 30% because of his contributory negligence. The final figure amounting to €42,075.
O’Neill v Dunnes Store
[2007] I.E.H.C. 33,JUDGMENT of Mr. Justice Kelly delivered on the 21st day of February, 2007
Introduction
On the evening of 4th July, 2002, the plaintiff was assaulted by a man called Ciaran McCormack. The assault took place at a shopping centre in Thurles, Co. Tipperary. The plaintiff contends that the circumstances of that assault are such as to give rise to a liability on the part of the defendants to compensate him in respect of the injuries sustained by him. In order to appreciate how such a claim comes to be made it is necessary to set forth the facts of the matter in some detail.
The Plaintiff
The plaintiff is now 34 years old. At the time of the assault he was, and indeed continues to be, employed as a store man by a company called Premier Foods at Thurles, Co. Tipperary.
The Defendant
The defendant is the principal tenant of the shopping centre at Thurles, Co. Tipperary. It conducts a drapery, grocery and off-licence business there.
The Incident
At about 8.00 p.m. on 4th July, 2002, the plaintiff went to the defendant’s store. Whilst there he decided to telephone his grandmother to see if she wanted him to do any shopping for her. He went to a pay phone which is located at the back of the shopping centre. As he approached the rear entrance of the building a woman whom he did not then know said to him “help there’s been a robbery”. He subsequently learned that this lady is called Sadie Stapleton and was a cleaner in the shopping centre.
Responding to her cry and not knowing what to expect he continued to the rear of the building. There he saw Mr. Keith Byrne, a security officer employed by the defendant, involved in a struggle and holding a man named Alexander Colville against a wall outside the building.
He saw Colville reach for a bottle which he had in his pocket. The plaintiff said that Mr. Byrne called to him for assistance, a fact denied by Mr. Byrne.
In any event the plaintiff went to Mr. Byrne’s assistance. He thought that Colville was larger than Mr. Byrne. He went and assisted in holding Colville against the wall. Colville continued to struggle. The plaintiff prevented him from getting the bottle out of his pocket.
Mr. Byrne told him that the police had been notified and indeed that was so.
A Garda Delaney arrived on the scene.
The reason why the security officer was apprehending Colville was because he had witnessed Colville and McCormack (the assailant) whilst in the off-licence department of the defendant. He saw them taking bottles from the shelves and secreting them in the pockets of their jackets. He approached them and asked them for identity and explained that they were not entitled to be in the off-licence department since they both appeared to be under 18 years. McCormack produced a bogus identification document. Colville said that he would retrieve his from a car and ran from Mr. Byrne. He ran towards the rear of the shopping centre and was followed by Mr. Byrne. He caught up with him at the rear doors which were automatic and unable to accommodate Colville because of the speed at which he was running. Colville attempted to strike Mr. Byrne, who detained him. He put Colville’s arm behind his back and got him out of the shopping centre. It was at that stage that Colville attempted to take the bottle out of his jacket and to strike Mr. Byrne.
In his direct evidence Mr. Byrne told me that he saw Sadie Stapleton whilst apprehending Colville and shouted to her to get the manager to help him. In cross examination he said that he asked her to get him help. The version given in cross examination is more probably correct because it accords with Ms. Stapleton’s recollection of him saying “go and get help and call the guards”. In any event Ms. Stapleton then communicated with the plaintiff as I have already described and he responded to that call.
When Garda Delaney arrived on the scene at about 8.25 p.m. he found Colville being restrained by both Mr. Byrne and the plaintiff. Meanwhile McCormack had arrived at the scene but left more or less at the time of the arrival of the guard. The guard went after him and asked him to return, which McCormack did. The guard then proceeded to take particulars. Colville was very aggressive and was kicking and threatening and indeed struck the guard. Garda Delaney called for police backup. While all this was going on the plaintiff was helping to restrain Colville. McCormack interfered and tried to pull the guard away from Colville. He was directed by the guard to go away and he did so. The guard continued to try and deal with Colville, who was being held by Mr. Byrne, assisted by the plaintiff, when McCormack returned, this time brandishing a motorcycle chain. He drew out with the chain, swung it and struck the unfortunate plaintiff on the face. He drew out a second time, but missed on this occasion. At this stage police backup arrived and McCormack and Colville were arrested.
I am satisfied from the evidence that the assault on the plaintiff took place after the police backup arrived and not as was originally said in his evidence by Mr. Byrne, before that event. The version which I prefer is consistent with the account given by the guard and indeed with the statement made by Mr. Byrne on 5th April, 2002.
I must now consider certain factual matter which is pertinent to the defendant’s contention made both at the conclusion of the plaintiff’s case and at the end of the evidence to the effect that it bears no liability to the plaintiff for what occurred.
The Defendant’s Security Arrangements
The only evidence adduced by the defendant in relation to its security arrangements came from Mr. Byrne.
He is no longer employed by the defendant and now works as a bodyguard in Haiti.
He served in the defence forces for a period of three years. During that time he was attached to an infantry division but had special forces training dealing, inter alia, with unarmed combat.
The only training which he received from the time that he joined the defendant was confined to procedures to be followed by reference to a written protocol. The protocol was not put into evidence. That training was given on the job over a period of 12 months whilst he worked at the defendant’s Clonmel store. No training was given in Thurles. There may have been a similar protocol in Thurles but he never had occasion to refer to it. At the time of the incident he had been in Thurles for one and a half years. He said he knew the terms of the protocol by heart.
He accepted that the protocol provided that, if outnumbered, a security officer should get help.
Normally three security personnel would be on duty at the store. They consisted of the security manager, Mr. Byrne and a part-time security officer.
On the evening in question he was the sole security officer on duty. This was so despite the fact that the store was open for late night shopping on that occasion. The security manager had gone off duty at about 6.00 p.m. and there was no part-time security officer on duty.
As sole security officer he had responsibility for all three parts of the defendant’s store. That is to say drapery, grocery and off-licence.
When more than one security person is on duty each is equipped with a two-way radio. That permits of communication between the security staff at the touch of a button. As Mr. Byrne was on his own he was not carrying such equipment since there was nobody with whom to communicate. Consequently the only way in which he could communicate with any member of the defendant’s staff was by means of a mobile phone. That provides a much slower method of communication. He used his mobile phone on the evening in question to contact the police.
He admitted that the whole incident took about 20 minutes during which time he was unable to effectively communicate with anyone of the defendant’s staff. Neither did he receive any assistance from any member of such staff. The only help he got came from the plaintiff.
Conclusions on the Evidence
The security arrangements which the defendant had in place on the evening in question were substandard. To ask one person to take responsibility for the security of the entire of the defendants shop consisting of drapery, grocery and off-licence was not reasonable.
The absence of a two-way radio was a considerable impediment to Mr. Byrne being able to carry out his duty and deprived him of the ability to call for backup from the defendant’s personnel as a matter of urgency.
Mr. Byrne attempted to do his duty as best he saw it. Given that he was dealing with two intoxicated persons he would have been more prudent not to have attempted to detain Colville. He was alone and outnumbered. They were armed with bottles. It was very likely that the already violent Colville would be joined by McCormack when he was being arrested. Both were intoxicated.
Under the terms of the protocol he ought to have sought help rather than attempt an arrest.
I am satisfied that when he found himself dealing with a violent and resisting Colville he shouted to Sadie Stapleton to get help and to phone the guards. He also, I find as a fact, called on the plaintiff to assist him.
The plaintiff responded to that call and assisted Mr. Byrne in the manner described. He did so at the requests of Mr. Byrne and Ms. Stapleton, who made her request on the directions of Mr. Byrne.
Mr. Byrne was certainly in need of help. He was dealing with a violent and aggressive person who was armed with at least one bottle and was endeavouring to use it on Mr. Byrne. Colville was engaged in a joint endeavour with McCormack and although the latter was not present in the immediate vicinity of the arrest he was likely to arrive there very quickly and indeed did so.
The Legal Position
It is common case that the plaintiff went to the rescue of Mr. Byrne. Both sides agree that the case falls to be determined by reference to the law on rescuers. Both sides quoted passages from McMahon and Binchy’s Law of Torts (3rd Edition) in support of their respective arguments.
For the plaintiff it was pointed out that the legal position of the rescuer has undergone a transformation in recent years. No longer the Cinderella of the law he is now it’s darling, counsel contends, with acknowledgement for that colourful description to Fleming’s Law of Torts (9th Edition, 1998), p. 186. The plaintiff relies upon a passage from the judgment of Cardozo J. in Wagner v. International Railroad Company [1921] 232 N.Y.S. 176 where he said:-
“Danger invites rescue. The cry of distress is the summons to release. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.”
The defendant contends that liability attaches to it only in circumstances where it has been guilty of negligence in creating the situation of actual or apparent peril. It says it was not guilty of any negligence on this occasion.
At the conclusion of the plaintiff’s case I declined to accede to an application for a non-suit taking the view that there was a prima facie case made out against the defendant. Having heard the defendant’s evidence and submissions I conclude that the plaintiff is entitled to succeed in his claim against it. I do so because I am satisfied that the defendant was guilty of negligence for the following reasons.
First, the employment of a single security officer to cover the entire of the premises on an occasion of late night shopping was inadequate. There was no security back up for him. Secondly, the only method of communication that he had with other members of the defendant’s staff was a mobile phone. That was much less efficient than the two-way radio which would have been in operation had other security personnel been on duty at the time. Thirdly, Mr. Byrne conscientiously attempted to do his duty in circumstances where it would have been more sensible to have adopted a different approach. When confronted with two drunken louts, both with bottles in their jacket pockets, it would have been safer to have contacted the police before endeavouring a citizen’s arrest of Colville. The police station is next door to the shopping centre and closed circuit television was in operation in the defendant’s store. The protocol which I was told about does not require a security officer to attempt an arrest in circumstances where he is outnumbered. Mr Byrne negligently breached that protocol and the defendant is vicariously liable for that act. The situation requiring assistance of a rescuer was reasonably foreseeable and was brought about by a combination of Mr. Byrne’s non-adherence to the protocol and the defendant’s failure to provide appropriate backup for Mr. Byrne.
Counsel for the defendant indicated that if I were to find in favour of the plaintiff it would mean that security officers should not attempt to detain suspected shoplifters and so I would be writing a shoplifters’ charter. I haven’t the slightest intention of doing so nor does my decision amount to such. There would have been little difficulty in bringing the situation under control if the defendant had a sufficient number of security personnel with the appropriate two-way radio equipment in operation on the evening in question. Alternatively the protocol could have been observed, the police called, the suspects observed and arrested afterwards.
Damages
The plaintiff was struck in the face with a heavy link chain with such force that he fell back against a wall. When Colville and McCormack had been arrested the plaintiff was taken to the nearby police station. His face was cleaned up by members of the force. He was taken by ambulance to Cashel Hospital, where he was x-rayed. The following day he went to Waterford Regional Hospital. On examination he had a laceration over the nasal bridge and a swelling over the right cheek. He was found to have suffered an injury to his nose with a possible fracture of his nasal bones. He also had a swelling of his right cheek and epistaxis from the right side of his nose. Analgesics were prescribed and he was advised to attend the Ear, Nose and Throat department concerning the nasal injury. He did so. He was found to have a laceration to the nasal dorsum. There was a fissure fracture affecting the tip of the nasal bones shown on x-ray. He was seen again later in July complaining of pain in his neck and the back of his head. He was diagnosed as having soft tissue injury to his neck secondary to the injuries to his face. He was prescribed analgesia for this.
When he was reviewed in February, 2004, he continued to complain of soreness to the top of his nose and intermittent blockage of the nose. He also complained of pain on the right side of his upper jaw which came on about six weeks after the incident. It was recommended that the pain in the upper jaw be investigated by a maxillo facial specialist.
He went to see Professor Sleeman who is such a specialist. Professor Sleeman found that he certainly had a problem in his jaw in that he couldn’t open it to any satisfactory degree. He suspected a problem with his right temporo mandibular joint which would require surgery. Before doing so, however, he required a CT scan to be done. The results of that suggested that the plaintiff had a problem with the joint which would be amenable to surgical management. Accordingly an orthrocentesis was carried out in February, 2005. It did not solve the plaintiff’s problem. Consequently an exploration of the joint was carried out by Professor Sleeman. His examination found little pathology present and all seemed to be normal. However, he directed that an MRI scan of the joint be done to see if that would help inform him as to why the plaintiff had pain and reduced movement in the joint. That examination showed a dislocated thinned incompletely reducing disc on the right hand side.
Apart from the nose and jaw injuries the plaintiff also complained of the injuries to his neck and shoulder. He was seen by an orthopaedic surgeon in respect of those complaints. He took the view that the plaintiff’s neck and shoulder injuries should heal fully in time. Any ongoing pain is likely to subside in the future and the plaintiff will not suffer any permanent deficit in his neck, lower back or shoulder as a result of the assault.
As a result of the injuries the plaintiff lost a good deal of time from work. He had an accident at work in November, 2002, which gave rise to injuries resulting in him being off work for about two to three months. Apart from that period I am satisfied that his other absences were as a result of the assault in suit and have been medically certified. He is at present having physiotherapy and I think it likely that he will return to normal work within the next few months.
The plaintiff had a horrible experience which gave rise to substantial injuries to his jaw, nose and neck. He has had to have two operations carried out in relation to his jaw and is still having ongoing treatment for the neck injuries. His ability to participate in sport (which he enjoyed greatly) has been much diminished.
I assess damages as follows:-
(1) For pain and suffering to date €40,000;
(2) For pain and suffering into the future €10,000;
(3) Nett loss or earnings to date and for the next few months €28,000;
(4) Agreed special damages €3,201.
(5) Total €81,201.
In conclusion, I cannot but comment on the shabby way the plaintiff was treated by the defendant. Despite his bravery in going to the assistance of one of its security men he received not a word of thanks or acknowledgement from Dunnes Stores until the commencement of his cross examination in this case, four and a half years after the event. No real effort was made to make any contact with the plaintiff to enquire as to his welfare or to thank him for what he had done.
Result
The plaintiff succeeds and there will be judgment in his favour for €81,201 and costs.
Approved: Kelly J.
O’Connor v Murphy
[2008] I.E.H.C. 248JUDGMENT delivered by Mr. Justice de Valera on the 31st day of January, 2008
In this matter the plaintiff Margaret O’Connor has sued the defendants Michael Murphy, a Consultant Orthopaedic Surgeon and the Southern Health Board as being the body at all material times, controlling, managing, maintaining and supervising Tralee General Hospital and the medical and surgical practices carried out therein.
On the 27th November, 1997, the first named defendant carried out a surgical procedure, the fitting of an artificial right hip joint to the plaintiff at the second named defendant’s hospital at Tralee, known as Tralee General Hospital (this operation will be referred to hereinafter as the first operation).
It is plaintiff’s contention that due to the negligence and breach of duty of the first named defendant the artificial joint inserted into the femoral shaft in her right leg was misaligned and the cortex of the right femoral shaft was perforated, allowing the cement used to fix the artificial joint in the femoral shaft to extrude through this perforation.
Subsequently, having complained to the first named defendant and attended him on a number of occasions, the plaintiff was readmitted to Tralee General Hospital on the 18th January, 1999, when the first named defendant carried out another operation (hereinafter referred to as the second operation).
The plaintiff states that she continues to suffer from pain and disability and subsequently on the 27th June, 2000 had a “strut allograft” procedure on the 27th June, 2000, (the third operation).
As a result of the negligence which the plaintiff alleges against the first and second defendants the plaintiff claims damages for the pain suffering and disability occasioned to her.
The defendants deny that the first named defendant was negligent in the manner in which he carried out the insertion of the artificial joint, into the plaintiff’s right femur. They also deny that the failure, conceded by the first defendant, to inspect the cortex of the femur subsequent to the insertion of the artificial joint to ensure that no perforation had taken place, was negligent. The defendants also deny that the failure to alert the plaintiff to the true purpose of the second operation was negligent and in breach of the defendants’ duty to the plaintiff and claim that even had the plaintiff been fully advised as to the purpose of the second operation she would have agreed to its taking place.
The defendants further deny that the misalignment of the artificial joint was of sufficient significance to warrant further surgery and that the pain and disability claimed by the plaintiff was not as a result of either the perforation or the misalignment and further that the strut allograft operation, the third operation, was not necessary to alleviate the plaintiff’s complaints.
The first operation
I am satisfied, on the balance of probability and on the evidence adduced before me that the first named defendant was negligent in the manner in which he carried out this procedure and, further, in not insuring that no perforation had taken place by an inspection of the cortex immediately after reaming, in allowing the fixing cement to extrude through the perforation in the cortex and in fixing the artificial joint in a misaligned position.
In coming to this conclusion I have considered the first defendant’s own evidence and the evidence of the only witness called in his behalf, Mr. Sheehan.
I have considered the evidence given on behalf of the plaintiff by Mr. Jago, Mr. Harris and Mr. Lambe that in the circumstances where the plaintiff had a narrow canal in her right femur which required reaming to allow the insertion of the stem of the artificial joint (a procedure which was within the competence of the first Named defendant), the use of a guide wire was desirable. It is common case had such a guide wire been used it is almost impossible that perforation of the femoral cortex would have occurred.
Even if there was no negligence in the manner in which the bone canal was reamed, I am satisfied, again accepting the evidence of the plaintiff’s expert medical witnesses that an inspection of the exterior surface of the femur should have taken place (and the first defendant concedes this in his evidence). I am also satisfied that because of the eccentric drilling or reaming, the misalignment of the artificial joint could and should have been detected by the first defendant which inevitably would have led to the conclusion that there had been a deviation from the correct reaming path.
The second operation
The first defendant did not disclose to the plaintiff the true purpose of the second operation which he recommended to her and carried out. In the circumstances this was, and remains in principle, unacceptable. However, having considered the evidence particularly of the plaintiff and the submissions made to me on this point I am satisfied that even had the true purpose of this procedure been made known to the plaintiff she would have agreed to undergo it, despite the fact that had the first operation been properly carried out this second operation should not have been necessary.
The third operation
On the 27th June, 2000, the plaintiff underwent a third operation on her right hip, described as a “strut allograft” procedure. As far as the plaintiff is concerned this operation has been a successful attempt to relieve the most severe symptoms arising from the first, and probably second, operations. I am satisfied on the evidence that this third operation was necessitated by the failure of the first and second operations to alleviate the plaintiff’s problems and had the first operation been carried out correctly neither the second nor third operation would have been necessary.
Causation
I am satisfied that the pain and suffering, and disability, suffered by the plaintiff since the first operation on the 28th November, 1997, is as a direct result of the defendant’s failure to properly carry out the artificial hip operation and that this was due to the negligence of the first named defendant. Both the plaintiff and her expert witnesses have given evidence in this regard, which I accept. Mr. Sheehan, for the defendants, does not accept this view but, on the balance of probabilities, I am persuaded that the plaintiff’s contention is correct.
Damages
I am satisfied that the pain and suffering which the plaintiff has suffered and continues to suffer is as a result of the perforation of the cortex of her femur, the extrusion of the cement and particularly the misalignment of the artificial hip joint in the first operation. The plaintiff had to undergo two unnecessary surgical procedures (the second and third operations) and not until the third operation, was the cause of her pain properly addressed.
The plaintiff is entitled to damages for pain and suffering to date in the sum of €100,000.
The medical evidence is that the plaintiff will continue to suffer from pain into the future and I am also satisfied that the future revision surgery which, even had the first operation been entirely successful would be required in the future has been brought forward somewhat and the appropriate amount of damages taking this into consideration for future pain and suffering is €50,000.
The plaintiff has not claimed any special damage.
Lendrum v Clones Poultry Processors Ltd
[2008] I.E.H.C. 412Judgment of Mr Justice Michael Peart delivered on the 10th day of December 2008:
The plaintiff is now aged 62 years and on the date of the accident giving rise to the present proceedings, the 22nd April 2003 he was aged almost 57 years of age. On that date he was employed by the defendants as a Dispatch Manager at its premises at The Enterprise Centre, Clones, Co. Monaghan, where his duties included loading up the defendant’s delivery vans, at the rear of these premises, with poultry products for delivery to other parts of the country.
The defendant’s said premises is one of a number of business premises located at this Enterprise Centre. That Enterprise Centre has access thereto from the south off a road referred to as 98 Avenue by means of a wide unmarked gateway, and at the north end, as of the date of this accident, had an exit gate leading to a roadway in the direction of Rosslea Road. Both gates were open and this facilitated access and egress for staff employed by businesses, including the defendant company, as well as providing a shortcut used on a regular basis by members of the public generally wishing to go either to or from 98 Avenue to Rosslea Road. It is uncontested that this shortcut was used regularly by members of the public generally, though it is likely that most of such persons would be local, since one would need to know that this short-cut was available through the area.
I am satisfied that the roadway in question through the Enterprise Centre, and particularly the area of roadway at the rear of the defendant’s premises where this incident occurred is a public place for the purposes of the definition of ‘a public place’ contained in the Road Traffic Act, 1961. That conclusion is confirmed, in so far as it requires to be, by the evidence of Garda Sheridan who stated that if a person was driving on this section of roadway while drunk he/she would be charged with the offence of drunk driving.
The accident:
As I have stated, the accident giving rise to the present claim occurred at the rear of the defendant’s premises while the defendant was engaged in loading product into the back of a van belonging to the defendant company which was parked roughly opposite the rear entrances to the premises. The laneway on which the van was parked was part of the roadway which I have described. It is approximately 11 metres in width at that point, and the van in question was parked in a position opposite these entrances and against a low wall on the other side, meaning that in order to get to the van in this parked position on this occasion it was necessary to cross to the far side of the roadway. There is no evidence before me as to whether the defendant required the van to be parked on the far side of this roadway when being loaded, rather than on the near side, but that may be dictated by the fact that on the near side between two of the three entrances into and out of the back of the premises, there is a large green Portakabin which is used apparently as a canteen.
The plaintiff has described how on this date at about 4pm he was situated at the back of the van, loading produce from the defendant’s premises. The van had its doors in the open position, which meant that the doors were open to 90 degrees only, and not therefore protruding beyond the width of the van itself. He has described that as he was carrying out his tasks at the back of the vehicle he became aware of a car approaching from behind him, and from the noise of the engine formed the view that it was travelling very fast in his direction. In other words the car was approaching at speed from behind him. Because of this speed he was fearful that the driver of the car would not be able to safely negotiate the roadway ahead of this van, and could hit a wall. It appears from photographs of the locus that once the driver would pass this van it would need to negotiate its way onto a narrow piece of laneway which veers up to the right in the direction of the exit onto Rosslea road. The plaintiff feared that it might collide with a high wall instead of accessing this narrow stretch of laneway. In any event as the car passed the van the plaintiff came out from behind his van to the outer side in order to get a view of how the car progressed to the laneway. He said that he took a couple of paces towards the front of the van and looked forward in the direction in which the car was travelling in order to see what would happen. In fact the car made its way successfully into the narrow laneway, and proceeded on its way. At that point the plaintiff turned around again, or to use his own words “wheeled around”, in order to return to the back of his van to continue the loading of product.
He described how, having turned round to return to the back of his van he suddenly found himself on the ground with his right foot trapped under the right wheel of another car which had come up the lane from the same direction as the previous car. He had not heard that car approaching and had not seen it. He simply found himself on the ground with his foot trapped. The driver of that car got out, enquired of the plaintiff how he was, and thereafter got back into his car and reversed his car in order to release the plaintiff’s foot from under the front wheel. He got up and hobbled as best he could but was in a lot of pain. The car drove off, and he did not make a note or otherwise remember the registration number of this car. I do not have the impression that this car departed in any manner which would suggest that it was escaping or leaving at speed. I have certainly not been given such evidence. The plaintiff did not take a note of the registration of this car, though he believes it was an English registration plate, since it was yellow but was not a Northern Ireland number, and was not an Irish registration.
I will come to the precise injury sustained in due course.
The plaintiff has given evidence that he was never given any instruction by his employer as to how to conduct himself safely in the lane when loading up a van with product. Neither was there any health and safety notice.
Robert Burke, an engineer, of Herr Engineering & Design, has given evidence in accordance with his report. He has stated that at the locus of this accident and in the area of the Enterprise Centre as a whole, there are no warning signs, speed limit warnings, or anything which would warn a car driver that care must be taken because of the presence of people working in the area, either at the entrance to the Centre or anywhere within it.
He is of the view that measures could and should have been taken by the plaintiff’s employer to warn passing motorists, in particular those who pass at the rear of its premises, to ensure as far as possible the safety of its employees who may be working there. These measures would include the designation of a particular area for loading up vans in that area, ensuring that the area was kept clear, the placing of appropriate signage to warn drivers to take care, the placing of a speed limit for cars of about 10 mph, the placing of speed ramps, as well as ensuring that the gate at the exit point onto Rosslea was at all times kept closed to prevent this route being taken as a short-cut for traffic to that road.
He is also of the view that the defendant should have provided high visibility clothing for its employees working in this rear laneway in order to increase the visibility of those employees while working in this area. He is of the opinion that the failure to take such measures means that the plaintiff was required to work in an unsafe environment, and that the defendant’s failures in that regard constitute a breach or breaches of the Safety, Health and Welfare at Work (General Application) Regulations 1993.
When cross-examined by Eoghan Fitzsimons SC for the defendant, he accepted that there would also have been an onus on the plaintiff to take reasonable care for his own safety while working. In that regard Mr Fitzsimons suggests that the only reason that this accident happened was that the plaintiff “went on a frolic of his own” by wanting to observe the first vehicle as it proceeded past the van, and that this was not part of his work activity, and was simply a traffic accident at the back of the premises, especially since it occurred in “a public place”.
Joseph P. Osborne, a consulting engineer, who prepared a report for the defendant, gave evidence in accordance with that report. He disagrees that the measures suggested by Mr Burke would have prevented this accident from occurring, and opined that it was simply a traffic accident and unrelated to any defects in the safety of the workplace or system of work. He is of the view that the defendant company simply has the use of these premises and that it is the Enterprise Centre which has the responsibility for matters such as road signs and other warnings to drivers passing through. He also believes that any drivers passing through this way for a shortcut would be local people and would already be aware that there may be people working at the rear of this premises. He believes that there is no need to have any signage in the roadway for such drivers. In his report he states that the blame for this accident must rest with the driver of the car and to an extent the plaintiff, and that “it is difficult to know …… what Clones Poultry Processors could have done to avoid the accident”.
Conclusion on liability:
The first thing to be said is that there is no evidence before me in these proceedings that any complaint exists in relation to the manner in which this vehicle was being driven on the area at the rear of the defendant’s premises, either prior to or at the time of making contact with the plaintiff’s foot and causing him to fall to the ground. The plaintiff has said that he did not either hear or see the car before this happened. The claim being made is in these proceedings is only against the defendant company, the plaintiff’s employer for failing to provide a safe place of work and/or a safe system of work. There has been evidence in the case that a second set of proceedings has been commenced against the MIBI seeking damages for negligence by an untraced driver, but it has been agreed between the plaintiff’s solicitor and the MIBI that the present proceedings would be determined ahead of the latter.
The personal injury summons in the present case recites a large number of allegations of negligence in this regard, but it unnecessary to set them out in detail. They can all be conveniently dealt with as a claim related to a safe place of work and safe system of work.
Mr Fitzsimons has suggested that no warnings or high visibility clothing would have served any purpose in preventing this incident from occurring, and that the sole cause of the plaintiff’s injury was the plaintiff’s own action – one outside the course of his employment, by deciding to come away from the back of the van in order to watch the progress of the first car which was travelling at speed. He suggests that if the plaintiff had simply ignored that and continued to do his work at the back of the van in the normal way, this accident would not have happened. For this reason, he suggests that this accident did not occur during “the course of his employment”.
I believe that to be an unduly restrictive meaning to “in the course of employment”. The plaintiff’s work required him to work in this laneway in order to load up the defendant’s product into the delivery van, and the defendant must be taken to have been aware that drivers were in the regular habit of using this area as a shortcut to the other road. That means that the defendant must be taken to be aware that such traffic would on a regular basis pass the point where the delivery vans were parked. The plaintiff was at work on that occasion, and engaged upon his duties, albeit that for a moment or two he looked at a passing car. I do not think that such a brief moment when his mind was on something which was not strictly work-related is sufficient to take the accident outside “the course of his employment”.
In my view the defendant as employer was under a duty to take care not to expose the plaintiff to any danger at work which was reasonably capable of being anticipated, and this required them to take reasonable steps to ensure the plaintiff’s safety while at work in the lane. It seems to me that no steps whatsoever were taken in that regard. Nevertheless, it is also the case that some of the measures identified by Mr Burke as appropriate to have been taken would not have had any impact in preventing this particular accident. There is a lack of causation therefore in relation to some of these suggested measures.
However, I feel that a reasonable precaution to be taken by the defendant would have been to provide the plaintiff with a high visibility jacket for use while working in the laneway on which there would be passing cars on a regular and known basis. That would have made the plaintiff more visible to the driver of the car as he turned back to return to the back of the van.
In addition, the absence of warning signs of any kind will have contributed to the driver failing to be alerted to keep a lookout for men or women working at the rear of the premises.
On the other hand, while speed ramps may well be a good idea generally, and a reasonable precaution for the defendant to have in place outside their premises in this Enterprise Centre, their absence on this occasion is irrelevant to causation since there is no evidence that the car in question was travelling other than very slowly. If that were not the case, it is probable that the plaintiff would have heard the car, as he had heard the first car, and in addition it is unlikely that the driver would have simply been able to stop his car trapping the plaintiff’s foot in the process. The same comment applies to the erection of speed limit signs.
But I accept that in circumstances where the defendant’s employee is required to load up a van with its product at the rear of the premises, and in an area where traffic is known to pass, it would be a reasonable measure to have a clearly designated and safe area for the van to be located while being loaded, and if possible in a position on the near side of the laneway, rather than against the low wall on the far side. That was absent in this case. It was reasonably foreseeable that an accident of this kind might occur if appropriate precautions were not taken to protect the plaintiff.
In these circumstances, I am satisfied that the defendant company breached its common law duty of care to the plaintiff by failing to ensure that this workplace, which includes this area for the purpose of this case, was safe in all the circumstances. I need not conclude the matter on the basis of any breach of statutory regulations.
Contributory negligence:
That said, however, I am satisfied that the plaintiff must bear a significant portion of the responsibility for this unfortunate occurrence. He also was well aware of the existence of passing traffic on this laneway. He was a mature and responsible employee, occupying the post of dispatch manager, as well as having other general duties. He must be taken as being aware that he must take reasonable care for his own safety while working in that environment. He accepts that he need not have moved to the outer side of the van from the back of the van in order to watch the progress of the first vehicle which passed him. It was not that act which was lacking in care for his own safety, but rather the manner in which he appears to have simply turned round to return to the back of the van, without apparently checking whether it was safe to do so, or anticipating that there might be a vehicle approaching. He failed to either see, or even hear the approaching car. It seems to me that he made that manoeuvre without any thought for any possible risk from cars which he was aware were in the habit of passing on that stretch of laneway. He ought to have taken more care for his own safety to ensure that it was safe to return to the back of the van. His failure to do so contributed significantly to this accident, even though his employer might also have taken greater care to ensure that his workplace was safer.
I believe that the plaintiff must be found to have contributed to this accident to the extent of 40%.
The injuries:
In the immediate aftermath of this accident, the plaintiff was in considerable pain having had his foot trapped beneath the wheel of the car. He was able to hobble, however. His employer brought him to hospital, where it was discovered that he had sustained a fracture base of his 5th metatarsal in his right foot. No plaster cast was applied, but rather a light ankle support. His recovery from this injury was somewhat slower than had at first been anticipated, as the bone had been slow to unite, but by 17th September 2003 he is reported as being fully healed, and he returned to work on the 6th October 2003.
His social and leisure life was disrupted. He is a keen cyclist and was unable to pursue that interest until the following spring. He was unable to play golf or go hill-walking for about one year.
The only ongoing symptom is that sometimes in cold weather he has discomfort but he makes little of this.
Damages:
I assess general damages for past pain and suffering in the sum of €28000. As the plaintiff has fully recovered he will have no future pain and suffering. Special damages have been agreed at €2700, making a total of €30,700. From this figure I must deduct the sum of €12,280 in respect of 40% contributory negligence, leaving a sum of €18,420 in respect of which judgment will be entered against the defendant.
Doyle v Electricity Supply Board
[2008] I.E.H.C. 88JUDGMENT of Mr. Justice Quirke delivered on the 4th day of April, 2008.
The plaintiff is an electrician who was born in 1952 and is now 55 years old. He is married with one son and at all times material to these proceedings was employed by the defendant as a cable jointer, working from the defendant’s premises at South Lotts Road in Dublin. The defendant is a statutory corporation which, inter alia, is responsible for the provision of electrical power throughout the State.
During the course of his employment with the defendant, the plaintiff suffered recurrent bilateral epicondylitis of his elbows while using a Pfisterer compression tool. He claims that this injury and the consequent loss and damage which resulted from the injury were caused by reason of negligence, breach of duty and breach of statutory duty on the part of the defendant.
In consequence, the plaintiff claims damages from the defendant to compensate him for his injury and its consequences.
RELEVANT FACTS
1. The plaintiff was first employed by the defendant in 1980 as an electrician.
In 1981, or thereabouts, he was assigned to work as a cable jointer working outdoors on overhead electric power cables which provided power to residential and other dwellings. He continued to work as a cable jointer for the defendant until late 1996 or early 1997.
Between 1982 and 1997, most of the plaintiff’s work as a cable jointer was undertaken in a section known as “construction section”. His job within that section required him to work on the assembly of high and low tension relay panels within newly constructed substations and other small buildings known as “unit subs” and “mini pillars”.
He was also required to splice and join cables in underground trenches from time to time but most of his work at this time involved the fitting of cables within the substations, unit subs and mini pillars.
2. At all material times, the plaintiff worked with the central branch of the defendant within the Dublin region. He was assisted in his normal duties by a general operative or helper. An operative called Joseph Behan usually filled that role for the plaintiff.
Twenty-six crews operated from the central branch. The plaintiff and Mr. Behan comprised one of twelve crews which worked within the construction section.
The plaintiff’s work required him, inter alia, to connect electric conductors or cables to the terminals within the substations or mini pillars. This was achieved by bolting the conductor or cable to the terminal using a connector.
The plaintiff was required to repair the conductor cable by paring back its outer layers of insulation revealing its inner cores (usually four).
The plaintiff or his assistant then pared back the outer layers of insulation of the individual cores and prepared the cut end of the central aluminium core.
It was then necessary to fit a connector to the end of the conductor and this was achieved by sliding a connector over the conductor and then squeezing or “crimping” the connector in place so that there was a firm fixing.
The crimping was undertaken by using a special crimping tool manufactured by Pfisterer in Germany. The tool was, accordingly, called a Pfisterer tool and consisted of a set of jaws which were connected by a linkage to two handles. The handles were 600 millimetres (approximately 2 feet) in length.
Within the jaws there was a special die which the operative was required to squeeze around the connector. Different shapes and sizes of die were required for different sized connectors.
The connectors in turn were sutured to particular sizes of cable or conductor.
The Pfisterer tool, which was used at all material times by the plaintiff and his assistant, was the Pfisterer G06-300 model.
The dies and the connectors which were used by the plaintiff and his assistant were also manufactured by the Pfisterer Company in Germany.
When a connector was being fixed to a conductor it was necessary to compress each connector using the Pfisterer tool on several occasions. The number of occasions on which the connector needed to be compressed depended on the type of connection and the type of conductor. The conductors or cables most frequently used by the plaintiff and his assistant were the 185 sq. cable, (which required five separate crimps to be applied to each core), and the 380 sq. conductor, (which required eight separate compressions in respect of each connector).
The plaintiff indicated in evidence, that he would “possibly do 100 crimps per day – maybe more”. He said that each crimp took up to five minutes to complete. He and his assistant shared the task of crimping using the Pfisterer tool.
3. It was acknowledged by all of the witnesses who testified in these proceedings that the work of crimping comprises relatively heavy manual work and that, in order to achieve a satisfactory result, the application of significant force by the operative upon the Pfisterer tool is required.
Mr. Robert Saunders, who is an Occupational Health and Ergonomics Engineer, carried out an examination of the Pfisterer tool on behalf of the plaintiff and took a series of measurements in an attempt to calculate the degree of force which was required to crimp cables in the manner undertaken by the plaintiff and his assistant.
Mr. James Watson, who is a Consulting Engineer retained on behalf of the defendant, was present when these measurements were taken. Both of these expert witnesses agreed that the measurements were crude in nature and could only be relied upon as a rough estimate of the actual mechanical force required to close the Pfisterer tool adequately upon the conductors.
Both experts were in agreement that force in the order of 20 to 25 kg. was required in the case of the 380 sq. cable cores and a force of approximately 18 to 21 kg. was required in the case of the 185 sq. cable cores.
Mr. Saunders was of the opinion that the Pfisterer tool was likely to have triggered the development of the plaintiff’s epicondylitis but agreed it was not possible to be completely definitive.
Mr. Watson pointed out that the Pfisterer tool was used by all of the other crews charged by the defendant with the same work and there had been no report of a similar injury. He stated in evidence that the tool had been sold in sixteen countries and the Pfisterer Company was not aware of any injury to any operative resulting from the use of the tool. He said that he did not believe that a force of 20 kg. or thereabouts was excessive in the circumstances.
4. In August, 1991, the plaintiff consulted his General Practitioner, Dr. John Casey, complaining of pain and discomfort in his right lateral elbow, particularly when lifting. He was diagnosed with having right sided tennis elbow and prescribed anti-inflammatory medication. He continued to experience persisting symptoms and one month later he was referred by Dr. Casey for physiotherapy. This treatment produced a satisfactory outcome.
Four years later, on 2nd October, 1995, the plaintiff returned to Dr. Casey complaining of bilateral pain and tenderness in both lateral elbow joints. He was referred for physiotherapy at Beaumont Hospital where he had intensive treatment over a four to six week period. This improved his condition but when he returned to work his condition appeared to have become aggravated and worsened.
On 30th April, 1996, the plaintiff returned to Dr. Casey and was then referred to a Consultant Rheumatologist who referred him for further physiotherapy. He remained out of work until the end of September, 1996, when Dr. Casey wrote to the defendant by letter dated 26th September, 1996, advising the defendant that: –
“This man has attended me intermittently over the last five years with recurrent bilateral epicondylitis of elbows (in particular right) … It is my opinion, and that of the consultants, that his condition has been caused by his work as a cable jointer and is therefore likely to recur if he returns to the same type of work.”
Shortly after the plaintiff’s return to work in September, 1996, he was placed on light duties which did not require the use of the Pfisterer compression tool and he has remained working for the defendant on light duties up to the present time.
It was not entirely clear on the evidence whether the plaintiff might have been required to do some cable jointing work for brief periods after his return to work in September, 1996, but I do not believe that it is necessary to make any determination in respect of that issue because nothing of relevance within these proceedings turns upon such a determination. I am, however, satisfied that all of the witnesses who testified in respect of that issue did so conscientiously and in accordance with their best recollection of events which occurred eleven years earlier.
The plaintiff in evidence stated that he still experiences pain in his elbows when he undertakes gardening work or carries heavy weights. He takes occasional anti-inflammatory medication for his condition and was somewhat depressed for a time. However, he is able to carry out the duties which are required of him in his occupation at present provided he is not required to undertake heavy work of a manual nature.
He agreed that throughout the fourteen year period between 1982 and 1996, he had never made any complaint to the defendant indicating that the use of the Pfisterer tool had caused him to suffer from pain and discomfort in his elbows. He stated that he was not aware that the use of the tool was the cause of his injury.
5. Dr. John Casey, the plaintiff’s General Practitioner, in evidence stated that he believed the plaintiff suffered chronic soft tissue type injury to both of his elbows as a result of his work with the Pfisterer compression tool. He confirmed that the plaintiff had been depressed for some time after his return to work in 1996 and had required antidepressant medication which has now been discontinued for more than three years.
He stated that the plaintiff himself was of the opinion that his condition had been caused by his work with the Pfisterer compression tool and he (Dr. Casey) had agreed with him and had concluded that the condition was work related.
He felt it was significant that the plaintiff’s symptoms recurred when he returned to work with the Pfisterer tool and that the symptoms subsided when he was not required to work with it.
6. Dr. Paul O’Connell, who is a Consultant Rheumatologist, stated in his evidence that he first examined the plaintiff in 1997 and had prepared a report for the benefit of the plaintiff’s (then) solicitors.
He felt that his history was consistent with low grade chronic epicondylitis. He believed that, if the plaintiff was careful, his problems would remain low grade and manageable. He said that this situation will persist indefinitely.
He felt that the description of his use of the Pfisterer compression tool was consistent with the development of epicondylitis resulting from that use. He felt that the use of the tool was a “plausible explanation” for the condition which the plaintiff developed. He thought it was significant that whenever the plaintiff had resumed work with this tool the condition had reappeared.
7. Mr. Robert McQuillan, who is a Consultant Orthopaedic Surgeon, was retained on behalf of the defendant to examine the plaintiff. He said in evidence that he had examined the plaintiff on three occasions between 24th June, 1997, and 5th April, 2006.
He said that the plaintiff had given him a full and detailed history of his symptoms, his treatment and the nature of his work as a cable jointer with the defendant. He undertook a full and detailed examination of the plaintiff.
He said that the Pfisterer tool and its functions were demonstrated independently to him. He said that the plaintiff also personally demonstrated how he used the tool, indicating that when he was using it his arms opened beyond 180 degrees and closed to 10 degrees. He explained that he applied force whilst his arms were closing between 160 degrees and 10 degrees.
The plaintiff told him that he performed this activity approximately 150 times each day when he was working indoors.
Mr. McQuillan said that the use of the Pfisterer tool by the plaintiff involved flexion of the elbows and flexion of the wrist. He felt that this type of flexion put force on the common flexor muscles attached to the medial epicondyle. He said it was possible, but unlikely, that this could give rise to medial epicondylitis. He said the plaintiff’s symptoms were, to a large extent, on the outer aspect of the elbow and would appear to be totally unrelated to the use of the Pfisterer tool.
Mr. McQuillan said that the plaintiff was currently suffering from some underlying rheumatological condition and that his epicondylitis was a manifestation of this.
He said that the plaintiff’s use of the Pfisterer tool did not cause the epicondylitis in his elbows, but it could have made his condition worse, and he said it certainly would not have affected the plaintiff’s medial epicondyle.
8. Mr. Colm Clifford stated in evidence that he has been the agent in Ireland for the Pfisterer Company for more than thirty years. He said that the Pfisterer Company had sold more than seven hundred Pfisterer tools of the kind which the plaintiff had been using, to the defendant, whilst he was acting as the company’s agent.
He said that the Pfisterer tool is still sold internationally on a widespread basis. He said that he had never received any complaint of injury of the type sustained by the plaintiff arising out of the use of the Pfisterer tool and had never heard of any such injury of having occurred or of a complaint having been made of injury arising out of the use of the tool.
In cross-examination, he agreed that there are now hydraulically operated tools manufactured which perform the function required of the Pfisterer tool, including tools operated by foot pump. He also agreed that tools powered by electricity and by battery are now available on the market, although these are not manufactured by the Pfisterer Company. He agreed that Pfisterer now manufactures a hydraulic version of its tool which is operated manually.
Mr. David Semple who is an architect and engineer, retained on behalf of the plaintiff, stated in evidence that hand held hydraulic tools have been available on the market for use by users such as the defendant, since the early 1990s. He said he would have thought that present employers would use these hydraulic tools in preference to the Pfisterer tool which the plaintiff used during the course of his work as a cable jointer with the defendant. He thought that the defendant “should move with the times” and “should use the most modern equipment” that was available to it.
9. No evidence was adduced on behalf of the defendant that had complied with the provisions of Regulation 10 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (S.I. No. 44 of 1993) (hereafter “the Regulations of 1993”).
RELEVANT LEGISLATIVE PROVISIONS
The following legislative provisions are relative to the contentions of the parties in these proceedings.
Sections 6 to 11 of the Safety, Health and Welfare at Work Act, 1989, impose certain “general duties” which require employers to ensure, “so far as is reasonably practicable”, the safety, health and welfare at work of their employees.
Section 60 of the Act of 1989 provides that:-
“(1) Nothing in this Act shall be construed:-
(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by, or under, sections 6 to 11, or,
(b) as affecting the extent (if any) to which breach of duty imposed by any of the existing documents is actionable”.
Section 12 of the Act of 1989 provides as follows:-
12. (1) Every employer shall, as soon as may be, after the coming into operation of this section, prepare, or cause to be prepared, a statement in writing to be known and hereinafter referred to as a “Safety Statement”.
(2) The Safety Statement shall specify the manner in which the safety, health and welfare of persons employed by an employer shall be secured at work.
(3) The Safety Statement shall be based on an identification of the hazards and an assessment of the risks to safety and health at the place of work to which the Safety Statement relates.
(4) Without prejudice to the generality of subsection (2), the Safety Statement shall specify:
(a) The arrangements made and resources provided for safeguarding the safety, health and welfare of persons employed at a place of work to which the Safety Statement relates;
(b) The co-operation required from employees as regards safety, health and welfare; and
(c) The names, including the names of authorised deputies and job titles where applicable, of the persons responsible for the performance of tasks assigned to them by the said Statement”.
Regulations 10, 11, 13 and 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 (S.I. No. 99 pf 1993) (hereafter “the Regulations 1993), provide as follows:-
“10. Risk Assessment
It shall be the duty of every employer in preparing a Safety Statement:-
(a) To be in possession of an assessment in writing of the risks to safety and health at the place of work as required under section 12 (3) of the Act, such risks to include any which put groups of employees at unusual risk, and
(b) To decide on any protective measures to be taken and, if necessary, the protective equipment to be used.
11. Information
It shall be the duty of every employer:-
(a) In providing information to his employees or safety representative (or both) on matters of safety and health, to ensure that such information includes necessary information concerning:-
(i) The safety and health risks and protective and preventive measures and activities in respect of the place of work generally or each type of workstation task (or both),
(ii) Designation of employees under Regulation 9 (1) (c),
(iii) The measures to be taken concerning safety and health pursuant to these Regulations, and
(b) To take measures to ensure that employers of employees from another undertaking engaged in work activities in his undertaking receive adequate information concerning the matters referred to in paragraph (a)…
13. Training
(1) It shall be the duty of every employer in providing training on matters of safety and health to his employees to ensure that:-
(a) His employees receive, during time off from their duties and without loss of remuneration, adequate safety and health training, including, in particular, information and instructions relating to the particular task or workstation involved,
(b ) Where tasks are entrusted to an employee, his capabilities in relation to safety and health are taken into account, including in relation to the manual handling of loads by employees the individual risk factors set out in the Ninth Schedule, and
(c) Particularly sensitive risk groups of employees are protected against any dangers which specifically affect them, including in relation to the manual handling of loads by employees the individual risk factors set out in the Ninth Schedule.
(2) Training under paragraph (1) shall be adapted to take account of new or changed risks and shall be provided on recruitment of employees or in the event of transfer of employees, a change of job, the introduction of new work equipment, a change in equipment or the introduction of new technology, and shall be repeated periodically where appropriate.
(3) It shall be the duty of every employer to ensure that employees deom other undertakings engaged at work in his undertaking have received appropriate instructions relating to any risks to health and safety which may be encountered during work activities while working in his place of work.
(4) It shall be the duty of every employer who uses the services of a fixed-term employee or a temporary employee to ensure that such employee receives sufficient training appropriate to the particular characteristics of any work activity involved, account being taken of his qualifications and experience.
19. Duties of Employer
It shall be the duty of every employer, to ensure that:-
(a) The necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health;
(b) In selecting the work equipment, account is taken of the specific working conditions, characteristics and hazards in the place of work having regard to the safety and health of the employees and any additional hazards posed by the use of such work equipment;
(c) Where it is not possible fully to ensure that work equipment can be used by employees without risk to their safety or health, appropriate measures are taken to minimise any such risk;
(d) Where the use of work equipment is likely to involve a specific risk to the safety or health of employees:
(i) The use of such work equipment is restricted to those employees required to use it; and
(ii) In cases of work involving repairs, modifications, maintenance or servicing of such work equipment, the employees concerned are competent to carry out such work;
(e) The necessary measures are taken so that employees have at their disposal adequate information and, where appropriate, written instructions on the work equipment; and
(f) Information and instruction referred to in paragraph (e) contains at least adequate safety and health information concerning:
(i) The conditions of use of work equipment
(ii) Foreseeable abnormal situations, and
(iii) The conclusions to be drawn from experience, where appropriate, in using such work equipment; and that such information and any such written instructions are comprehensible to the employees concerned.
THE PLAINTIFF’S CLAIM
It is contended on behalf of the plaintiff, that the defendant ought to have known that repetitive and physically stressful work activities can cause soft tissue injuries to employees.
It is argued that the plaintiff’s injury comes into the category of a “repetitive strain injury” and that employers within this jurisdiction have been aware of the existence of such injuries since the late 1980s or the early 1990s.
Mr Counihan, S.C. on behalf of the plaintiff, argues that the plaintiff should have anticipated and foreseen that the work which the plaintiff was required to undertake with the Pfisterer machine was work which could have resulted in repetitive strain injury and ought to have taken reasonable steps to reduce the risk of the plaintiff contracting that injury.
Additionally, it is contended on behalf of the plaintiff, that an onus rests upon all employers to provide a safe system of work for their employees and that the system of work which the plaintiff was required to undertake was not safe because it exposed him to the risk of injury and accordingly, it is argued, the defendant failed in its obligation to provide the plaintiff with a safe system of work.
It is also alleged on behalf of the plaintiff that the defendant failed to comply with the obligations imposed upon the defendant pursuant to the provisions of sections 6 to12 of the Safety, Health and Welfare At Work Act 1989 (hereafter “the Act of 1989”).
Those statutory provisions impose certain “general duties” which require employers to ensure “so far as is reasonably practicable” the safety, health and welfare at work of their employees.
Section 12 of the Act of 1989 imposes upon employers a duty, inter alia, to:
“Prepare, or cause to be prepared, a statement in writing to be known and hereinafter referred to as a ‘Safety Statement’”.
It is contended on behalf of the plaintiff that no evidence was adduced in these proceedings, demonstrating that the defendant had complied with its obligations pursuant to s. 12 of the Act of 1989, and that is certainly the case.
However, no evidence has been adduced in these proceedings which would suggest that the preparation or publication by the defendant of a Safety Statement of the kind required by s.12 of the Act of 1989 would have reduced or eliminated the risk to the plaintiff of the injury which he says he sustained.
In particular, Mr Counihan S.C., on behalf of the plaintiff, relies upon the provisions of Regulation 10 of the Regulations of 1993, which impose upon employers a duty, when preparing a Safety Statement, to:-
“ . . (a) be in possession of an assessment in writing of the risks to safety and health at the place of work as required under section 12 (3) of the Act, such risks to include any which put groups of employees at unusual risk, and
(b) to decide on any protective measures to be taken and, if necessary, the protective equipment to be used.”
Mr. Counihan relies also upon the provisions of Regulation 13 of the Regulations of 1993 which imposes upon employers a duty to provide their employees with training on matters of safety and health.
Pointing to the evidence adduced at the trial, he argues that the plaintiff was instructed how to use the Pfisterer tool by his contemporaries but was not trained to adopt an appropriate and correct posture and stance in order to minimise the stress created by the use of the tool. He contends that the plaintiff was, therefore, not adequately trained in a manner contemplated by Regulation 13 of the Regulations.
Finally, it is contended on behalf of the plaintiff that the defendant was in breach of the requirement imposed upon it by Regulation 19 of the Regulations of 1993, which required the defendant to provide its employees with work equipment which was suitable for the work required of its employees.
DECISION
1. Duty at Common Law
The duty owed at Common Law by the defendant to the plaintiff was, and remains, the duty owed by all employers to their employees, that is the duty identified by O’Higgins C.J. in Dalton v. Frendo (Unreported) Supreme Court, 15th December, 1977), “to take reasonable care for the servant’s safety in all the circumstances of the case”.
It has been repeatedly confirmed by the courts that employers are not the insurers of their employees. They cannot ensure their safety in all circumstances and are not required to do so.
In Bradley v. Coras Iompair Éireann [1976] I.R.217, the Supreme Court (Henchy J.) confirmed at p.223 that an employer “will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances”.
In the instant case, the defendant was notified by letter dated 26th September, 1996, that the plaintiff had suffered an injury which might be connected with his work. Dr. Casey’s letter of that date advising that the plaintiff had suffered intermittently over a five year period with recurrent symptoms in his elbows was the first such notice received by the plaintiff.
Dr. Casey advised that it was his opinion and that of the “consultants” that the plaintiff’s condition had been caused by his work as a cable jointer and was therefore likely to recur if he returned to the same type of work.
Shortly after the plaintiff returned to work during the same month, he was placed on light duties which did not require the use of the Pfisterer compression tool and he has remained working on light duties up to the present time.
Evidence was adduced on behalf of the defendant indicating: (a) that between 1991 and 1996, Pfisterer tools were in constant use by all of the defendant’s crews who did similar work without report of any injury and, (b), that the tool had been sold in sixteen countries around the world without any report of a similar injury resulting from its use. That evidence was not challenged by or on behalf of the plaintiff.
Additionally, the evidence adduced on behalf of the plaintiff indicated that between August, 1991, when he first consulted Dr. Casey complaining of pain and discomfort in his right elbow, and September, 1996, when Dr. Casey wrote to the defendant, neither Dr. Casey, nor the other expert medical practitioners who examined and treated the plaintiff, had made any clear connection between the plaintiff’s symptoms and the nature and extent of his work with the defendant.
There was a clear conflict between the evidence of Dr. O’Connell, a Consultant Rheumatologist, and Mr. Robert McQuillan, a Consultant Orthopaedic Surgeon, as to whether the plaintiff’s injury was or could be connected with his work with the Pfisterer tool.
Against that background the question arises whether the defendant could reasonably have foreseen between 1991 and 1996 that by requiring the plaintiff to use the Pfisterer tool, it was exposing him to the risk of injury of the type which he suffered. I am bound to say that I do not think that the defendant could have reasonably foreseen such a risk.
It is contended on behalf of the plaintiff that by the early 1990s, the concept of “repetitive strain injury” was well known to employers within this jurisdiction and to the courts. That may well have been the case but no evidence was adduced in these proceedings which suggested that between 1990 and 1996, the risk of suffering an injury such as the plaintiff suffered from the use of a tool such as the Pfisterer tool was known to employers within this or any other jurisdiction.
Mr. Semple, in evidence, said that he thought that the defendants “moved with the times” and “should use the most modern equipment” available to it. He said that in the early 1990s, hydraulically operated handheld tools and battery powered tools were available which performed the function required of the Pfisterer.
However, no evidence was adduced which suggested that the electrical, battery driven and hydraulically operated tools which were referred to in evidence, had been designed and introduced for reasons associated with the health and safety of the operators of such tools or by reason of any known risk of injury associated with the Pfisterer.
It is of significance that, when the plaintiff was notified by Dr. Casey that it was his opinion that the plaintiff’s injury was connected with his work as a cable jointer, the plaintiff was immediately placed on light duties and remained on those duties permanently. That was consistent with reasonable care by the defendant for the safety and health of the plaintiff immediately the risk of injury became apparent to the defendant.
It follows from what I have found that the plaintiff has not discharged the onus of proof by way of evidence and on the balance of probabilities, that the defendant had, between 1991 and September 1996, or at any earlier time, failed to discharge its duty at Common Law to take reasonable care for the plaintiff’s safety at work, to take such steps as were to be expected from a reasonable and prudent employer to provide the plaintiff with a safe system of work in the circumstances which then pertained.
2. Statutory Duty
Sections 6 to11 inclusive of the Act of 1989 are described as “general duties” which require employers to ensure “so far as is reasonably practicable” the safety, health and welfare at work of their employees.
The terms of the sections are self-explanatory and can be said to restate the obligations already imposed at Common Law upon employers.
Of particular importance, however, section 60 of the Act of 1989 provides that:-
“(1) Nothing in this Act shall be construed –
(a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by or under sections 6 to 11 [of the Act]…”.
It follows that the plaintiff may not recover damages from the defendant on the grounds alone of a failure by the defendant to comply with any duty imposed by the provisions of sections 6 to11 of the Act of 1989.
I am satisfied, however, that the provisions of s. 60 of the Act of 1989 do not disadvantage the plaintiff since duties imposed by sections 6 to 11 of the Act of 1989 are, in fact, duties imposed at Common Law upon employers and the plaintiff has been entitled to and has made those claims against the defendant at Common Law.
It is claimed on behalf of the plaintiff that the defendant failed in its duty under s. 12 of the Act of 1989 to “. . . prepare or cause to be prepared, a statement in writing to be known and hereinafter referred as a ‘Safety Statement’”.
I am satisfied on the evidence and on the balance of probabilities that the defendant has not complied with its obligations pursuant to s.12 of the Act of 1989 because that breach of duty was expressly pleaded by the plaintiff and referred to repeatedly during the course of the trial of these proceedings and no evidence was adduced on behalf of the defendant indicating or suggesting that the Safety Statement required by s.12 of the Act of 1989 had, in fact, been prepared or published.
The plaintiff has therefore established a breach by the defendant of its statutory duty under s. 12 of the Act of 1989.
However, no evidence has been adduced in these proceedings which would suggest that the preparation or publication of a Safety Statement would have reduced or eliminated the risk to the plaintiff of the injury which he sustained.
Of greater relevance, however, is the contention made by Mr. Counihan S.C. on behalf of the plaintiff, that by failing to comply with the provisions of Regulation 10 of the Regulations of 1993, the defendant caused or contributed to the injury which the plaintiff has sustained.
Article 10 of the Regulations of 1993 requires the plaintiff, when preparing a Safety Statement, to:-
“. . . (a) be in possession of an assessment in writing of the risks to safety and health at the place of work required under section 12 (3) of the Act, such risks to include any which put groups of employees at unusual risks, and
(b) decide on any protective measures to be taken and, if necessary, the protective equipment to be used”.
No evidence was adduced on behalf of the defendant indicating or suggesting that such an assessment was undertaken or published in respect of the plaintiff’s job and the manner in which he was required to undertake his duties.
Undeniably, the defendant has a statutory obligation, with effect from 22nd February, 1993, to prepare and publish a risk assessment in respect of the plaintiff’s job and to decide on any protective measures which needed to be implemented in order to protect the plaintiff from the risk of injury or illness. The defendant was in breach of that statutory duty and, upon the evidence adduced in these proceedings, it may still remain in breach of that statutory duty.
However, no evidence was adduced in these proceedings which would support the contention that if the plaintiff had carried out a risk assessment on the plaintiff’s job between 1991 and 1996, the risk of his sustaining an injury of the type which he appears to have sustained, would have been apparent to the (presumably expert) assessor.
On the evidence, the Pfisterer tool had been in use by the defendant for many years prior to 1991. It was in widespread use through sixteen other countries worldwide and no report of injury had been associated with its use.
The medical experts, who examined the plaintiff in respect of his complaints between 1991 and 1996, did not appear to make a connection between his symptoms and the use of the Pfisterer tool until 1996, and there remains a difference of view between the medical witnesses who testified in these proceedings as to that connection.
Accordingly, whilst the plaintiff has established a breach by the defendant of its duty pursuant to the provisions of Regulation 10 of the Regulations of 1993, he has not established, on the evidence and on the balance of probabilities, that the defendant’s breach of statutory duty caused or contributed to his illness and injury because he has not established that a risk assessment, if undertaken, as it should have been, by the defendant between 1993 and 1996, would have disclosed a connection between his injury and the use by him of the Pfisterer tool.
It is also contended on behalf of the plaintiff that the defendant was in breach of its obligations pursuant to Regulation 13 of the Regulations of 1993 to provide the plaintiff with training on matters of safety and health and in particular to provide him with information and instructions relating to his particular task.
Mr. Saunders, in evidence, stated that the plaintiff ought to have been trained to adopt a correct posture and stance so as to minimise the stress factors associated with the use of the Pfisterer tool.
However, no evidence has been adduced indicating that between 1991 and 1996, that there were any particular stress factors associated with the use of the tool or that any particular type of posture or stance would have reduced or eliminated the risk of the type of injury which the plaintiff apparently sustained. Mr Saunders, in his report, candidly acknowledged that such was the case.
Finally, it is contended on behalf of the plaintiff, that the defendant was in breach of the duty imposed upon it by Regulation 19 of the Regulations of 1993 which requires employers “ . . to ensure that . . . the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”.
Reliance is placed upon the decision of the High Court (Kearns J.) in Everitt v. Thorsman Ireland Ltd. [2000] 1 IR 256.
In that case, the plaintiff sustained an injury when a lever with which he was supplied by his employers, snapped and broke causing him to fall backwards onto the ground and sustained an injury. The evidence adduced in the case established that a latent defect within the metal lever caused it to snap and break. It was also established that the plaintiff’s employer could not have known of this defect. It had bought the lever in good faith from a seemingly reputable manufacturer.
Kearns J. asked at p.262:-
“What further steps could the employer have taken . . . Short of having the lever assessed by an expert in metallurgy or breaking the lever with a view to determining its maximum stress resistance, it is difficult to see what could have been done. It was a newly purchased tool which appeared strong enough for the job and had been purchased from a reputable supplier and there is no suggestion to the contrary.”
He held that the claim in Common Law against the employer failed.
However, at p. 263 he went on to find that Regulation 19 of the Regulations of 1993:-
“. . . imposes virtually an absolute duty on employers in respect of the safety of equipment provided for the use of their employees . . . while there is no blameworthiness in any meaningful sense of the word on the part of the employers in this case, these Regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment, should not be left without remedy”. As O’Flaherty J. pointed out, “an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment”.
He found that there was a breach of statutory duty on the part of the employer and awarded the plaintiff damages against his employer who, in turn, was entitled to recover a full indemnity from the company from which the faulty lever had been purchased by the employer.
In the instant case, I have found that the plaintiff has not established a breach by the defendant of any duty at Common Law owed by the defendant to the plaintiff as his employer.
However, with effect from 22nd February, 1993, (when the Regulations of 1993 came into force), a statutory duty was imposed upon the defendant which has been described (by Kearns J.at p. 263 in Everitt) “as virtually an absolute duty” which requires the defendant “ . . . to ensure that . . . the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health”.
I am satisfied that it has been established on the evidence and on the balance of probabilities that the use by the plaintiff of the Pfisterer compression tool caused or contributed to the bilateral epicondylitis of his elbows. It follows that, insofar as the plaintiff was concerned, the Pfisterer compression tool was not suitable for the work which he was required to carry out by the defendant.
The evidence has also established that hydraulically operated and battery powered tools were available between 1993 and 1996 which could have been used by the plaintiff to do his job without risk to his health or safety. Accordingly, I am satisfied that the plaintiff has established on the evidence and on the balance of probabilities that between February, 1993 and September, 1996, the defendant was in breach of the very strict duty imposed upon him by Regulation 19 of the Regulations of 1993 to ensure that the work equipment, and in particular the compression tools which the plaintiff was required to use in the course of his work on behalf of the defendant, were suitable and could be used by the plaintiff without risk to his safety and health.
It has been established on the evidence and on the balance of probabilities, that by 1993, the plaintiff had already been diagnosed with persistent symptoms in his right elbow which had been treated by way of physiotherapy in 1991. He is not entitled to recover damages in respect of those symptoms.
In evidence he stated that it was October, 1995, before his symptoms became sufficiently severe to require him to consult his General Practitioner, Dr. Casey.
By then both of his elbows were very painful and he noticed that when he returned to work his condition became aggravated and worsened. He was out of work from 30th April, 1996, until 26th September, 1996, when he was placed on light duties.
He has not had severe symptoms since his return to work although he was depressed for some time after his return to work in 1996.
On the evidence, the plaintiff had developed tendonitis in his right lateral elbow in 1991 and was also complaining of what was described as “some slight pain” in his left elbow. It is likely that epicondylitis had already developed in his right elbow and had commenced in his left elbow by February, 1993, in the absence of negligence or breach of duty on the part of the defendant. He is not entitled to recover damages for his pain and discomfort before February, 1993.
Between February, 1993 and October, 1995, the plaintiff’s epicondylitis worsened considerably in both elbows and he required treatment in October, 1995 and September, 1996 when he returned to work and was put on light duties. Between October, 1995 and September, 1996, he required considerable treatment and had ongoing symptoms which seriously disrupted his life and indeed prevented him for working at all between April, 1996 and September, 1996.
He is entitled to recover damages to compensate him for the pain, suffering, distress, inconvenience and disruption of his life during that time and thereafter.
After September, 1996, the plaintiff suffered from depression but has now recovered largely from that condition.
Since he has been placed on light duties, he has not had a recurrence of his symptoms to any great extent but he will have an ongoing need to take appropriate care in the choice of his activities and he may be slightly restricted in vigorous manual activity. On the evidence, however, if he is careful, his life should not be altered appreciably in the future as a result of this condition.
In the circumstances, I am satisfied that this is a case where a single award for general damages is appropriate and I would assess general damages at €45,000.
Davis v Jordan
[2008] I.E.H.C. 200JUDGMENT delivered by Mr. Justice Herbert on the 27th day of June 2008
The first question requiring an answer in this case is, was the defendant guilty of negligence as alleged. In my judgment he was. There was no evidence that the defendant was driving at an excessive speed. However, he told the court that as he approached the location where the collision occurred, three motors cars were coming in the opposite direction. The first in line of these cars he said, had, or appeared to him to have, its headlights on full beam, but the other two, he was quite satisfied, were being driven with dipped headlights. He was dazzled by the oncoming headlights. He said that he found it very hard to see and started to slow down. He was travelling at about 45mph. Suddenly, there was a bang on the left side of his Ford Fiesta Van and, the wing mirror seemed to fly off. What appeared to him to be hay went across the windscreen and from there up on to the roof. He said that it gave him a bad fright and, he assumed that he had struck a bale of hay with the wing mirror of the van. At the time of this incident, the defendant had been driving for one year and held a provisional driving licence only. He stated that he had purchased the van some six to seven months prior to the incident. He is a mechanic by occupation and, I find no reason to doubt his evidence, which was not contradicted, that the lights, brakes and steering of the van were fully operational on the occasion.
This incident occurred on the public roadway between Ballinalee and Drumlish in the County of Longford at approximately 22.40 hours on the night of 2nd July, 2004. Both the plaintiff and the defendant, in statements made soon after the event to Garda Bohan, now retired, but at that time stationed at Drumlish Garda Station, agreed that it was fully dark at the time of the incident. I am unable to accept the present recollection of the plaintiff that it was only dusk. I find on the evidence that just before the incident occurred a very light and fine drizzling rain had started.
The road at, before, and beyond the point where the impact took place is and was, by reference to the evidence of Mr. Frank Abbott, Consulting Engineer and retired Garda Bohan, both of whom gave evidence in the case for the plaintiff, to the evidence of the plaintiff and the defendant and, to photographs taken by Mr. Abbott on the 6th June, 2006, during daylight hours, lined in the defendant’s direction of travel by a high and dense hedgerow containing a number of mature trees overhanging the carriageway. On the opposite side of the road, there were a number of mature trees and a low wall and bank. The tarmac surfaced carriageway is and was 17ft wide, divided in the centre by a continuous white line. On the left side of the road, regarded from the defendant’s direction of travel, there was no margin at all, only a rising vegetation covered bank, initially at least, at a relatively shallow angle. However, on the opposite side of the road there was a rough grass margin, 5ft in width. On the 2nd July, the plants, shrubs and, trees lining this road would have been in full and dense leaf.
The uncontradicted evidence of Mr. Abbott and retired Garda Bohan established that this road is straight and rising gently for more than a mile before the point of impact and, continues straight beyond that point until it crests a low hill a few hundred metres further on. Both were agreed and, their evidence was not challenged or contradicted, that there are and were in 2004, a number of shallow undulations in the surface of the road, though these do not in any way obstruct a driver’s view of the road ahead. Mr. Fergal Geoghegan, a Consulting Civil Engineer was called in evidence on behalf of the defendant but I declined to hear his evidence on the objection of counsel for the plaintiff by reason of a breach of the provisions of
O. 39, r. 46(2) of the Rules of the Superior Courts with regard to the exchange of expert reports. The defendant accepted that he was very familiar with the road, having driven along it at least once a day, sometimes during the hours of daylight and sometimes during the hours of darkness. He was aware, he said, that the road carries a good deal of vehicular traffic and, he had often come upon persons walking on the road during daylight hours. He stated that he had never met a pedestrian on this part of the road after dark.
I accept the evidence of the plaintiff, that from his perspective the drizzling rain was not, as he described it, “enough to wet a handkerchief” and, that the road surface was dry. Equally from the defendant’s perspective it would have probably been sufficient to wet the windscreen of his van which was moving forwards at about 45mph and, it is therefore probable that the defendant, as he contended, had engaged the windscreen wipers at this time. By the time Garda Bohan arrived on the scene, it had turned into what he described as a heavy drizzle and the road surface was then wet.
Unfortunately, the wing mirror of the defendants van had not struck a bale of hay. It had struck the plaintiff in the area of his right buttock, throwing him onto the roadside bank from where he rolled onto the surface of the carriageway. From there he somehow got himself off the carriageway and back up onto the bank where he remained sitting.
What next occurred on the occasion led to a profound disagreement between the plaintiff and the defendant in the course of evidence, with an exchange of unflattering epithets. The plaintiff said that the defendant had stopped his car a little further on after the impact and, had then sped away over the brow of the hill. After about 10 or 12 minutes the defendant had returned driving slowly on the opposite side of the road to where the plaintiff was now sitting on the roadside bank. The plaintiff said that the defendant drove past him and turned further down the road and drove back up again beyond where he was sitting and stopped the car. After another 4 or 5 minutes the defendant got out of the car and walked back down to him. The defendant told the court that after the impact he had driven on a few metres where he used an area in front of a house – it was in fact the plaintiff’s house, but the defendant did not know that then – to turn and, he then drove slowly back down the road looking for the body of the wing mirror which had become detached from the van. When he saw a man sitting on the bank he became alarmed. He turned his van again at the first available place and drove back up the road to where the man was sitting on the bank. The defendant considered that no more than 4 or 5 minutes in total had elapsed since he had heard the bang. The defendant denied that he had stopped his van briefly at the plaintiff’s house and, had then “taken off like a bat out of hell”, with tyres screeching and slipping on the gravel outside the plaintiff’s house.
The defendant was not charged with leaving the scene of an accident and, neither party was charged with any other road traffic offence.
It was put to the plaintiff in cross examination, that in a statement he had made to Garda Bohan, he said that the defendant had come back after about 4 minutes. The plaintiff told the court that the defendant had asked him what had happened to him and, he had replied that he had been struck by a car. To this the defendant had replied that he was very sorry and he had not seen the plaintiff. The plaintiff gave evidence that he said to the defendant, “so it was you then”, to which the defendant had replied in the affirmative. The defendant in his evidence gave essentially the same account of the conversation, but said that he had also added that he was surprised that it was a person. He said that he asked the plaintiff if he was alright to which he replied that he was, but that his leg was sore. Both parties agreed that the defendant had then helped the plaintiff into the passenger seat of his van and had driven him the few metres up the road, to his house, where they both sat together and waited for the garda to arrive.
I am satisfied that the plaintiff’s present recollection of events has become distorted and inaccurate. If the plaintiff considered on the occasion of the incident that the defendant had fled from the scene, leaving him in pain on the side of the road, I cannot imagine that they would have sat peacefully together in the plaintiff’s house until Garda Bohan arrived. The present bitter recrimination of the plaintiff’s evidence to the Court, is not at all reflected in Garda Bohan’s recollection of what took place in the plaintiff’s house. It was not until the plaintiff made a written statement to Garda Bohan on the 15th July, 2004, almost two weeks after the incident, that these allegations are made. Clearly, neither Garda Bohan nor his superior officers in Longford considered on the occasion that the defendant had left the scene of the accident.
It is incumbent upon the driver of a motor car on a public roadway to drive within the range of his or her lights and, to proceed only when he or she can see that the roadway ahead is clear. This is reflected in the Rules of the Road which state that if dazzled by the headlights of an oncoming vehicle a driver should slow down and stop if necessary and, should always watch for pedestrians or cyclists on his or her side of the road. In the instant case, on this relatively narrow and heavily shaded road, with no roadside margin on his inside, the defendant, on the evidence, when dazzled by the lights of the first of the oncoming motor cars, slowed down but only to something less than 45mph. He then pressed forward at this speed even though he very obviously could not possibly see in the circumstances that the road ahead was clear. It is hardly surprising therefore that he was entirely unaware that there was something ahead on his side of the road until he heard a bang, the passenger side wing mirror of the van shattered and, “hay” came across the windscreen and went up over the roof of the van. Even after the impact he still had no idea what he had hit, but assumed that it was a hay bale simply because he saw “hay” on the windscreen. In my judgment the defendant should have stopped his van as soon as he was dazzled and he was negligent in not so doing and, in continuing to drive when he was temporarily blinded by the lights of the oncoming car so that he had no or no sufficient view of the road ahead.
In his defence the defendant, in the alternative, pleads that the plaintiff was guilty of contributory negligence, in, inter alia, walking on the incorrect side of the roadway, having no illumination and carrying a bale of hay which acted as a camouflage in the circumstances, so that the defendant could not see him in sufficient time to avoid colliding with him.
The evidence established that the plaintiff was not walking on the side of the road facing the oncoming traffic, on which side, there was the rough grass margin which Garda Bohan measured and found to be 5ft in width. The plaintiff was walking in the dark close by the side of the high and, in places overhanging, roadside hedgerow, with his back to the defendant’s approaching van. The evidence established that he was wearing on the occasion, green Wellington boots, dark trousers, a dark blue-green jacket, a white shirt and a grey jumper. I accept the evidence of the plaintiff that he was carrying a portion of haylage on a four pronged fork resting on his left shoulder. I do not however accept his evidence that this portion of haylage was no greater than the size of a football. The size of the fork, the purpose for which the burden was being carried – as extra food for a horse grazing near his house, – and the defendant’s description, even allowing for some hyperbole, of the quantity of the “hay” which struck the windscreen of the van and flowed up over the roof, I am satisfied that the portion of haylage being carried by the plaintiff on the occasion was very considerably larger. I am satisfied that it was sufficiently large to mask the white of the plaintiff’s shirt collar and his neck and, the outline of his head. In short, in the conditions prevailing at the time, the plaintiff had unintentionally but nonetheless effectively contrived a most efficient camouflage, which I am satisfied, would have made his presence on the roadway particularly difficult for motorists to detect.
The Rules of the Road state that where there is no footpath, pedestrians must walk as near as possible to the side of the road facing oncoming traffic and should always wear reflective clothing at night and should always carry a torch when walking outside built-up areas at night. I do not accept the suggestion by Mr. Abbott that it would have been more dangerous for the plaintiff to have crossed the road twice in order to walk facing the oncoming traffic, which was also the side of the road which had the grass margin 5ft in width. The evidence established that the plaintiff had for a number of years worked for Longford County Council as a machine driver. He accepted that he was fully familiar with the use and purpose of high visibility vests. He accepted that he possessed such reflectorised clothing but was not wearing it on the occasion. He explained that on the evening in question stud yard duties had detained him in the yard later than he had anticipated. From the evidence of Mr. Abbott I conclude that the distance between the entrance to the yard of the plaintiff’s stud farm and the entrance to his dwelling house is 75m. The two are separated by a disused premises and lands of which the plaintiff is neither the owner nor occupier. To reach his dwelling house from the stud farm yard it was his custom to walk along the public roadway.
A failure to abide by the Rules of the Road does not necessarily amount to negligence. However, in the circumstances of the instant case, the failure of the plaintiff to walk on the side of the road facing the oncoming traffic and, his failure to carry a lamp or to wear any form of reflectorised clothing, – even a simple armband which could be kept constantly and easily in a coat or trousers pocket, – in my judgment amounted to a very high degree of contributory negligence. Even dazzled by the lights of the oncoming car and, even driving at a speed of somewhat less that 45mph with dipped headlights, it is probable that the defendant would have seen the plaintiff in time to have avoided colliding with him even with three motor cars passing in succession on the other side of this 17ft wide carriageway, had the defendant been carrying a lamp or wearing some form of reflectorised clothing.. The plaintiff told the court that he noted only one car coming towards him on the road prior to the impact. Though it does not really matter to the outcome of the case, as the defendant makes no complaint regarding the manner in which the two other cars were being driven, I think it entirely unlikely that he would have invented the presence of these two cars for no discernable advantage to himself.
In my judgment the plaintiff was more at fault and must therefore bear a higher degree of responsibility for this incident than the defendant. I consider that the plaintiff was 60 per centum at fault and the plaintiff 40 per centum at fault.
I accept the evidence of the plaintiff that he suffered an immediate onset of severe pain in his right leg with subsequent swelling and deformity in the area of the lower third of his right tibia. I am satisfied on the evidence of the plaintiff and from the medical reports, the contents of which were admitted into evidence, that the injuries sustained by the plaintiff were caused by the impact. I consider it unnecessary to determine whether the injuries were caused by the rear inside wheel of the van passing over the plaintiff’s lower right leg as he alleges, or by the manner in which he fell after being struck by the wing mirror of the van.
Dr. Patrick Breslin, the plaintiff’s customary general medical practitioner, in a report dated 18th July, 2004, made sixteen days after the incident, states that the plaintiff suffered a fracture of the right tibia and the right fibula. These injuries were repaired at Tullamore Hospital. The plaintiff was discharged on the 13th July, 2004, with a below knee plaster of Paris cast. He had limited mobility and was prescribed analgesics as required. Dr. Breslin stated that the plaintiff would be unlikely to return to full duties for some time. He considered that the plaintiff would make a full recovery but that a full prognosis at that time was difficult.
In his report, dated 24th January, 2005, Mr. David Cogley, Consultant Orthopaedic Surgeon, confirmed that the plaintiff had suffered a comminuted fracture of the intra-articular portion of this his right tibia. In the operating theatre an external fixator was placed across the ankle joint realigning the joint surfaces and maintaining reduction. The plaintiff’s leg was then elevated to reduce swelling. On the 5th July, 2004, under general anaesthetic, the plaintiff underwent open reduction and internal fixation of the ankle fracture. It was found that there was a loss of some of the articular cartilage on the medial aspect of the joint. X-rays taken on 21st July, 2004, showed the fracture was healing. The plaintiff was advised to continue non-weight bearing. This continued until the 8th September, 2004. The plaster cast was removed on 25th August, 2004. On 8th September, 2004, the plaintiff was permitted to become partially weight bearing, though his foot at that time remained swollen. On 6th October, 2004, he was advised to continue weight bearing with the aid of two crutches. The range of movements in his right ankle was limited and there was persistent swelling. He had no pain at this time. On 22nd December, 2004, Mr. Cogley noted that the fracture was well healed. The plaintiff then walked with a limp and his ankle still remained swollen. He was advised to continue with an exercise programme for a further three months.
On 23rd March, 2005, it was noted that the plaintiff had a good range of movement in his right ankle and had little pain or discomfort. Unfortunately some degenerative changes were noted in the ankle joint. On review on 28th September, 2005, the plaintiff continued to have a reasonable range of movements in his right ankle and was experiencing no pain. However, x-rays showed the onset of early degenerative arthritis in the ankle joint. Mr. Cogley considered that the plaintiff would probably require an ankle arthrodesis, though this was then a matter of conjecture as the important consideration was the amount of pain being suffered by the plaintiff as opposed to the X-ray appearance of the ankle. Mr. Cogley considered that this was likely to come about within a two to ten year period from the 11th November, 2005.
In a report dated 15th January, 2007, Dr. Breslin stated that the plaintiff had done well since the 5th July, 2005. He had a good range of mobility but his walk was slow and deliberate. Dr. Breslin noted that the plaintiff still suffered pain in his right ankle. He referred him to Mr. Cogley for a follow-up report. That report is dated 2nd April, 2008, and is based upon reviews, including x-rays carried out on the 1st October, 2007, and 1st April, 2008.
Mr. Cogley records that on 1st October, 2007. The plaintiff told him that he was getting on well with his work as a farmer. However, he had recently done too much walking and had developed a pain in the medial aspect of his right ankle which prevented him doing all his work. He was using a single crutch. On clinical examination there was a 13cm surgical scar over the lateral aspect of the plaintiff’s right ankle together with some healed “stab incisions”. X-rays taken at the time showed that the fracture had united but moderate degenerative arthritic changes were already evident. The plaintiff had a diminished range of movements in all directions with a 50 per centum loss of subtalar joint movement. Further x-rays were taken on 1st April, 2008, which confirmed this position. The plaintiff was then complaining of pain, primarily posteriorly and anteriorly over his right ankle if he had to walk on uneven ground or stood on a surface which suddenly gave way or if he walked for more than twenty minutes. He had no pain at night in his right ankle and was not taking analgesics for pain.
Mr. Cogley considered that the plaintiff would require a right ankle arthrodesis in the not too distant future. This would require hospitalisation for two to five days, followed by a period of three months recuperation in a plaster of Paris cast, of which the first two months would be non-weight bearing. Mr. Cogley noted also that the plaintiff has some stiffness in his right subtalar joint and considered that degenerative arthritis might occur in the subtalar and talonavicular joints in the long term which might require to be addressed.
Dr. Breslin examined the plaintiff on 7th May, 2008. He found that the plaintiff had limited movement in his right ankle, particularly flexion and extension. The plaintiff complained of suffering pain and discomfort in his right ankle. Dr. Breslin noted that the plaintiff remained quite active, but was satisfied that he would require further surgical treatment to his right ankle in the future.
The plaintiff was examined at the behest of the defendant, by Mr. Martin G. Walsh, Consultant Orthopaedic Surgeon, on 20th December, 2007. Mr. Walsh concluded the plaintiff had suffered a serious injury. He considered that in the none too distant future the plaintiff would be a candidate for a fusion of his right ankle joint because of his then current level of disability in his right ankle. Mr. Walsh was in general agreement with Mr. Cogley as regards the period of hospitalisation involved and the duration and circumstances of the recovery period. Mr. Walsh expressed the opinion that following a successful fusion there would be no contra-indication to the plaintiff returning to work as a stud farmer and sheep breeder, if he so wished. Fusion, he stated, was designed to relieve pain and thereby enable persons to walk with some degree of comfort. Mr. Walsh stated that 92 per centum of patients experienced very satisfactory results from this operation.
The plaintiff claimed that as a result of the increasing pain and limitation of movement in his right ankle and, with the prospect of an arthrodesis in the short term, he was unable to continue with his pedigree Belclare sheep breeding herd project and was unable to continue with his stud farm enterprise. Mr Walsh records that on the 20th December, 2007, the plaintiff told him this and, stated that he had changed over to forestry. It was the plaintiff’s evidence that following the accident he was unable to properly attend to the sheep, including to the proper tagging and registration of the progeny and the carrying out of blood testing of this progeny so that Genotype Certificates could issue enabling them to be sold as purebred pedigree Belclare sheep.
Having regard to the evidence of Mr. Martin G. Walsh, which was not in any manner gainsaid by Mr. Cogley, I am satisfied that there was nothing to prevent the plaintiff in continuing with these enterprises had he so wished. The plaintiff had informed Mr. Frank Hanley, a Certified Public Accountant, who gave evidence in the case for the plaintiff, that he had decided to abandon the pedigree sheep project and the stud farm business because they required hands on attention from himself which because of his injuries he was no longer able to provide. I am satisfied on the evidence, that this was a decision which the plaintiff took himself and, was not based on any medical advice.
It was perfectly plain from the evidence of Mr. Andy Egan, an Agricultural Consultant, who gave evidence in the case for the plaintiff, that the horses did not require the same amount of attention as the sheep and, there was very little handling involved in the sort of stud farm business which was being carried on by the plaintiff. Mr. Egan considered that the plaintiff might require some part time assistance in managing the sheep during the winter period as the flock expanded. One person for a few hours every day would, he considered be sufficient. If no family member was available to help, – the plaintiff is married with four remaining children, the son who usually assisted him having most tragically been killed in a road traffic accident in July 2005, – Mr. Egan considered that it would be possible to employ a person on a part time basis for about €12 per hour. I do not accept the suggestion made by Mr. Egan that this part time assistance would be necessary to such an extent that it, “would gobble up completely the profits of the enterprise”.
The plaintiff’s total land holding is only 25 acres without any modern or purpose built facilities. The plaintiff was fifty two years of age at the date of the incident and, was in receipt of €244 per week Farmers Allowance. In my judgment, as the initial nineteen Belclare ewes and rams were only purchased by the plaintiff on 5th August, 2003, and 26th September, 2003, it is impossible to state, as a matter of probability, that he would ever achieve a thirty ewe breeding herd, producing twenty to twenty five purebred Belclare ewes and rams for sale annually. According to the evidence of Mr. Egan, allowing for culling but otherwise assuming no problems, it would take a minimum of three or four years to build up such a herd by breeding. The only alternative Mr. Egan said would be for the plaintiff to buy in a breeding stock of forty Belclare purebred ewes and, this would require a great deal of money. The only receipt produced in court during the hearing of the case for the purchase of sheep was for eight purebred Belclare sheep, purchased by the plaintiff at Kilkenny Co-Operative Mart on 5th August, 2003 for €3,208 inclusive of VAT (€2,075 net of VAT). There was some evidence that three more Belclare sheep had been purchased by the plaintiff on unspecified dates from a Mr. B. (name given) in Carlow and, that others, the number seemed to be uncertain, were purchased at Athenry Mart on 26th September, 2003. The plaintiff gave evidence that he had seven rams and three ewes left. He had sold all the rest as purebred sheep but without a Genotype Certificate at between €200 and €150 for rams and €100 or less for ewes. The plaintiff stated that he had suffered a minimum loss of around €200 per animal. It is significant that the figures which he supplied to Mr. Egan were different. The plaintiff said in evidence that all these sales were made from his own house and to persons in the general area. He said he was paid in cash or by cheques. No receipts, cheques, statements or documents of any sort were produced in court nor were any witnesses called to confirm these purchases or sales.
Even if I was satisfied that the plaintiff was unable to continue with this purebred sheep project as a result of the injuries sustained in the collisions, which for the reasons stated, I am not, on this evidence I should have not option but to hold that the plaintiff had failed to prove any loss.
Similarly, in the case of the stud farm business, the plaintiff said that he advertised in “The Journal” and, a (largely illegible) photocopy document was produced but not identified in court. The plaintiff stated in evidence that he had given all his books to Mr. Egan. Mr. Egan in cross examination stated that the plaintiff had informed him that the fee income from the stud farm in the year 2003 was €15,200 and in the year 2004, was €16,200. This did not take any account of the fixed and variable costs that obviously were involved. Mr. Egan accepted that no receipts for stud fees had been produced to him. Mr. Egan and Mr. Hanley had both produced their projections of alleged future loss solely on the basis of these statements made to them by the plaintiff. Mr. Hanley accepted in cross examination that he had no documents whatsoever to support these figures. The plaintiff stated in evidence that he had disclosed these gross earnings, as well as the purebred sheep breeding project, to a social welfare officer in Longford whose name he gave. The plaintiff stated that this official was prepared to accept these enterprises and his earnings from them as a Back to Work Scheme so that the Farmers Allowance would continue to be paid to the plaintiff at the rate of €240 per week for two years and then at €120 per week for a further year and would thereafter stop. This officer was not called in evidence.
The plaintiff stated in evidence that he had an Irish Draught horse stallion and a Thoroughbred horse stallion at stud since 1999, an Irish Cob stallion since 1996 and a Connemara Pony stallion since 1985. The Connemara pony stallion had died. He had returned the Irish Draught stallion to its British owner who was a leading breeder of these horses and who had not made any charge for the use of the stallion. Mr, Egan gave evidence that the plaintiff so far as he was aware had only one stallion left but he did not know which one that was.
Again, if I had been satisfied that the plaintiff had to abandon this stud farm business because of the injuries which he had sustained in the road traffic accident, – which, for the reasons stated above I am not. – on this evidence, or rather lack of evidence, I could not possibly find that the plaintiff had suffered a loss in the year 2005 and in any of the years since that date or will continue to suffer a loss in the future. It is for the plaintiff to establish any alleged loss by credible and admissible evidence. Unlike Mr. Egan and Mr. Hanley the court cannot simply accept figures and propositions put forward by the plaintiff entirely unsupported by any acceptable, oral or documentary evidence.
For these reasons the court will disallow the plaintiff’s claim for loss of income to date and into the future. The other items of special damage were agreed between the parties in the total sum of €10,909.
The plaintiff undoubtedly suffered a serious injury. As result of that injury he now walks with a slight limp to the right. He has a 13cm medial scar over the
antero-medial aspect of his right ankle. He has a loss of 20 degrees of dorsi-flexion and 25 degrees of plantar-flexion in his right ankle joint. He has gross restriction of movement in the subtalar joint. On 20th December, 2007, Mr. Martin G. Walsh was satisfied on clinical examination that the plaintiff had significant disability in his right ankle as a consequence of the trauma suffered in the collision. I accept the evidence of the plaintiff that his right ankle is frequently swollen and that he suffers constant pain in that ankle. This is progressively becoming more troublesome. Walking on uneven or rough ground causes the plaintiff pain as does walking on even ground for more than thirty minutes. The plaintiff experiences pain at the end of the day and if he sits for any length of time with his foot in a dependant position. On the medical evidence I find on the balance of probabilities that the plaintiff will require a surgical fusion of his right ankle joint in the near future. While this procedure will, on the medical evidence, relieve the increasing pain and discomfort being suffered by the plaintiff it will result in his having a rigid inflexible right ankle, which will be an impediment to some and will entirely prevent other ordinary day to day activities. The plaintiff will be fifty six years of age on the 18th August next, so this must constitute a moderate continuing disability which the plaintiff will have to endure for many years to come, following upon a further significant surgical procedure.
I have had regard to the Personal Injuries Assessment Board book of quantum at pp. 24 and 25. For pain, suffering, discomfort and inconvenience to date I consider that the appropriate sum to be awarded to the plaintiff by way of general damages is €48,000. For pain, discomfort and inconvenience into the future I consider the appropriate sum to be €40,000. The total sum of damages is therefore €98,909. The plaintiff is entitled to judgment for 40 per centum of this amount. The court will therefore give judgment in favour of the plaintiff in the sum of €39,563.60.
Laffan v Quirke
[2012] IEHC 250,JUDGMENT of Mr. Justice Hogan delivered on the 27th June, 2012
1. The plaintiff in these proceedings, Mr. Laffan, is a forty-seven year old self- employed car dismantler. He is divorced, but he now lives with his Czech partner. He has four grown up children with his first wife and three by his present partner. Unfortunately, he was involved in an accident on 12th June, 2009, which has materially affected his quality of life.
2. Liability for the accident has been conceded by the defendants, so that in these personal injury proceedings I am now required to assess damages only. The accident itself occurred on 12th June, 2009, in Connolly Street, Mountmellick, Co. Laois when a van driven by the first defendant and operated by the second defendant collided with the plaintiffs own vehicle, an 02 Fiesta. The accident happened in the afternoon when the plaintiff was driving with his (then) two year old son in the backseat. As Mr. Laffan approached a right hand bend and the defendants’ van was travelling in the opposite direction, the van turned across his path with the intention of turning into the road on Mr. Laffan’s left. Unfortunately, as the van came across the road, it hit the right front corner of his car.
3. The impact of this was so severe that the airbags in the car deployed and hit Mr. Laffan in the face. His face was bruised, he bit his tongue, there was a friction burn from the sudden jerk of the seatbelt and there were injuries to his elbow, neck and back. The acrid smoke from the explosive charge of the airbag hung in the air and Mr. Laffan first thought that the car was on fire. He quickly opened the passenger door and lifted his child – who was by that stage screaming and traumatised – to safety. Mr. Laffan was then comforted and assisted by local residents. But before the emergency services arrived, Mr. Laffan felt pain in his leg and his neck. He also thought that he must have internal injuries, as he was spitting blood. It was only later that he realised that he had bitten his tongue. Mr. Laffan was then taken to Portlaoise General Hospital in a neck brace and backboard. He was shocked and frightened, not least when he contemplated that both his son and himself might easily have been killed.
4. Fortunately, however, Mr. Laffan had not suffered any fractures or internal injuries. Although he was very sore in the weeks and months after the accident (and his sleeping pattern was disrupted), he has (largely) recovered from the injuries which he suffered to his neck, sternum, shoulder and ankle, even if these soft tissue injuries still have the capacity to flare up and cause soreness from time to time.
5. His major complaint is that he continues to suffer from recurrent back pain which proves resistant to treatment. Thus, for example, steroid injections into his back administered by a pain specialist have, he said, had absolutely no effect beyond producing thoroughly unpleasant and frightening side effects. His sleeping patterns have been disturbed by the pain, although sleeping tablets have helped. While his back might prove unproblematic after a good night’s rest, the pain becomes progressively worse during the day, not least if he were in a standing or sitting position for a longer period.
6. Over and above all of this, there is no doubt, however, that the entire experience was a deeply shocking and unpleasant experience which has over the long term appreciably affected Mr. Laffan’s capacity to work and to enjoy life. Before I proceed to examine the nature of these injuries and their potential long term consequences, I should first record that the parties are agreed that the plaintiffs special damages (which include the damage to the vehicle) come to €2,109.
7. Mr. Laffan gave evidence that he has been a self-employed car dismantler since July, 1990. Although he left school at an early age, he became adept at doing heavy physical work and later proceeded to doing heavy physical work. In 1996 he set up his own end-of-life vehicle centre which involved the de-commissioning of vehicles. The serviceable parts he sold on and the non-serviceable ones he sold as scrap. His speciality was the repair of the gear boxes of mid-range transit vans. This was and is heavy physical work involving considerable upper body strength. I am quite satisfied that Mr. Laffan was absolutely dedicated to his business of which he had a specialist knowledge and he was further prepared to work long hours in a business which was his life’s vocation as much as it was his means of livelihood.
8. By the mid-2000s, however, Mr. Laffan found that his life was in some turmoil. He ran into difficulties with the Revenue Commissioners by reason of the late filing of his accounts and it would appear that he still has some tax liabilities. His first marriage was dissolved and the family home was sold. Thereafter, however, he met his new partner in 2005 and they now have three young children. Paradoxically, perhaps, the severe economic down-turn in the economy came as a boon for him, since there is a now a huge demand for the repair of motor trucks. Thus, as an economy measure, companies which might otherwise have sold such vehicles are now opting to have their vans re serviced by the installation of new gear boxes.
The extent of the plaintiffs back injury
9. This brings us to the heart of the plaintiff’s case. His claim is that he suffered from a debilitating back injury as a result of the accident which has simply not repaired itself over time. While he can still buy and sell vehicles and he can inspect the gear box, he maintains that by reason of his back pain he simply can no longer physically strip down gear boxes.
10. This assessment is supported his own consultant, Dr. Sean O’Rourke, who is a consultant in emergency medicine in the Midlands Regional Hospital. Dr. O’Rourke has seen and treated Mr.Laffan since the accident and in his report of April, 2012 he concluded that:-
“Mr. Laffan has persistent soft tissue injury to the neck consistent with whiplash. It is likely that these symptoms will be present in the long term. Mr. Laffan’s lower back pain is consistent with soft tissue injury but also represents pain due to degenerative disease of the lumbar spine as was identified in the MRI scan. He had no back pain prior to the accident. He has no symptoms or sign of nerve root irritation. These symptoms will persist in the long term. Further improvement is, however, possible with physiotherapy and I have advised him to return to physiotherapy and undertake a rehabilitation programme. He will not be in a position to return to heavy lifting which was an important part of his work prior to this accident. He will not make a full recovery.”
This view was confirmed by Dr. O’Rourke when he gave evidence before me. He noted that the MRI scan taken in September, 2010 had shown minor degenerative disease and a disc bulge in the back. While he accepted that back pain was to some degree subjective, he made the point that the plaintiff’s other soft tissue injuries had all but healed so that the injury to his sternum, neck, shoulders and knee had all significantly improved.
11. The consultant called by the defendants, Dr. Robert McQuillan, Director of Emergency Medicine South East Dublin, took a different view. In his report Dr. McQuillan concluded:-
“Following a road traffic accident this man sustained soft tissue injuries to his spine and right leg. He is making very poor progress to date to a large extent because of psychological overlay. He did attend counselling up to December, 2010 but appears to require further counselling and psychological support. He has a lot of physical complaints but, in fact, very little to find of significance. There is no doubt that he did have a tear of his calf muscle and has residual deficit in his muscle and could be experiencing some discomfort in that. I would expect little other physical disability related to this accident. Full recovery will not take place until he has had further counselling. There will be no long term complications.”
At the hearing Dr. McQuillan gave similar evidence along these lines
12. So far as the psychological problems to which Dr. McQuillan alludes, I should record that the psychiatric reports which were furnished to the court show that the plaintiff suffered from a mild moderate Adjustment Disorder in the wake of the accident. This condition was defined by the plaintiffs psychiatrist, Dr. F. P. O’Donoghue, as:
“The development of clinically significant emotional or behavioural symptoms which was developed within three months after the onset of the stressor. The clinical experience of the reaction is indicated either by marked distress that is in excess of all the experience given the nature of the stressor or by significant impairment in social or occupational function …”
Dr. O’Donoghue also thought Mr. Laffan exhibited some symptoms of Post Traumatic Stress Disorder, albeit “not to the level where one could diagnose the condition currently”. Dr. O’Donoghue thought that with a course of therapy over some ten sessions spread out over about a year “his psychological symptoms should disappear completely”. Dr. O’Donoghue also noted the plaintiff had a very distressing experience of morbid thoughts as a side reaction to a steroid injection in his back. So far as this is concerned, Dr. O’Donoghue concluded:-
“Unfortunately, he has had a distressing experience where he got a psychological reaction to a steroid injection, which can happen. (I am relying on his version of events, as I have not had sight of any other medical reports). Fortunately, this has almost disappeared, although he remains particularly wary of taking any medication which may be prescribed for him. His prognosis should be good.”
13. It is not easy to resolve this conflict of evidence between the two distinguished consultants in emergency medicine. This is especially so given that it is recognised that a diagnosis of the effects of a soft tissue injury is often impressionistic, relying sometimes in large part on the plaintiffs own life experience post-injury. To my mind, however, the plaintiffs account of these injuries seemed to me telling and convincing. He gave his evidence in a matter of fact fashion and I felt that the plaintiff more than anything wanted to return to the good days when he was master of his own business. His life was devoted to vehicle repairs and he conveyed the air of someone who, along with an evident devotion to his partner and children, was happiest when repairing gear boxes.
14. Put shortly, therefore, Mr. Laffan was and is thoroughly dedicated to his work and the concept of malingering or feigning or exaggerating injury is, I think, totally foreign to his nature. I therefore accept the plaintiffs account of his back injury and, indeed, his other injuries. These injuries were not insignificant and had many unpleasant side effects, including adverse psychological reactions to steroid treatment bowel problems. I propose, therefore, to award him €60,000 for past pain and suffering. While I appreciate that most of his injuries have healed, he will continue to have long term back problems, for which I propose to award him €30,000.
The extent of the plaintifrs loss of turnover and income
15. This brings me to the most problematic aspect of the case, namely, the assessment of loss of earnings and other occupational losses brought about by the accident. Mr. Laffan candidly told me that he had no kept proper records between 2004 and 2009 and his accounts for that period had, therefore, to be reconstructed and, in many respects, relied on Mr. Laffan’s memory. The accounts for the period from 2006 to 2011 were prepared in this fashion within the last few months
16. Mr. Laffan’s accountant, Mr. O’Sullivan, gave evidence that these accounts have been accepted by the Revenue Commissioners, albeit subject to the possibility of a tax audit. Mr. O’Sullivan very fairly accepted that the margin of error for these accounts was greater than would normally be the case for accounts of this nature, with few records to support them.
17. A further consideration is that since the accident Mr. Laffan has taken on another employee, Tomasz Plaskota, who he has trained in the business. Mr. Laffan accepted that, even if there never had been an accident, he would have had to take on another employee to do this work as he advanced in years. His complaint, however, is that he was obliged to retain this new employee at least a decade before this would have been otherwise necessary. In addition, Mr. Laffan has come to be reliant on this employee and his business suffers on those occasions when Mr. Plaskota is ill or is otherwise indisposed.
18. I accept fully that Mr. Laffan has incurred additional costs by reason of the necessity to employ Mr. Plaskota and he has also suffered some loss of business turnover as a result. Given Mr. Laffan’s strong physique and evident devotion to his work, I estimate that he would have been able to continue working on this hard manual labour until he was about 58 years of age. Measuring and assessing these figures is, however, an altogether different matter, not least having regard to the difficulties to which I have just alluded.
19. I accept in principle the figure of €43,149 for net after tax loss estimated by Mr. O’Sullivan to cover the years 2009 to 2011 in respect of the loss of income and the additional costs associated with the employment of Mr. Plaskota to date. These figures were broken down as follows:
2009: €9,574
2010: €18,967
2011: €14,608
20. However, I consider that, in view of the uncertainties and large margin of error associated with these figures, they should in justice to the defendants suffer a discount of some 20% to reflect these uncertainties. This is especially so where, as already noted, Mr. O’Sullivan acknowledged that these accounts had in large measure to be reconstructed with little in the way of supporting documentation. I will therefore award Mr. Laffan the sum of €35,519 in respect of net loss (after tax) of income to date.
21. So far as future losses are concerned, I propose in view of these evidential uncertainties to take the lower figure of €12,000 annual net loss suggested by Mr. O’Sullivan. Taking this figure and applying the appropriate multiplier until the age of 58, Mr. Tennent gave evidence that the appropriate figure for future loss would be €108,000.
22. This figure does not, however, take into account of any Reddy v. Bates deduction (Reddy v. Bates [1983] IR 141). While I appreciate that the plaintiff’s business is to a large degree counter-cyclical (i.e., so that it thrives in recessionary times) and that Mr. O’Sullivan did not think that the €12,000 quite captured the full measure of loss which Mr. Laffan might suffer if business were to have expanded in such times, it is nevertheless appropriate to factor in a Reddy v. Bates deduction.
Perhaps I suffer from hopeless optimism, but it is nonetheless realistic to expect that the economy will recover – and perhaps significantly recover – over the coming decade. Human nature being what is, just as we often mistake of assuming that booms will never end, we must nevertheless not make the converse mistake of assuming that these very difficult times will not end at some stage, even if this present recession is one of unparalleled severity. This means in turn that the plaintiffs business will suffer when the general economy recovers. Taking this fact and other possible adverse contingencies into account, I will therefore apply a 20% Reddy v. Bates-style deduction to that figure, bringing the figure for future loss to €87,400. This is, of course, a gross figure so far as any possible tax liabilities are concerned.
Conclusions
23. In conclusion, therefore, I propose therefore to award the total sum of €215,028 to the plaintiff, comprising €2,109 for agreed special damages, €60,000 for past pain and suffering, €30,000 for future pain and suffering, €35,519 for past net income loss and €87,400 for future (gross) income losses.
Fagan v Griffin
[2012] IEHC 377
UDGMENT of Mr. Justice Cross delivered on the 31st day of July, 2012
1. The plaintiff was born on 3rd July, 1980. He is the second of four children. His father died tragically of suicide when Peter was aged seven and the children were brought up by Peter’s mother.
2. Peter’s eldest sister, is married and a qualified teacher, his younger brother is a qualified architect in regular employment and his youngest sister is a barrister working as a judicial fellow.
3. Peter himself achieved some 450 points in his Leaving Certificate and qualified with a double degree in engineering and mathematics from TCD with a 2.1 honours.
4. After graduating he easily found work, first of all in Dundalk and then in a firm called Finn Heat in Dublin. He had a steady girlfriend. He got on well in work and with lots of problems, dealing with every quotation leaving the office and communicating with customers who would be architects or engineers on a regular hourly basis. He was well thought of in that job.
5. Peter had a wide circle of friends from his school and college days which he maintained.
6. On 2nd May, 2005, Peter was travelling from Dublin northwards to pick up his girlfriend to go for dinner with his eldest sister and her husband when near Navan, Co. Meath, a motor vehicle apparently crossed onto its incorrect side of the road and collided head on to the plaintiffs vehicle.
7. The circumstances of the accident are such that liability is not an issue and unfortunately the driver of the other vehicle died and the matter has been defended in a representative capacity.
8. The plaintiff has no memory of the accident last recalling jogging some hours previously in the Phoenix Park and initially believed that he had been involved in a hit and run accident in the Park. He also suffered from amnesia for a number of weeks post accident and I am advised and accept that this amnesia is permanent. Peter has suffered multiple injuries in the accident. He was rendered unconscious and after the accident registered 8/9 on the Glasgow Coma Scale which indicates a serious head injury. He was conveyed by ambulance to Our Lady of Lourdes Hospital, Drogheda, a CT Scan revealed significant cerebral oedema and a small subdural haematoma. A CT of the thorax revealed a fracture of the body of the sternum together with some minor lung contusion in the left base of the lung. A CT Scan of the abdomen revealed a small spleenic contusion and a moderate amount of free intra peritoneal fluid and the possibility of free intra peritoneal air in the peri umbilical area just right of the mid line. The plaintiff was intubated and ventilated and was admitted under the Intensive Care Unit. Calls were made to the neuro-surgical team at Beaumont and no bed was available there and Our Lady of Lourdes to keep the plaintiff ventilated in the ICU and repeat the CT Scan the following morning.
9. An emergency laparotomy was performed which revealed free peritoneal blood and two tears of the small bowel with bleeding from the inferior pole of the spleen and a tom piece of greater omentum line free of the pelvis.
10. Subsequently, a splenecitomy was performed and the non-viable segment of his small bowel was reseceted.
11. On 6th May, 2005, the plaintiff was extubated when his Glasgow Coma Scale had risen to 14/15 but he was noted to be neurologically very confused.
12. An MRI Scan was carried out on his brain on 20th May which was normal.
13. The plaintiff remembers waking up in hospital, was unaware of what had occurred to him and the his account of what occurred will be stated later.
14. After a trial discharge, the plaintiff was ultimately discharged from Our Lady of Lourdes Hospital on 27th June for a follow up care in the Rehabilitation Centre in Dun Laoghaire.
15. The psychical consequences of this accident are not in dispute. The plaintiff required the emergency operations as described above. He is left with some scarring which he did not remark upon and the court has not seen. He suffered double vision which persisted for some time and then healed itself but which was suggestive of a significant closed head injury which lead to fourth cranial nerve palsy on the right hand side which improved.
16. The plaintiff is left with some clicking sensation to his ankle and to some difficulty with his gait. The scars of which we have discussed above and which the court did not see and some soft tissue injury to his back.
17. The plaintiff also suffered an injury to his front tooth which was knocked out in the accident. A root canal treatment was performed and he will require further dental treatment. As things stand, his tooth sometimes clicks down and is uncomfortable.
18. He has suffered some diminution in the sense of taste and smell which relate to the head injury and the double vision which cleared up.
19. There is no contest in relation to the plaintiffs physical injuries and it is agreed that the plaintiff made a remarkable recovery thanks to the good offices of the medical team in Our Lady of Lourdes Hospital in Drogheda.
20. The issue in this case is the extent if any that Peter’s personality has changed since the accident. It is this matter that has dominated the discussion of this case over its eight days of hearing.
21. It is contended by the defence that the plaintiff prior to the accident was already the subject of a personality condition and it is alleged that the accident had little or any effect on him in relation to any personality change.
22. It is contended by the plaintiff that the plaintiff had a major personality change with impaired concentration and depressive mood and cognitive difficulty and is unable to sustain relationships at work, he developed significant family and work relationship difficulties and that his mental state dominate his life.
23. The plaintiff was able to successfully obtain a number of jobs since the accident as he impressed at interview and was able to commence a Masters Degree (which he hopes to complete towards the end of this year) but he was let go by all of his employers essentially because, it is alleged that, he could not cope with relationships at work. It is stated that this mental state is permanent and that he has a severe head and brain injury which has caused the personality change. It is alleged that he will have ongoing difficulty in competitive employment and that he will be unlikely to maintain any jobs he obtains and has a pattern of less and less satisfactory employment followed by periods of unemployment.
24. It is alleged that his life expectancy has been reduced and that he will need ongoing monitoring, psychological support, visits from brain injury specialist, ongoing physiotherapy and ongoing medication.
25. Prior to the accident, the plaintiff had never consulted any doctor about any psychiatric or psychological problems. His mother apparently noted one period of low mood about a month before the accident. His siblings recount that he was a happy and cheerful young man who got on very well with the family.
26. It is undoubtedly the case that when the plaintiff gave evidence he stated that he was never happy as a child, that he wanted to play football but was never allowed to do so and that he was “beaten up on a daily/weekly basis to play a lot of music”. He stated that he did not enjoy this but because he was keeping the equilibrium in the family stable, he did not put up a fight. He stated that if he ever did put up a fight he was reprimanded with a lot of “wooden spoons”.
27. This account of the plaintiffs childhood is important. It was accepted by Dr. John O’Connor who treated the plaintiff from 2006-2010 as psychiatrist and who gave evidence for the defendant on subpoena.
28. Originally, a number of the therapists treating the plaintiff recounted the plaintiff saying that he had difficulties in his childhood with his family. It is true to say that on other occasions, the plaintiff recounted difficulties confined to his mother and eldest sister and on others, difficulties in relation to all of his family and still on another occasion to Dr. Sinanan, the defendant’s consulting psychiatrist that he had “an excellent childhood”.
29. The plaintiffs present treating doctors, some of whom had been treating him since his initial referral to Rehab have referred to these differences in the plaintiffs perception and have indicated that the problems that the plaintiff suffers from as a result of the accident include a present perception from time to time that his childhood was extremely difficult. These experts do not accept that that the plaintiffs perception accord with the reality.
30. I have observed the plaintiff who was present in court on many of the eight days of the hearing and I have witnessed his anger which was frightening at times. All doctors indicate that Peter is a very nice young man and I have no doubt but that this is so.
31. I have also had the benefit of hearing from the plaintiffs mother and his siblings as well as the plaintiffs brother-in-law.
32. I have watched the plaintiffs family members sitting in court throughout much of the case unfortunately at a distance removed from Peter but showing obvious concerns for him and his wellbeing which cannot be motivated by any financial considerations.
33. I accept that Peter now feels that his family and indeed his mother may have been too controlling and that his youth was “horrific”. I do not believe that that is the case.
34. Unfortunately, Dr. O’Connor who had previously treated the plaintiff was not asked until the last day of the trial to make a judgment as to the accuracy of the plaintiffs complaints never sought to interview either the plaintiffs mother or his siblings. I believe that that is a fatal error in Dr. O’Connor’s analysis of the case and insofar as Dr. O’Connor, though undoubtedly a very caring and helpful treating psychiatrist of the plaintiff over a number of years, differs in his evidence from the other doctors who gave evidence on behalf of the plaintiff, as relates to the plaintiffs family situation, I prefer the other witnesses, who all had the important benefit of collateral interviews with the plaintiff’s mother and his siblings and also I accept the evidence of the plaintiff’s mother and his siblings and brother-in-law.
35. I have no doubt that being left a widow at an early age with four young children who she educated to a very high degree was a source of difficulties for both Mrs. Fagan and her family but I accept that they had a good happy relationship even if Mrs. Fagan might be seen to be overambitious for her children.
36. An important aspect in this case is the plaintiff’s pre-accident history and whether the plaintiff was at the time of the accident suffering from a personality defects or disabilities that essentially have not altered since the accident.
37. It is common case that prior to the accident that Peter was a young man who was in the first stages of a successful engineering career who had very many friends which he kept and a steady girlfriend and was able to handle the many events of a young life very well.
38. This assessment is supported by the plaintiff’s current treating professionals and indeed the defendant’s psychiatrist, Dr. Sinanan who stated in his most recent conclusion:-
“While he has had a reasonable work record since his head injury in 2005, his work record would suggest that in future he may have difficulty in holding down jobs.”
39. As well as the plaintiff’s doctors and those of the defendant’s team who have been referred to above, I was also given the evidence of Prof. Jack Phillips, Consultant Neurosurgeon on behalf of the defendants.
40. Prof. Phillips indicated that in his opinion that while the plaintiff had contusion and significant head injury, he did not have any serious brain injury. Prof. Phillips did not interpret the psychometric tests but indicated essentially that in the absence of a significant frontal lobe injury that he could not accept the contention of Dr. Delargy or Dr. O’Driscoll that the plaintiff suffered a severe brain injury which resulted in an Organic Personality Disorder.
41. Prof. Phillips was of similar view to Dr. O’Connor to the effect that the plaintiff likely had a pre-accident condition which has affected his ability at work and his relationships with his family and with friends subsequent to the accident.
42. Prof. Phillips in response to a question for the court did indicate that if it was accepted that the plaintiff did not demonstrate prior to the accident, any significant behavioural problems that this might affect his opinion. As stated above, it is the opinion of the court that indeed the plaintiff did not suffer from any pre-accident problem that was in any way affecting him. The temporal coincidence of the plaintiffs inappropriate behaviour which was noted at Our Lady of Lourdes Hospital and with some ups and downs over the years has continued and has had a devastating effect on the plaintiff in relation to his relationship with his family, his friends, his workmates, girlfriends and employers all in my opinion stem from the accident.
43. I was impressed and accepted the evidence of Dr. O’Driscoll who is an expert attached to the Rehabilitation Centre in Dun Laoghaire who works mainly in the United Kingdom.
44. It is my view that Dr. O’Driscoll’s speciality directly accords with the plaintiffs condition. Initially, it was hoped that the plaintiff was making a good recovery but the plaintiffs enthusiasm for work masked an underlying situation. It is agreed by all the experts to the fact that no brain injury was disclosed in the MRI Scan is not indicative that there was no brain injury at all. Brain injuries can occur that do not show up in the MRI Scan.
45. I accept the evidence of Dr. O’Driscoll that the plaintiffs personality has been profoundly affected and that he is unable to sustain satisfactory employment or indeed relationships.
46. I accept that the personality change and its consequences are likely to be lifelong which require ongoing professional support by a brain injury Rehabilitation community service.
47. I accept the evidence of Dr. Carton when she highlighted significant cognitive impairment effecting executive functioning, planning, organisation, modifying and moderating and sustaining a tension and learning of new information as well as memory.
48. I accept that this executive syndrome is likely to be lifelong and need Rehabilitation by a brain injury Rehabilitation team.
49. I accept that the plaintiffs manifest anxiety in the present symptoms as referred to by Dr. Carton and he has a risk of developing and significant anxiety or depressive disorder in the future.
50. I do not believe that prior to the accident, the plaintiff was suffering from any personality disorder. If he was suffering from such, I am clearly of the view that it was not apparent to anyone.
51. Dr. Salvatore Giangrasso, the Senior Clinical Neurophysiologist, who treated the plaintiff at the Headway Clinic and who gave evidence on behalf of the defendant having been flown over from Italy to that effect stated his opinion that Peter had such a personality trait pre-accident but that it might have only been apparent to a psychiatrist or other medical professional on examination. If such a disorder did exist then all the evidence suggests that up to the road traffic accident disorder was not manifest and was not giving any trouble to the plaintiff.
52. If that is the case, Dr. Giangrasso is correct and Peter’s psychological and psychiatric difficulties stem from a state that was dormant prior to the accident and which accident make symptomatic then little difference will be seen in the task I have to undertake. Whatever the plaintiffs pre-accident state, I believe he was functioning well socially from a work point of view, friends, family and girlfriends, in particular with work. I accept that for whatever reason the plaintiff is by now in a very different and less attractive situation. I accept that the plaintiffs present situation is as a result of the accident, the subject matter of the proceedings. Were it not for his accident, I believe that the plaintiff would have gone on to progress in his career, probably achieve his Masters earlier and have had the skills to diversify away from the building industry after the collapse or follow the significant numbers of his class who have found employment abroad in the engineering field. There are more engineers now employed in Ireland than were so when the plaintiff graduated.
53. Had the plaintiff been suffering from any syndrome prior to this accident which is the cause of his present symptoms, I accept the evidence from the plaintiffs treating doctors that this would have become manifest. Accordingly, on a balance I accept the opinion of the plaintiffs present treating doctors and in particular, Dr. Delargy and Dr. O’Driscoll that the plaintiff is still suffering from the effects of a significant brain injury he sustained in the road traffic accident.
54. When cross examined as to his view as to the seriousness of the plaintiffs brain injury, Dr. Delargy stated that he would rate the brain injury as one out often in respect of physical consequences, three to four out of ten in respect of cognitive consequences and six to seven out of ten in respect of personality consequences.
55. The plaintiff states that he woke up in Our Lady of Lourdes Hospital to “World War 3” being a row between his mother and his girlfriend. Undoubtedly, there were tensions as the plaintiff’s mother believed that his girlfriend and her family were taking over and tensions resulted in matters the plaintiff would undoubtedly have “picked up”. It seems that the plaintiff’s girlfriend was very attentive to Peter at the time but sometime while in Our Lady of Lourdes Hospital, her father indicated to Peter that the relationship would not last. Peter then while still in hospital obtained employment from a firm in Northern Ireland near where his girlfriend lived but while at the time, he seemed to blame his mother for the break up he now accepts that she had in fact found somebody else.
56. On admission to Rehab in Dun Laoghaire which was for a short period because the fact that the plaintiff was taking up the new employment, the plaintiff came under the care of the team there consisting of Dr. Mark Delargy, Consultant in Rehabilitation Medicine, Dr. Simone Carton, Clinical Neuro-Psychologist, who discharged the plaintiff in 2007 to the care of Dr. Giangrasso who acted as the plaintiff’s counsellor up to his departure to Italy who referred the plaintiff to Dr. O’Connor.
57. On Dr. Giangrasso’s return to Italy, the plaintiff again came under the care of the team from Rehab and more recently under the additional care of Dr. Ciaran O’Driscoll, the eminent Consultant Neuro-Psychiatrist.
58. Dr. Delargy whose expertise is renowned believes that Rehab essentially discharged the plaintiff too early and accepted his account which was optimistic as to his progress too readily. In any event, Dr. Delargy noted that the plaintiff was complaining of fatigue, double vision and was depressed and had difficulty in analysing and judging events. A collateral history which was important was taken from the plaintiff’s mother and various siblings which indicated a significant personality change since the accident.
59. In assessing the relevance of the accident to the plaintiffs present personality disorder, it is important to note that the therapists in Our Lady of Lourdes Hospital noted significant impairments and indeed inappropriate behaviour and personality difficulties while he was still in Drogheda.
60. A number of cognitive defects were ascertained by the psychologist in Rehab in Dun Laoghaire, he was found to be very vulnerable.
61. The plaintiff was, as stated, discharged from Rehab to commence work as an engineer in a company in Omagh. While there, he was referred to the local mental health team because of significant difficulties in relation to his inability to function with individuals. He indicated that he had a mental breakdown in Tyrone. He was unable to keep this employment.
62. Dr. Delargy went on to diagnose the plaintiff suffered a traumatic brain injury and had a significantly reduced level of consciousness and a swollen brain which required major surgery but he made a good physical recovery that his mental state was complex.
63. Throughout the remainder of 2006 and 2007, the plaintiffs condition stabilised somewhat.
64. I do not accept that his inability to hold onto the job in Omagh was due to fact that he was unable to learn the skills of it, as suggested by the defendants. The skills to be learnt were relatively basic to someone of his intellectual abilities. The plaintiffs difficulties in holding down this job and indeed in later jobs relate to his anxiety, stress and his inappropriate behaviour and inability to function with ordinary relationships at work.
65. It is not the function of this judgment to recount all of the evidence of the plaintiffs career since discharged from hospital. The plaintiff was able to complete certain education courses, though some quite simple courses he failed to complete. He commenced a Master’s degree in 2009 which he obtained a deferral of one year and has apparently achieved a 2.2 mark in his exam questions bordering on a 2.1 and hopes when his thesis is submitted towards the end of the year to achieve a 2.1 in his Masters.
66. While in Tyrone he was earning a salary that worked out at €31,000 per annum though this lasted only six months. He was unemployed between April 2006 to July 2006. He got a further job in Drogheda in July 2006 at €34,000 and he remained in employment as the identity of his employer changed and he followed particular directors but was made redundant in November 2010, being the only one to do so. The firm who employed him was taken over by a multinational firm which has now ceased operation in Ireland but has plenty of positions worldwide but the plaintiff was not offered any.
67. In August 2010, he worked with a firm J.B. Tierney at a salary of€24,000 which was a basic introductory level position in engineering and again he could not hold onto this job and he was offered a job selling in Peat’s Electronics but was made redundant in October prior to their Christmas rush. Though that firm has closed down and reopened, the plaintiff has not found work there.
68. I have heard the evidence from Pauline Coughlan, the plaintiffs Rehabilitation consultant which essentially confirmed by the evidence of Ms. Ciara McMahon, the defendant’s vocational consultant and the effects of this evidence to quote Ms. McMahon’s report that the plaintiff reported ongoing difficulties with multitasking and stress with meeting deadlines, communication and interpersonal issues and difficulties in sleeping, difficulties in sustaining work since his accident as he had been made redundant and Ms. McMahon stated and I accept:-
“Theoretically with his degree in mechanical engineering, Mr. Fagan could seek alternative employment outside the construction industry in areas with more opportunities at present such as design engineering or production/manufacturing industry.
However, his ongoing cognitive difficulties which affect his ability to acquire new knowledge may restrict him in terms of the types of alternative employment he seeks to possibly less complex areas of engineering and related work.
Mr. Fagan’s difficulties in accepting criticism coupled with his reduced ability to deal with stress, multitasking and interpersonal relationships are likely to negatively impact on his career progression.
At senior management level in any profession, there is an expectation that one is capable of planning, organising and multitasking at the highest levels. Managers also need to build and maintain a team and effectively delegate. Mr. Fagan’s current reporting which suggests he is likely to have major difficulties in these areas.
Mr. Fagan is, however, articulate and educated to a high standard. He has also gained circa five years experience within the building services engineering; therefore he is likely to impress potential employers at interview level and indeed to go on and secure employment. However, despite securing employment he is likely to find his ability to stay and progress in same is affected by the aforementioned issues of coping with stress, criticism dealing with people.
In my opinion, Mr. Fagan would continue to secure employment either within his field of engineering or alternative areas of his choosing, however, he is unlikely to progress to roles which carry significant responsibilities i.e. senior positions. His history post accident would suggest that retaining employment could present him with problems.”
69. That report differs not from Ms. Coughlan’s conclusions:-
“Peter Fagan was involved in a road traffic accident on 2nd May, 2005, in which he suffered serious injuries to his head, sternum, lungs, small bowel and spleen. Medical reports indicate that while he recovered well from his psychical injuries, his brain injury has left him with significant changes to his neuropsychological functioning including changes to his cognitive ability as well as marked changes to his personality. Reports go on to indicate that he suffered an organic personality disorder that affects his ability to (sic), the workforce and continues to affect his vocational and social and personal lifestyles. It is now over seven years since his accident and Mr. Fagan’s cognitive and neuropsychological problems have persisted continuing to impact his lifestyle. It is unlikely at this stage that he will recover further and he will acquire ongoing long term psychotherapy support and medication to help him on a day-to-day basis in the future.
Mr. Fagan has lost out on the possibility of having a successful and rewarding career that could potentially have reached the highest levels within his profession. The quality of his life and his ability to work in his chosen
field of engineering have been remarkably damages and he remains vulnerable and at risk as a result.
His ongoing cognitive difficulties which affect his ability to acquire new knowledge may restrict him in terms of the types of alternative employment he seeks limiting his possibly to less complex areas of engineering related work….”
70. It is common case that the plaintiff made a remarkable psychical recovery from serious and potentially from life threatening psychical injuries which themselves would entitle the plaintiff to significant compensation.
71. The contest in this case centres around the extent if any the plaintiff suffered a psychological or psychiatric injury or a brain injury with result in significant behavioural problems.
72. The plaintiff is undergoing counselling from a person who do not have experience in brain injury but I accept the report of Dr. Gibney that it would probably be unwise to interfere with the therapeutic relationship the plaintiff has developed with this person but that the support that ought be provided should strive not to duplicate what is already being provided by this counsellor and the psychological support recommended should be focused on the plaintiff developing the issues that arise directly from his brain injury and to improve his overall awareness of how the brain injury may continue to impact on this judgment particularly his social judgment.
73. Accordingly, the expert he is currently seeing as a therapist should continue and the expert that Dr. O’Driscoll has recommended should be there but on the more limited basis as suggested by Dr. Gibney.
74. In this regard, the court is merely anticipating the likely expenditure of the plaintiff and of course, the plaintiff has indicated that he will be guided by Dr. O’Driscoll in his therapeutic recommendations and is for the good.
75. Dr. O’Driscoll has indicated that the plaintiff should have long term physiological support in terms of a home visit monitoring initially twice weekly and then reducing by a non-family member.
76. Dr. O’Driscoll stated that the plaintiff should be encouraged to get advice from family members which would be encouraged and it is hoped with therapy that this will improve in the future.
77. I accept also that Dr. O’Driscoll’s evidence that the plaintiff would benefit from supportive psychotherapy with or without cognitive behavioural therapy from a team experienced in brain injury Rehabilitation. He will also require ongoing medication as stated.
78. It is to be hoped that the plaintiff will be able to sustain good relationships with his family who are clearly highly supportive of him and were clearly pained by his evidence. His family attended for substantial periods of the trial in what can only be described as care and affection for Peter and no clear ulterior motive. They would have heard at times, evidence that would have been very distressing for them and clearly they have an understanding that what Peter recounts does not correspond to the son and brother they knew prior to the accident.
79. I note and accept Dr. O’Driscoll’s view that there is a hope that the plaintiffs relationships with his family may improve with time and that there may be a more reliable support system for him. Accordingly, I do not believe that the plaintiff will require home visiting and monitoring for the rest of his life.
Damages
80. An actuary gave evidence on behalf of the plaintiff and the defendant and there was thankfully no real difference between them as to the figures.
81. The future loss of earnings to date have been agreed at €30,950.
82. Other special damages including medications to date have been agreed at €68,851.97.
83. Dental fees have been agreed at €7,300.
84. Future treatment has been set at €3,025. A greater figure arises if the rate of 2.5% for medical inflation allowed by O’Sullivan J. in McEneaney v. Monaghan County Council is allowed. In this case, Mr. Tennant indicated that the nature of the medical treatment will probably not engage the reasoning of O’Sullivan J. in the above case and accordingly I will accept the standard figure of 3% and that the cost of €3,025 is correct.
85. In relation to the future care of the plaintiff, I accept fully that the role of an actuary be advisory only. However, I found Mr. Tennant’s report most helpful. In relation to the issue of home visits which I note have been a cost at €500 per week for the year and €250 per week thereafter comes to a figure of€408,750 on a lifetime basis.
86. I believe that the plaintiff may not in fact need home visits for all of his life and hoping that I have not been doing the plaintiff a disservice, I calculate that figure as €300,000 which is the figure I shall allow under this heading.
87. The plaintiff has ongoing psychotherapy costs stated to be €250 per week for the next year and €250 thereafter for life. This amounts to €101,327. I accept that sum is reasonable.
88. I think that the plaintiff will need that amount of psychotherapy as recommended by Dr. O’Driscoll. In addition, the plaintiff has indicated that it is accepted that his current psychotherapy costs should be maintained and this is payable at €50 per week for a year and €50 per month thereafter which has been calculated €20,265.
89. I think that this is a service that may not be required for the plaintiffs life and should be a cost at €10,000 into the future which is the figure I shall allow for the continuation of the existing psychotherapy.
90. In relation to the plaintiff’s ongoing GP fees which will be required to be paid and once the plaintiff ceases to be on a medical card, this has been a cost without assuming medical inflation at €9,133 which I accept as correct.
91. The plaintiff’s additional medication take into account the Drugs Payment Scheme was costed by Mr. Tennant at a sum of€28,341 and €48,221 and I accept these figures.
92. The next matter to be considered is the plaintiff’s loss of earnings.
93. I believe that were the plaintiff not involved in the accident, he would by now have achieved his Masters Degree and would be in a position to earn a figure of at least €70,000 per annum. I believe that the plaintiff will, especially with counselling, be able to get employment but will not be able to function at anything like the level that he functioned before and that this will even with counselling cause him frustration. I think that the sort of earnings he was getting from Tierney at a relatively modest engineering position are, however, open to him. This is at a sum of €24,000 per annum.
94. Based on this gross figure per annum and allowing the plaintiff an earning capacity to the new retirement age of 68, it represents a net weekly loss of €460 coming to the sum of€593,400.
95. Mr. Tennant indicated that no reduction has made in Ready v. Bates in this calculation. A deduction in relation to Ready v. Bates is, of course, a matter for the court and assumes that in the general course of events, a person in work is unlikely to be able to secure that work at a salary throughout his life.
96. It might be argued that somebody in engineering would be at more risk than most but I note that even in Ireland there are now more engineers in employment than there were at the time the plaintiff commenced work as an engineer and that his classmates have jobs in construction engineering in other jurisdictions.
97. Mr. Tennant argued that taking into account that he had not allowed figures for any loss of pension and because of the fact that the medical evidence suggested that the plaintiff will have significant periods of unemployment which will mean that the figure of€24,000 achievable in Tierney’s is not going to be one that the plaintiff will earn every week of every year or anything like that. Accordingly, Mr. Tennant argued that no deduction should be made in respect of Ready v. Bates.
98. Mr. Byrne on behalf of defendants indicated that the top level of engineering, a greater reduction should be made in respect of Ready v. Bates though I did not follow his logic in that regard and while he accepted Mr. Tennant’s views, he still believed that some deduction should be made for Ready v. Bates.
99. I hope that I am not doing the plaintiff any disservice in this but I think that it is fair to say that were it not for the accident, the plaintiff is likely to have been unemployed for sometime, though as a result of the accident he is likely to be unemployed for significant periods into the future in any event. Taking into account, Mr. Tennant’s observations and accepting them in theory, I think a 10% reduction for Ready v. Bates is not unreasonable giving a total sum for loss of earnings into the future at €532,160.
100. Accordingly, in my calculation, the special damages in this case being past and other medications together with the costs of future care and medication as well as future loss of earnings, come to a total of €1,139,308.90.
Summary of Special Damages
(a) Loss of earnings to date €30,950
(b) Other special damages to date €68,851.97
(c) Dental fees €7,300
(d) Future treatment €3,025
(e) Cost of future care €300,000
(f) Cost of continuation of current psychotherapy €10,000
(g) Ongoing GP fees €9,133
(h) Additional medication (a) €28,341
(b) €48,221
(i) Loss of future earnings €532,160
Total €1,139,380.90
General Damages
101. The purpose of damages in a tort action is to put the plaintiff in the same position, insofar as money can do so, as he would have been had the wrong not been committed. The figure for special damages as outlined above may seem significant. However, as juries used to be advised in personal injury actions once the above figures have been achieved, the plaintiff has been awarded not a single cent in respect of the compensation for the injuries he has sustained.
102. On any view of the matter, the plaintiffs injuries are very significant indeed.
103. I will not outline these injuries again but prior to the accident, the plaintiff was on course for a significant career as an engineer with a good circle of friends to whom he related with good family relationships and a steady girlfriend. He has been left in the position of having a substantial insult to his life which is likely to be permanent.
104. His physical injuries alone are very significant. The effects on the plaintiffs life might indeed be described as catastrophic. The Supreme Court in Sinnott v. Quinnsworth Limited & Ors [1984] 4 ILRM at 523 indicated that a cap should be placed on general damages in circumstances in which a plaintiff has been awarded substantial sums for his past and future expenses.
105. In a comprehensive review of recent developments, Quirke J. in Maggie Yang Yun v. Motor Insurers Bureau of Ireland & Tommy Xing Bia Tao [2009] IEHC 318 indicated that in all the circumstances in taking into account the recent considerable downturn in the economy, the appropriate present “cap” and general damages was €450,000.
106. It is of course important to note that what was decided in Sinnott v. Quinnsworth was that there was a cap on general damages not that general damages in cases that fail to reach the standards of being the most extreme should suffer pro rata diminution.
107. Of course, as there is a “cap” in general damages, many cases may be entitled to a figure up to the level of that “cap”.
108. In this case, however, while in many ways catastrophic the injuries do not represent such an insult to the plaintiff that they can be categorised in the most extreme grouping.
109. While I am obliged to have regard to the book of quantum, I find that nothing in this book is of great assistance to me. This having been said, the plaintiffs injuries are very serious indeed and hoping that I am not doing him a service, I will assess the general damages in the sum of €150,000 for pain and suffering to date and €100,000 for pain and suffering into the future being a total of €250,000.
Conclusion
110. The total of the general damages and special damages on my calculation amounts to €1,389,308.90 for which sum the plaintiff is entitled to a decree.
Mullen v Minister for Public Expenditure and Reform
[2016] IEHC 295
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 5th day of May, 2016
1. The Applicant was born on the 28th of May 1978. He is married and resides at Slieve Bracken, Gortlee, Letterkenny, Co. Donegal. On the 9th August, 2009 at or near James Street car park, Westport, Co. Mayo, the Applicant was the victim of a vicious assault and battery. That the resulting injuries and loss were inflicted maliciously is not in question and on the 17th June 2015, the Respondent authorised the bringing of these proceedings.
Background
2. The Applicant comes from Tuam, Co. Galway. He realised his ambition of becoming a police officer when he passed out of Templemore in 2002. He was a very physically fit young man; being a regular attendee at his local gym and a committed participant in Gaelic football and soccer. A marriage in 2004 did not last and was subsequently annulled. He met his present wife, also a member of the force, in 2008. They married in 2013 and have started a family.
3. On the date of the assault the Applicant was on plain-clothes duty with a unit of the drugs squad in Westport where a street festival was taking place. There were a large number of people in the town. He and his colleagues were involved in carrying out searches for illicit drugs. The Applicant saw a group of young men behaving suspiciously. He identified himself as a police officer; the group scattered and, as it did so, he ran after one individual who appeared to be holding a suspicious implement under his arm. Just as the Applicant caught up with the assailant and was attempting to grab hold of his arm, the assailant produced a knife which he drove into the left hand side of the Applicant’s abdomen; repeating that action several times causing horrific internal injuries in the process.
4. The Applicant began to bleed profusely and developed hypovolemic shock. He was rushed to the operating theatre of Mayo General Hospital where he underwent an emergency laparotomy. This disclosed massive inter-peritoneal bleeding together with a laceration to the splenic pedicle and spleen, a large laceration to the splenic flexure of the colon, two lacerations in the distal part of the jejunum, a laceration of the mesentery of the colon and a retro-peritoneal haemorrhage. An emergency splenectomy, a repair of the colonic laceration and a small bowel resection with anastomosis, which was covered with a proximal loop ileostomy, was carried out.
5. Following surgery the Applicant was transferred to the intensive care unit where he remained for a week before being transferred to the surgical ward. A CT scan of the 11th August, 2009 showed a collapsed consolidation of the basal aspects of both lower lobes of his left lung with prominent pleural effusion. The knife entry wound, measured at 7cm, became infected and although he was discharged home from hospital on the 26th August, 2009, the Applicant had to be readmitted 3 days later. A further CT scan taken on the 1st of September showed an increase in the size of the splenic bed haematoma together with an interior abdominal wall sepsis secondary to the infection. This was treated with IV antibiotics. A pig-tail drain was inserted in the left upper quadrant in the bed abscesses. Chest physiotherapy was also commenced. A further pig-tail drain was inserted in the left pleural effusion on the 4th September, 2009.
6. At medical review on the 22nd September, 2009, the pig-tail drains were still discharging significant quantities of pus notwithstanding ongoing chest physiotherapy and IV antibiotics and as a result of which the Applicant was transferred to University College Hospital, Galway. On the 6th of October 2009 a left pleural decortication was performed. In evidence the Applicant described this procedure as being particularly painful. It transpired that he had developed MRSA in the operative wound whilst in hospital; one of the consequences was a loss of approximately three stone in weight.
7. The Applicant underwent an elective closure of his loop ileostomy on the 20th March, 2010. Initially the restoration of his intestinal continuity produced a positive response in bowel function. Unfortunately that was not maintained, became problematic, and requires ongoing treatment with medication. He regained weight but continued to suffer from epigastric discomfort as well as pain in his right shoulder, right hip and lower back. He also developed a lump in the upper left flank which was described as being roughly the size of a golf ball and which would protrude intermittently on certain movements. When provoked, this protruding lump would appear suddenly but just as suddenly would disappear. Difficulty was experienced in finding a comfortable position especially when sitting or sleeping. As a consequence of the splenectomy the Applicant required and was commenced on life long vaccination against infection.
8. As he mobilised and gradually recovered from the serious infection at the site of the main operation wound, the Applicant became more conscious of the pain which he was experiencing in his back, right hip and right shoulder in addition to his abdomen and chest symptoms. These problems were treated with intensive physiotherapy and physical exercises, including cycling; all as part of a rehabilitation program. However, he was unable to return to his hobby of swimming because he found that swimming strokes aggravated his right shoulder pain.
9. There is no issue between the parties as to the seriousness of the physical injuries. In that regard the Court has had the benefit of a number of medical reports which were admitted into evidence. Those for the Applicant were prepared by Mr. Khalid Asgar, Consultant Locum Surgeon, Mr. Mark Regan, Consultant General and Gastrointestinal Surgeon, Mr. Mark da Costa, Consultant Cardio-Thoracic surgeon, Mr. David O’Gorman, Pain Management Consultant, Dr. John F. Connolly, Consultant Psychiatrist, Mr. Peter Murphy, Consultant Psychologist, Mr. Eamon Rogers, Consultant Urologist, Dr. Enda Harhan ,GP, and Dara Dunne, Chartered Physiotherapist. The reports for the Respondent were prepared by the Chief Medical Officer and Dr Patrick Devitt, Consultant Psychiatrist.
10. Towards the end of 2010 and early 2011 the Applicant had recovered to a point were he was anxious to return to work. He was still suffering from painful symptomology, including involuntary spasms in the area of his left abdomen and chest which could occur on a varying number of occasions during the day. In addition to his physical symptomology, he had also developed significant physiological problems for which he was referred to Dr. John Connolly. When first reviewed by him in February 2010 it was noted that the Applicant complained of irritability, a lack of energy and motivation, disturbed sleep, feelings of being depressed, intrusive thoughts about the assault as well as anxiety and fears for the future. These problems were treated with a combination of medications to which there was an initially positive response. Unfortunately for him the Applicant also experienced certain well-known medical side effects from the medication including erectile dysfunction, which in itself was the cause of distress especially as the Applicant and his wife were anxious to start a family.
11. In February, 2011 the Applicant was certified fit to return to light duties. He applied for and was successful in being assigned to the position of Detective Garda. He was hopeful that his symptoms would gradually improve, especially once he had returned to work. However, his hopes were not to be realised. He continued to suffer from muscle spasms and had developed problems with his gall bladder as well as a left sided hernia. Mr. Regan was hopeful that further surgery, carried out in October 2011, to deal with these difficulties, would prove beneficial. The hernia was repaired and the gall bladder removed. Once again there was an initially positive response to these procedures until the Applicant began to mobilise post-operatively, the muscle spasms returned in a way which he described as being “worse than ever”.
12. In early 2012 he re-attended Mr Regan with a view to ascertaining whether there were other surgical options to deal with the ongoing problems. He was advised that muscle tissue could be removed but that that procedure would likely be associated with other problems. His evidence was that he felt Mr. Regan’s preferred treatment option was pain management.
13. The failure of the surgery carried out in late 2011 had devastating psychological consequences for the Applicant, not the least of which was that he never again obtained a fitness certificate to return to work. Ultimately he felt obliged to seek a discharge from the force on the grounds of ill health. His application in that regard was supported by the Chief Medical Officer and by Dr. Patrick Devitt.
14. Because of his fear of bodily intrusion by any implements, which developed after the assault, pain-killing injections – which the Applicant receives three to four times per year – are administered under general anaesthetic. The relief derived from these varies in effect and length, generally lasting from one to three months. However, the Applicant is never completely pain-free and, in addition to the symptoms in his back and abdomen, he continues to experience the muscle spasms. It is likely that this symptom profile will persist indefinitely.
15. The Applicant’s assailant was successfully prosecuted and jailed for the assault. In 2013 he was advised that his assailant was about to be released from prison and would most likely return to live in the Westport/Castlebar area. The Applicant was very venerable and became very frightened and stressed by this news. He did not want to live in the same locality as his assailant. Consequently, he and his wife moved to be close to her family in Letterkenny, Co. Donegal.
16. Apart from pain-killing medication, including injection therapy, the Applicant also continues to receive counselling and antidepressant medication to help him deal with his ongoing psychological sequelae. In this regard his evidence was that he foresees no end to these problems or any future for himself. Although he can drive short journeys and can go down to the local shops, generally he has become socially withdrawn, remaining most of the time at home; this being the only place where he feels secure and safe. As far as he was concerned, the particular course of cognitive behavioural therapy which he had attended to help him deal with the assault and its consequences vocationally only made matters worse.
17. The Applicant’s subjective reporting of his injuries and the consequences of those for him both physically and psychologically were corroborated by his physicians. Unfortunately for him their prognosis for this comparatively young man is bleak indeed.
18. In the course of the proceedings, the parties reached agreement in relation to a number of heads of damage claimed, namely:
(i) Loss of medial and travelling expenses to date;
(ii) loss of earnings to date; and,
(iii) loss of future medical expenses, medication and travelling costs.
However, apart from the assessment of general compensation, the Applicant’s claim for future loss of earnings and other pecuniary benefits remained in issue, as did the appropriate multiplier to be applied to that claim.
19. The essential difference of opinion between Dr. Connolly and Mr. Murphy on the one hand, and Dr. Devitt on the other, concerns the Applicant’s capacity to recover to a point where he would at least be able to engage in some form of employment. In essence, Dr. Devitt’s view was that, especially once the litigation had been resolved and with a continuation of appropriate treatment, the Applicant would gradually improve to a point where he would be able to engage in worthwhile employment of a clerical/administrative nature involving the use of a computer in a non-stressful work environment, whereas Mr Murphy and Dr. Connolly thought that scenario highly unlikely.
20. The Applicant was vocationally assessed on behalf of the Respondent by Mr. Roger Leonard and on his own behalf by Ms Paula Smith. Her report is dated the 25th of May 2015. Mr. Leonard had that report as well as the medical reports prepared on behalf of the Applicant and Respondent when compiling his own report of the 27th of January, 2016. Based on the views of Dr Devitt, and on his own assessment, Mr. Leonard set out in detail several rates of pay for clerical/administrative work which would reflect the potential earnings available to the Applicant in the event of his being able to access that or similar work in the future.
21. Having carried out the assessment and having regard to the other expert reports available, he expressed the opinion that it was very difficult at that point in time to be optimistic in relation to the Applicant’s final vocational outcome. In his view it would be necessary for the Applicant to increase his involvement in activities outside of the home so that he could begin to participate in a regime such as a vocational training course; that would be a first step in a return-to-work programme. Significantly, he added that he did not think that the Applicant had the ability to do that at the time of his assessment.
22. On the basis of her assessment and the expert medical reports available to her, Paula Smith expressed the opinion that the Applicant was unlikely to be capable of returning to the labour force unless his continuing physical and psychological difficulties resolved or improved to a point which would make that possible. Her view was that if those difficulties were to persist into the future then she would be very pessimistic as to the likelihood of the Applicant ever being able to secure open employment.
23. Dr. Connolly, who also gave evidence at the hearing, expressed the opinion that the prognosis for the Applicant’s post-traumatic stress disorder was very poor. He described the Applicant’s psychological condition as severe and as having profound effects on his mood and personality. In his view the Applicant had a very poor perception of himself and his abilities, moreover, his anxiety and depression continued to be fed by the persistence of the symptomology associated with the physical injuries.
24. Whilst the Applicant had obtained some benefit from counselling in 2011, Dr Connolly’s evidence was that that had to be seen in context. He had managed to get back to work – albeit on light duties – he was hopeful of further improvement and had a medically supported expectation that the October 2011 surgery would be successful. Unfortunately it wasn’t and although he accepted that a particular form of cognitive behavioural therapy might have some role to play in the future, it was his evidence that that would be marginal and he would not be recommending it to his patient.
25. Although the Applicant himself expressed the hope that he would get some closure once the litigation had come to an end, Dr Connolly stressed the significance of the broad agreement between all of the physicians in relation to the seriousness of his physical injuries and the impact that these were likely to have on his psychological sequelae. In Dr Connolly’s view, this was the central matter which had to be borne in mind when the Applicant’s vocational future was being considered. Proceeding thus it was highly unlikely that the Applicant would ever reach the point where he would be capable of re-entering the work force at any meaningful level, if at all.
26. Dr. Devitt, who also gave evidence and was largely in agreement with Dr. Connolly as to diagnoses, differed from him in relation to prognosis. He had hoped that the Applicant would have made more progress as a result of the cognitive behavioural therapy undertaken in 2013. He had been involved in arranging that programme and also in supporting the application to retire from the police force on grounds of ill health. In his opinion the conclusion of litigation and the severing of his relationship with his former employers would afford the Applicant a new opportunity to rebuild his life.
27. Cognitively, the Applicant was intact and it had not been seriously suggested otherwise on his behalf. He thought that Ms Smith and Dr. Connolly were too pessimistic and that, though progress would be slow, ultimately felt that the Applicant would reach a point where he would be able for employment of an administrative type in a non-stressful work environment. Accordingly, he thought that every effort should be made to encourage the Applicant to try and achieve that objective. Moreover, it was his opinion that a different form of cognitive behavioural therapy concentrating on wellbeing and functioning rather than coping with duties as a police officer, did have a clinically significant role to play in rehabilitation.
28. Dr. Devitt accepted that any improvement would be slow and that much would depend on the Applicant’s perception of pain. Although confined to light duties, he had supported the Applicant’s decision to retire from the Gardai on grounds of ill health particularly because there was, in his view, a connection between his role in the Gardai and the profoundly negative and ongoing consequences of the assault. His evidence was that the impact of severing his connection with the Gardai would not be felt by the Applicant until after the litigation had concluded. Whilst he accepted that the Applicant was living a life which was essentially centred on his home and that, for all intents and purposes, he had become socially withdrawn, his opinion was that if the Applicant was given appropriate psychological support and assistance aimed at dealing with that aspect of his life then there was room to be more optimistic concerning the future; the Applicant was an intelligent man and, objectively, it was quite clear that he was still able to function albeit at a much reduced level.
29. In that regard, Dr Devitt accepted that the Applicant’s ability to function would be affected by the level of medication being taken by him. As to that, however, it was his view was that a reduction in the level of medication might well benefit the Applicant in dealing with his psychological problems and would consequently help him achieve a better level of functioning.
Submissions
30. It was submitted on behalf of the Applicant that in relation to the assessment of general compensation, his injuries, both psychological and physical, were permanent and serious and that the degree of seriousness, together with the absence of any dispute as to the permanency of the injuries, was such as to inform the Court in making an award of general damages at the very highest level. Counsel for the Applicant relied on and referred to a number of authorities: Bennett v Cullen [2014] IEHC 574. Mansfield v the Minister for Finance and others [2014] IEHC 603, Murtagh v the Minister for Defence [2008] IEHC 292, Purcell v Long [2015] IEHC 385, Flynn v Long [2015] IEHC 401, Doherty (A person of Unsound mind not so found) v Quigley [2011] IEHC 361 and Nolan v Wirenski [2016] IECA 56.
31. Whilst it was accepted by counsel on behalf of the Respondent that the Applicant had suffered significant physical and psychological injuries as a result of the assault, it was submitted that these, when taken together, were nowhere near what could be considered the “top end” of the scale of general damages which could be awarded for personal injuries and in this regard he relied on and referred the Court to: Kearney v McQuillan [2012] IESC 43, Payne v Nugent [2015] IECA 268 and Nolan v Wirenski, supra. The attention of the Court was drawn by counsel for the Respondent to the fact that all of the medical witnesses considered the Applicant to have full cognitive function and to be a very intelligent man. Accepting that he had suffered and would suffer from physical and psychological sequelae it was, nevertheless, clear that he possessed the full use of his body: he was able to mobilise generally, live independently, could drive a car, had married and had started a family. It was submitted that the Applicant had travelled to and stayed in Dublin independently and that the way and manner in which he had acquitted himself in court was indicative of a man who, whilst seriously injured, was nowhere near as incapacitated as would be required of a very seriously or catastrophically injured plaintiff deserving of an award of compensation in the region of the highest level for general damages appropriate to personal injury cases of that kind.
Decision on general damages/compensation
32. The general and special compensation awarded under the Garda Siochanna (Compensation) Acts 1941 and 1945 (the Acts) is equivalent to general and special damages awarded in a personal injury action arising as a result of a wrong. The term ‘compensation’ rather than ‘damages’ is appropriate and employed in the Acts because the Minister, although liable to satisfy the judgment of the Court under statute, is neither a wrongdoer nor a party vicariously liable for the wrongful acts giving rise to the proceedings. Whether or not it is ‘compensation’ or ‘damages’ with which the Court is concerned, the assessment of the amount of the award in either case is governed by the same legal principles. See Murphy v. The Minister for Public Expenditure and Reform [2015] IEHC 868.
33. Having regard to the submissions made on behalf of the Applicant in relation to the level at which the Court should assess general compensation consideration must be had to the so called “cap” on general damages. This was considered and pronounced upon in Sinnott v. Quinsworth [1984] ILRM 525 and is a matter which has been revisited in many subsequent cases up to and including Nolan v Wirenski [2016] IECA 56. These authorities must be viewed in the context and with regard to the particular circumstances applicable to each case.
34. From these cases some general principles applicable to the approach of the Court to the assessment of general damages in very serious or catastrophic injury cases can be ascertained. In Yun v MIBI and Tao [2009] IEHC 318, Quirke J. in a case where catastrophic injuries had been suffered enunciated these as follows :
(i) “Where the claimant has been awarded compensatory special damages to make provision for all necessary past and future care, medical treatment and loss of earnings, there will be a limit or “cap” placed upon the level of general damages to be awarded.
(ii) When applying or viewing the ‘cap’ on general damages the court should take into account the factors and principles identified by the Supreme Court in Sinnott v Quinsworth [1984] ILRM 523 and in MN v. SM [2005] IESC 17 including ‘contemporary standards and money values’.
(iii) Where the award is solely or largely an award of general damages for the consequences of catastrophic injuries there will be no ‘cap’ placed upon the general damages awarded.
(iv) Each such case will depend upon its own facts so that; (a) an award for general damages could, if the evidence so warranted, make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of trial, (b) life expectancy may be a factor to be taken into account and, (c) a modest or no award for general damages may be made where general damages will have little or no compensational consequence for the injured person.
(v) There must be proportionality between: (a) court awards of general damages made, (i) by judges sitting alone and, (ii) in civil jury trials and, (b) by statutory bodies established by the State to assess general damages for particular categories of personal injuries.”
35. The legal objective in the assessment by the Court of general compensation or damages is to determine a figure which is fair, reasonable and proportionate to the injuries suffered. In Sinnott, O’Higgins C.J. expressed the view that a limit on what might be awarded should be sought and recognised having regard to the facts of each case and the social conditions obtaining in society including ordinary living standards and the level of incomes. It follows that the ‘cap’ to be placed in an appropriate case on an award of general compensation or damages is to be ascertained against a background of the economic circumstances, including ordinary living standards and the value of money in society at the time when the assessment is made.
30. The well known phrase “moving with the times” could hardly be more apposite in this context and is well illustrated by the approach taken by the Court in Yun v. MIBI and Anor (supra) when deciding in 2008 on the real value of the ‘cap’ set in 1984 and how the economic circumstances prevailing and likely to prevail at the time of the assessment should be reflected in arriving at the net real value.
31. Having made an upward adjustment by increasing the equivalent value in 2008 of the 1984 ‘cap’ of £150,000, from €400,000 to €500,000, Quirke J. then made a downward adjustment which had the effect of reducing the equivalent value of the 1984 ‘cap’ to €450,000. This was necessary in order to take into account the anticipated reduction in wealth and living standards in the State which had commenced in early 2008 and which were expected to continue for a further period in excess of five years.
32. The social and economic circumstances prevailing were significantly less than auspicious at the time when the cases of Yun v. MIBI and Kearney v. McQuillan were decided. Had it not been for external assistance, I think it reasonably well-accepted by economists of all hues that for all practical purposes the State would have been bankrupt. If the official pronouncements of the Department of Finance, the Revenue, and the OECD are to be considered reliable commentators of current economic circumstances and the state of the economy in general, a significant recovery is underway: the State is enjoying the highest economic growth rate in the EU, unemployment and emigration levels have fallen dramatically, property values are recovering and there is a clamour for the restoration of pay to pre recession levels.
33. It would seem to me to follow that these factors, if maintained, must necessarily impact the present ‘cap’ on general damages of €450,000, determined as it was at a time when very different economic and social factors prevailed and therefore warranting a review of that figure to take the changes in those factors which have occurred since into account. On the face of it, an adjustment upwards would seem warranted.
34. In a case where such considerations arise it is the economic and social factors prevailing and most likely to prevail at the time when the assessment is being made by the Court which will inform the relevant ‘cap’ to be applied to the level of general damages or compensation rather than the ‘cap’ determined 5 or 10 years earlier if at that time the economic and social circumstances considered and taken into account by the Court were markedly different. However, as that argument was not advanced on this application I will make no further comment upon it.
35. For the sake of clarity, however, I consider it appropriate to observe that absent significant claims in respect of pecuniary losses into the future, such as claims for future medical treatment, care, accommodation, aids, appliances and loss of earnings, the Court is not constrained by the so called ‘cap’ applicable to cases involving such claims; though this does not mean that the figure representing the ‘cap’ cannot be taken into account in a general way when an assessment of appropriate general damages or compensation is being made in a non ‘cap’ case. See Gough v Neary [2003] 3 IR 92 at 132.
36. In such a case an award of general damages or compensation may not only exceed but exceed substantially the ‘cap’ applicable to an award of general damages in a case where substantial future loss claims are made. See B. v C. [2011] IEHC 88 where Clarke J. awarded €700,000 in respect of injuries which, whilst very serious, were less than catastrophic and where the case did not involve a claim for substantial future medical treatment or care costs.
37. I am satisfied that that situation nor those circumstances arise in this case since the Applicant has advanced very significant pecuniary claims by way of special compensation both to date and into the future. In this regard the parties have agreed special pecuniary losses to date, to include medical expenses and loss of earnings, in the sum of €100,000. Agreement has also been reached on future special pecuniary loss in respect of medical expenses, medication and travelling expenses in the sum of €200,000. However, a substantial claim in respect of future loss of earnings and other pecuniary benefits falls to be determined by the Court. When these claims are taken together I am quite satisfied that this is a case to which the generally accepted ‘cap’, currently considered to be €450,000 in respect of general compensation, applies; as to that see Nolan v Wirenski [2016] IECA 56.
Conclusion on general compensation.
38. As far as the Applicant’s physical injuries are concerned, these were life-threatening necessitating a series of significant operations. The Applicant has been left with cosmetically disfiguring operation scars in addition to the scarring left by the knife entry wound; he had a distressing temporary colostomy; he developed a hernia and had his gall bladder and spleen removed, the consequences of the latter exposing him to a lifelong increased risk of serious infection for which he will always need to take prophylactic medication. The Applicant continues to be symptomatic with back and abdominal and left flank pain with associated intermittent involuntary spasms in that area. He derives temporary relief from intercostal injections administered three to four times a year and is likely to require ongoing interventional treatment to help control his multifactorial symptomology for the foreseeable future. Even on the most optimistic view of the future he will be left with permanent injuries.
39. The Applicant also developed significant post traumatic stress disorder symptoms; he became depressed, and was rendered emotionally and psychologically fragile. One of the consequences of the medication received was the development of erectile dysfunction which requires but does respond to medical treatment. In addition to daily antibiotics, the Applicant is on a concoction of medications to help him deal with his physical pain and psychological sequelae. He requires and benefits from psychological intervention and antidepressant medication and is likely to do so for the foreseeable future.
40. Whilst there was little or no controversy between the parties in relation to the seriousness and the consequences of what are permanent injuries, I am satisfied in relation to the issue concerning his psychological sequelae that the conclusion of the litigation and the severing of his connection with the police force are likely to have a beneficial effect on him. In this regard I prefer the evidence of Dr. Devitt who was involved in the Applicant’s treatment, was sympathetic to him, and supported his application to retire. I think it pertinent to observe that I was impressed by the Applicant’s presentation in court, by the way in which he acquitted himself when giving evidence and by his own hopes and aspirations including a belief that the conclusion of these proceedings would likely bring closure and enable him to get on with his life, though recognising as I do that he will continue to require long-term appropriate psychological intervention, support and medication in addition to medication and treatment for his ongoing physical injuries.
41. For all of these reasons, upon the findings made and having regard to the principles of Tort law applicable to the assessment of general compensation under the Acts, it is the view of the Court that a fair and reasonable sum to compensate the Applicant for pain and suffering to date commensurate with his injuries is €250,000 and in respect of future pain and suffering the sum of €150,000, making it an aggregate sum of €400,000.
Claim for future loss of earnings and loss of future pecuniary benefits.
42. Retired Superintendent William Keaveney gave evidence that he was the Applicant’s superintendent in the period from 2001 to 2002. The Applicant made a serious impression on him as somebody who was likely to progress in his career. He discharged his duties in a very efficient manner, displayed initiative and was well disposed towards assisting other members of the force. It was partly due to these attributes that he was selected as a duty guard for students as well as being the officer designated to assist other members of the force who had experienced trauma.
43. With specific regard to the Applicant’s promotional prospects, Mr. Keaveney gave evidence that the Applicant had taken and passed his Sergeants exams and had successfully completed the interviews for that rank in 2006/2007. He impressed as an excellent candidate; he had no doubt but that the Applicant would by now have secured the rank of Sergeant. In support of that view, he referred to the appointment of Garda Malone as a Sergeant. He was a contemporary of the Applicant who sat and passed his exams and interviews at the same time. Insofar as any further promotion was concerned, he was confident that the Applicant would have been able to sit his Inspector’s exams and thought it reasonable that he would achieve the rank of Inspector by 2020.
44. As has already been referred to earlier in this judgment, the Applicant was vocationally assessed by Mr. Roger Leonard and Ms Paula Smith. Their reports have been admitted into evidence and have been considered by the Court.
45. It is the Applicant’s case that he would have retired from the Gardai at age 60 and that, as is commonly the case with members of the force on retirement he would have sought employment to supplement his pension until he was 68 years old. In her report of the 7th of December 2015, Paula Smith listed a number of different types of occupations traditionally secured by retiring Gardai producing incomes ranging from €25,000 to €35,000 gross per annum. In an earlier report dated the 29th of May 2015, Ms. Smith set out the findings of her assessment of the Applicant and expressed the opinion that it was unlikely that he would be able to return to the labour force in any capacity.
46. Mr. Leonard, referring to the views of Dr. Patrick Devitt in his report of June 2014, details rates of pay for clerical/administrative workers which would reflect the potential earnings available to the Applicant should he be able to access that or similar work. He went on to observe, however, and for reasons given that based on his assessment of progress to date it was very difficult to be optimistic that the Applicant would achieve a return to the workforce. In the first instance, it would be necessary for the Applicant to increase his involvement in activities outside the home so that he could begin to participate in a regime such as a vocational training course and which would be a first step in a return-to-work programme. However, it did not appear to Mr. Leonard that the Applicant had the ability to do that at the time of assessment.
Decision on future employability.
47. Considering all of the medical and vocational evidence available to the Court there is not, in my view, any basis to support a finding that the Applicant would ultimately be able to secure employment as a project administrator or office manager since it is unlikely that the Applicant would be able to cope with the stresses normally associated with such positions furthermore a serious question mark arises in relation to capacity even in relation to the most basic of employments referred to by the vocational consultants.
49. Whilst I prefer the evidence of Dr. Devitt concerning the prospects for some recovery by the Applicant in relation to his psychological sequelae, his opinion that the Applicant had a reasonable prospect of returning to the workforce, albeit in a limited capacity must, in my view, be read in conjunction with the vocational evidence.
48. Mr Leonard was aware of Dr. Devitt’s opinion at the time when he wrote his report. Nevertheless, and having regard to the other reports available to him at the time, including that of Paula Smith, and considering his own assessment of the Applicant, his view of the Applicant’s presentation was one of a person with very significant physical and mental health difficulties; he was not optimistic about the Applicant’s ability to participate in a vocational training programme nor was he optimistic in relation to final vocational outcome.
Conclusion on employability
49. It seems to me, although differently expressed, that there is no significant difference of opinion between Ms Smith and Mr. Leonard in terms of the Applicant’s future vocational outcome. When all of the physical and psychological factors are taken into account – and in this regard a holistic approach is apposite – it is the view of the Court that such improvement as may likely occur in relation to the Applicant’s injuries is not such as would result in his being able to secure and retain a stress-free basic employment resulting in any meaningful income.
50. In this context, it is also considered appropriate to observe that the Applicant is in receipt of a supplementary pension of €13,519 per annum which is awarded on the basis that the Applicant is unable to work. Were the Applicant to secure paid employment any income received would directly impact upon this allowance which would reduce proportionately to the income received up to the current maximum limit payable.
51. Pensions, including supplementary pensions, are deductible in valuing future loss of earnings in applications under the Garda Síochána Compensation Acts. Even if the Applicant managed to return to some sort of stress-free basic employment on my view of the evidence the Court would not be warranted in coming to the conclusion that, as a matter of probability, the type of employment he might secure and retain would be such that, having regard to the amount of his supplementary pension, it would impact on his claim for future loss of earnings.
Decision on promotion
52. I accept the evidence of retired Superintendent Kearney that the Applicant would, as a matter of probability, have been promoted to the rank of Sergeant. In this regard I consider it significant that he had already sat and passed his Sergeant’s exams and had satisfied interview criteria for appointment as a Sergeant. I am fortified in that finding by the appointment to the rank of Sergeant of a contemporary of the Applicant, Garda Malone.
53. It was submitted on behalf of the Respondent that, whatever about promotion to the rank of Sergeant, the suggestion that the Applicant would have become an Inspector by 2020 or any date is simply a leap too far. I accept that submission. Although retired Superintendent Kearney was confident that the Applicant would have been able to sit and pass his Inspector’s exams and that it was reasonable to infer that the Applicant would be appointed to the rank of Inspector in or about 2020, that proposition is subject to such uncertainties and imponderables as to render it highly speculative. Accordingly, the Court cannot find as a matter of probability that the Applicant would be promoted to the rank of Inspector had he not been injured and had been able to remain in the Gardai.
54. Actuarial evidence was given on behalf of the Applicant and the Respondent and the reports prepared by the actuaries were admitted into evidence. Although somewhat different approaches were taken, the actuaries were in the final result broadly in agreement concerning the relevant assumptions made.
55. Proceeding on the assumption that the Applicant would have been promoted to the rank of Sergeant by December 2015, he will suffer an ongoing net annual loss of income in the sum of €17,337; this being the difference between his Garda pension and the salary he would receive as a Sergeant to age 60 (after all deductions). The capital value of that loss without any Reddy v Bates contingencies (Reddy v Bates [1983] 1 I.R., see infra) deduction calculated on a 1% actuarial rate of interest is €360,306, and at 2.5% is €332,334.
56. In relation to the claim for loss of earnings and pension benefits between the age of 60 and 68, the evidence of the Applicant’s vocational consultant was that the current levels of income achievable from the kind of occupation commonly secured by retiring members of An Garda Síochána were €35,000, €40,000 and €45,000, respectively. Assuming a retirement pension applicable to the rank of Sergeant in the sum of €22,060, the Applicant’s actuary calculated the capital loss applicable to these sums on a 1% actuarial rate of interest as being €73,902, €89,925 and €105,631, respectively. Applying a 2.5% actuarial rate of interest the equivalent figures were €60,794, €73,975 and €86,887.
57. It was accepted that the Applicant would suffer no loss of pension from age 68 had he remained a Detective Garda. However, a loss would arise had the Applicant been promoted to the rank of Sergeant and, in this regard, the capital value of the loss of pension from age 68 for life on a 1% actuarial rate of interest was given at €19,075 and at the 2.5% rate at €13,085.
58. The Applicant received a net lump sum of €10,574.82 on his discharge from the force in June 2015. Accepting that he would have been promoted to the rank of Sergeant by December 2015, the capital value of the future gratuity loss on a 1% actuarial rate of interest was given at €72,047 and at a 2.5% rate of interest at €59,154.
59. There was an issue between the parties in relation to overtime payment. Evidence was given on behalf of the Applicant by Mr. Walsh of Browne, Murphy & Hughes, chartered and certified accountants. He prepared a report dated the 23rd November, 2015, which was admitted. The amount allowable for future annual overtime by the Respondent was €1,888.86. The actual overtime earned by the Applicant in the two years prior to the assault was €8,682 and €11,942, respectively. For the purposes of the claim, Mr. Walsh gave evidence that the appropriate average annual overtime which ought reasonably to be allowed was €9,000 per annum. On his evidence this was reasonable not just by reference to the overtime actually earned by the Applicant in the two years prior to the date of the assault, but also by reference to actual overtime earnings in 2015 for a comparable Garda in Swinford of €15,448, and a comparable Garda in Castlebar of €10,569. If anything, the suggested average rate of €9,000 per annum was not only reasonable but conservative.
60. On my view of the evidence this contention was not seriously challenged. It was relied upon by Mr. Brendan Lynch in the preparation of his report and in his evidence. Noting that no allowance was made by the actuaries for Reddy v Bates contingencies and subject to what follows in this judgment, I accept, in so far as it goes, the actuarial and accountancy evidence of Mr. Lynch and Mr. Walsh.
Actuarial rate of interest.
61. It was submitted on behalf of the Applicant that the actuarial rate of interest, being the real rate of return appropriate to the Applicant’s claim in respect of his future loss of earnings and pecuniary benefits, should be 1%. As against that, the Respondents argued that the Court should apply a real rate of return of 3% in line with the decision in Boyne v. Dublin Bus [2006] IEHC 209 or, alternatively, 2.5% in line with the decision in McEneaney v. Monaghan County Council [2001] IEHC 114.
62. The question of the appropriate real rate of return in respect of the future costs of medical treatment, aids, appliances and future care recently fell for consideration by this Court in Gill Russell (a Minor) v. HSE [2014] IEHC 590 and subsequently by the Court of Appeal in the same case, [2015] IECA 236.
63. It was submitted on behalf of the Respondents that there was some confusion concerning the actual ratio decidendi in that case. However, albeit that his view was obiter, counsel for the Respondent drew the attention of the Court to the view of Cross J. at para. 2.47 of his judgment in relation to the appropriate multiplier to be applied in respect of a claim for future loss of earnings where he stated that “…were I to be deciding on an appropriate multiplier for a Plaintiff, such as in the Boyne case, who required investment of a sum for loss of earnings, and I am not so deciding, then it is very likely that a 3% real rate of return or the equivalent would be appropriate.”
64. Whilst observing that the view of Cross J. was obiter and, similarly, that the Court of Appeal did not decide the question in relation to a claim for future loss of earnings and pecuniary benefits, that Court itself expressed an opinion in relation to the obiter view of Cross J. on the appropriate multiplier at para. 89 in the following terms:
“89. For the purposes of clarity it is perhaps of importance for this court to state that we do not accept the albeit obiter view expressed by the High Court judge in the present case insofar as he indicated that a plaintiff with a claim for future pecuniary loss confined to loss of earnings might possibly be treated as less risk averse than a plaintiff who has a claim for the cost of future care. There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category. A plaintiff who will never be in a position to work again and is dependant upon the investment of his lump sum for their own support and that of his family may be entitled be treated similarly in terms of the investment risk he should have to absorb to the plaintiff who needs to cover the cost of their future nursing care on an annual basis.”
65. It is accepted by the Applicant that in Russell the Court of Appeal did not decide, in the circumstances of a Plaintiff who would never be in a position to work again and who was dependent on the investment of the lump sum for their own support and that of their family, that in relation to the appropriate multiplier, the Plaintiff should be treated in the same way as a Plaintiff who needed to cover the cost of future nursing care. It was submitted that, though obiter, the view that was expressed should nevertheless guide this Court in the determination of that question which falls for consideration in this case, especially as the permanence and seriousness of the Applicant’s injuries are such that he was unlikely to be ever able to return to the workforce in the future.
66. While contending that the decision of the Court of Appeal in Russell was not an authority for the proposition being advanced on behalf of the Applicant, the Respondent sought to cast the view of the Court in respect of the obiter dicta of Cross J. as being ‘one which did not necessarily commend itself to that Court’. The wording of the judgment of the Court is, however, more trenchantly and definitively expressed. The Court considered it important to state for the purposes of clarity that it did not accept the view of the learned trial judge, albeit obiter, in relation to the approach to be taken in relation to a claim for future loss of earnings.
67. In Wells v. Wells [1999] 1 AC 345 the principle question which fell for consideration by the House of Lords was the correct method of calculating lump sum damages for the loss of future earnings and the cost of future care. There were two cases heard by the Court at the same time and in respect of which the same question fell for consideration. In allowing the appeals it was held by the House of Lords that the purpose of an award of damages in tort was to make good to the injured Plaintiff, so far as money can do so, the loss that he had suffered as a result of the wrong done to him; that in awarding damages in the form of a lump sum the Court had to calculate as best it could the sum that would be adequate, by drawing down both capital and income, to apply periodical sums equal to the Plaintiff’s estimated loss over the period during which that loss was likely to continue; that the injured Plaintiff was not in the same position as an ordinary prudent investor and was entitled to the greater security and certainty achieved by investment in index-linked government securities, in respect of which the current net discount rate was 3%.
68. Insofar as that decision was persuasive authority for the proposition that, in determining the likely real rate of return which an injured Plaintiff might obtain on the investment of his lump sum in respect of his future care and treatment costs, he was not to be treated as an ordinary “prudent investor” but was, instead, entitled to have his lump sum award calculated on the basis that he was entitled to a lump sum that was sufficient to enable him to participate in as risk-free an investment as was available to meet the totality of his future losses over his remaining life expectancy, Wells was unanimously approved and followed by the Court of Appeal . At para. 84 of the judgment the Court stated:
“84. Quite correctly, in the view of this Court, Cross J. determined that the assessment of the real rate of return is to be made on the assumption that the plaintiff should be entitled to invest his award in as risk free an investment strategy as is available and which will likely meet his future care needs. In particular, we agree with his conclusion that the plaintiff is not to be treated as an ordinary prudent investor for the purposes of calculating the likely return on the investment of his lump sum. In adopting this approach, the High Court judge appropriately adopted the reasoning of the House of Lords in Wells , thus rejecting the approach earlier taken by the Court of Appeal in the same cases and which approach appears to have informed, to some extent, the decision of Finnegan P. in Boyne . The Court of Appeal in Wells and Finnegan P. in Boyne had concluded that in calculating the plaintiff’s lump sum award for future pecuniary loss the court was entitled to proceed on the presumption that the plaintiff would invest his award as an ordinary prudent investor.
85. Having considered the authorities on this issue and in particular the decision of the House of Lords in Wells , this Court is satisfied that it would be fundamentally flawed reasoning for a court to assume that the same investment policy would be prudent for all investors. The catastrophically injured plaintiff who needs to replace their lost income or to provide for their future care is simply not in the same position as the ordinary investor who has an income and has surplus funds to invest. The latter is clearly in a position to absorb greater risk. They are not dependant on such monies to meet their basic day to day requirements and indeed may not need to access these surplus funds for many years. Accordingly, they might prudently be in a position to invest in equities given their ability, should the market fall, to hold onto their investment and wait until the market recovers before selling. Even if they end up losing on their investment the outcome is not catastrophic. However, most injured plaintiffs enjoy no such comfort. Almost inevitably they are dependant upon their award of damages to meet their needs as they arise on a day to day basis. Accordingly, this Court is satisfied that the High Court judge was correct when he concluded that the plaintiff was entitled to have his damages calculated on the basis that he should be entitled to pursue the most risk averse investment reasonably available to meet his needs.”
69. Where the Court is required to calculate damages for future pecuniary loss, the law requires that the Plaintiff is to be provided with compensation on a 100% basis. Having done so, if there is an apportionment on liability, that apportionment will then be applied to the sum so calculated. Having concluded that the calculation by the Court of the discount rate was to be made on the basis of the assumed entitlement of a Plaintiff to invest the award in as risk-free an investment as was available and suitable to meet the Plaintiff’s future needs, the Court in Russell was satisfied that the trial judge was entitled on the evidence to conclude that the appropriate discount rate to be used for the purposes of calculating all of the Plaintiff’s outstanding claims for future pecuniary loss was 1.5%, and that the rate applicable to the Plaintiff’s claim for future care should be reduced by 0.5% to 1% to take account of the extent to which wage inflation was likely to exceed the CPI (consumer price index) over the course of the Plaintiff’s lifetime. In this regard the Court was also satisfied that the trial judge’s conclusion that the Plaintiff’s lump sum should be calculated by a reference to index-linked government stock (ILGS), was well founded.
70. It was stressed by the Court that the discount rate only applied to claims for future pecuniary loss and did not herald any change in the approach of the courts to compensate the Plaintiff for pain and suffering caused by the injury resulting from the wrong. In this regard the Court stated at p.161 of the judgment that:
“The alteration of the rate is, we believe, necessary to enable the Plaintiff meet his future needs without him having to take unnecessary risks with the fund provided to achieve that end. To expect and indeed oblige a Plaintiff, by the manner in which the Court approaches the calculation of their lump sum, to take such risks is, in the unanimous view of this court, both unjust and unacceptable.”
71. Counsel for the Respondent submitted that this Court should follow the decisions in Boyne and McEneany particularly as the determination of the real rate of return in Boyne was concerned with the Plaintiff’s claim for future loss of earnings. In McEneany O’Sullivan J. accepted that, in calculating the real rate of return, the Court should take into account that a Plaintiff was entitled to avoid what he described as “non-negligible risk”. Although he concluded that that would be achieved by a reference to a mixed portfolio including a substantial percentage of equities, it is clear that he did so against the backdrop of the non-availability of pan-European ILGS as well as the Plaintiff’s evidence as to how, in such circumstances, the real rate of the return might be calculated.
72. Rejecting the defendant’s criticism of the High Court judge for his failure to adopt the approach of Finnegan P. in Boyne, the Court of Appeal in Russell stated that whilst it was correct that in calculating the lump sum, the Court was entitled to assume that the Plaintiff would invest it prudently “…he was wrong to approach the selection of the multiplier on the basis that the plaintiff would likely adopt an investment strategy akin to that appropriate for an ordinary prudent investor rather than that which would be considered prudent for a plaintiff dependant upon their annuity to sustain their future welfare.”
73. Although Boyne was not authority for the proposition that a 3% real rate of return should be assumed in every case of future pecuniary loss, the Court of Appeal observed that the courts had adopted what was described as a “one size fits all” approach for the purposes of determining a multiplier to be used when calculating all classes of future pecuniary loss. It is clear that since the decision in Russell, the approach of the Court to the selection of the multiplier in the decisions of Boyne and of McEneany and the consequential application of a 3% or 2.5% actuarial rate of interest no longer pertains.
74. A question remains, however, as to whether a claim for future loss of earnings is subject to the same reasoning and approach by the Court as was applied to the determination of the real rate of return in relation to a claim for future medical care and treatment. That question did not fall to be determined in Russell. However, it was a significant aspect of the claim made by the Plaintiff in Wells. As to that Lord Hutton at P. 403 stated:
“Unlike the great majority of persons who invest their capital, it is vital for the plaintiff’s status that they receive constant and costly nursing care for the remainder of their lives and that they should be able to pay for it, and any fall in income or depreciation in the capital value of their investments will affect them much more severely than persons in better health who depend on their investments for support.
Moreover, a plaintiff who claims damages for loss of future earnings should, in my opinion, not be placed in the same position as a person who relies on capital for his future support. Such a plaintiff, but for the injuries which have taken away his earning capacity, would have been better protected against inflation by the rise in his wages in future years than the person who has to rely on a sound investment policy to protect him in the years ahead. In Livingstone v. Rawyards Coal Company, 5 App. Cas 25, 39, Lord Blackburn stated:
‘where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.’
I consider that an award assessed by reference to the index-linked return on ILGS will give protection against inflation closer to the protection which would have been given by the rise in the plaintiff’s wages, and will give better effect to the principle stated by Lord Blackburn, than will an award assessed by reference to the return on equities.”
75. The decision in Wells is not binding on this Court but is persuasive authority: it persuaded and was adopted by the Court of Appeal in relation to the questions which fell for consideration and determination by it and, in my view, it is also persuasive authority on the same question insofar as that relates to the calculation of the lump sum which should be awarded to the Applicant in relation to his claim for future loss of earnings and like pecuniary benefits. Accordingly, I adopt the foregoing extract from the judgment of Lord Hutton as a correct statement of the law in this regard.
76. The Court considers that this conclusion is further supported by the unanimous view of the Court of Appeal in Russell, though obiter, that it did not accept the view of the learned trial judge that different considerations in relation to the actuarial rate of interest would apply in relation to a claim for future loss of earnings than to a claim for future care.
Conclusion.
77. For all of these reasons, I cannot accept the submissions of the Respondent in relation to the appropriate actuarial interest rate to be applied in relation to the Applicant’s claim for future loss of earnings and other pecuniary benefits which have not been agreed. In all but one respect I accept the submissions made on behalf of the Applicant in this regard.
78. It was submitted on behalf of the Applicant that the appropriate real rate of return to be applied in relation to the calculation of the lump sum in respect of the Applicant’s claim for future loss of earnings and pecuniary benefits should be reduced from 1.5% to 1% because, in essence, the Applicant’s claim was one in respect of future loss of earnings and that, therefore, the discounted rate must be reduced further to take account of the increases that would otherwise accrue to the Applicant through wage inflation above the general rate of inflation.
79. The answer to that submission is to be found in the adopted extract from the judgment of Lord Hutton in Wells and in the judgment of the Court of Appeal in Russell. Although the Court held that the trial judge was entitled to adjust the real rate of return by 0.5% to take account of wage inflation in the care sector over a specified period, it went on to state that:
“156. The court notes that the trial judge, having concluded that a real rate of return based upon investment in a portfolio of ILGS should be set at 1.5%, reduced that rate to 1% to take account of future wage inflation, a factor only relevant to the computation of the cost of future care. However, from his judgment and order it appears that he then proceeded to use the 1% rate for the purpose of calculating certain categories of pecuniary loss of a non care nature. No submissions were addressed to this issue. Given that a rate of 1% was considered appropriate solely by reason of the potential impact of wage inflation, the use of 1% rather than 1.5% to calculate any category of pecuniary loss other than future care would appear inappropriate.”
80. It must be recalled that the head of claim in respect of which the 0.5% discount was made in Russell related to the wages of the carers who would be needed to look after the Plaintiff during his lifetime and not in respect of a claim for loss of earnings by the Plaintiff. Moreover, there was evidence that wage rates in the health sector were likely to outstrip general inflation. As Lord Hutton stated in Wells, the assessment of an award in respect of a claim for future loss of earnings by reference to the index-linked return on the ILGS would give protection against inflation closer to the protection which would have been given by the rise in the Plaintiff’s earnings.
81. Following these authorities, I cannot accept the Applicant’s submissions in regard to this issue; accordingly, the Court finds that the appropriate real rate of return to be applied in the assessment of the award to be made to the Applicant in respect of his claim for future loss of earnings and pecuniary benefits is 1.5%. It follows that the multipliers in respect of each €1 per week loss of earnings and other pecuniary benefits on a 1.5% actuarial rate of interest will need to be ascertained and applied in respect of that claim before the final order of the Court is made. I shall discuss with counsel how best to proceed with that aspect of the claim.
Reddy v. Bates contingencies.
82. It was submitted on behalf of the Respondent that although the Applicant was undoubtedly in secure employment as a member of the police force some deduction ought nevertheless be made by the Court in respect of life’s uncertainties and exigencies in order to modify the certainties employed by actuarial calculations based as they are on the assumption that events will progress to a particular date without any disruption or interruption.
83. Particularly during periods in an economic cycle where there are significant rises in unemployment, emigration and a reduction in incomes and associated pecuniary benefits otherwise enjoyed, it cannot be assumed that the ordinary uncertainties and exigencies of life will not apply to what are considered relatively secure and permanent employments such as those in the public service. The pay reductions across the public service and even redundancies during the recent recession give the lie to that proposition.
84. Indeed the serious consequences of the assault giving rise to these proceedings and resulting in the Applicant’s retirement from the police force is an example of but one of the events which can occur and which has in fact occurred in this case. It serves to illustrate the uncertainty attaching to an assumption that the Applicant would have served full time until retirement at age 60.
85. However, having regard to the relative security of employment in the public service when compared to the private sector and to the ordinary uncertainties and exigencies of life that go with the living of it, the Court considers that a fair and reasonable deduction to be applied to this head of claim for Reddy v Bates contingencies to age 60 is 20%.
86. As to the Applicant’s claim for future loss of earnings from age 60 to 68, I accept that, as a matter of probability, the Applicant would most likely have applied for and secured employment in one of the sectors identified by Ms. Smith and regularly obtained by retiring members of the force. While I accept the evidence that there are members of the force who retire and do not take up further employment I am also satisfied on the evidence that situation is more the exception than the rule. The Court also accepts the Applicant’s evidence and finds that it was his intention once he retired from the force at the age of 60 to seek out alternative employment.
87. However, with regard to this aspect of the Applicant’s claim there is, nevertheless, a significant element of speculation in relation to the type and terms of employment that he might have secured. Furthermore even if he secured such employment it seems to me that there would have to be a significantly larger deduction in respect of that claim to take account of Reddy v Bates contingencies given his age and the uncertainties associated with such employments in the private sector.
88. Accordingly, the Court considers that in the circumstances of this case the most reasonable approach to take in relation to this aspect of the Applicant’s claim is to award the Applicant an additional sum to compensate him for the loss of opportunity to pursue such employment in the future which the Court measures in the sum of €45,000.
89. This sum will be added to the sum of €400,000 general compensation already assessed by the Court together with the sum of € 300,000 agreed in respect of special pecuniary losses. In addition to these amounts will be added the sums to be calculated in respect of future loss of earnings and other pecuniary benefits to age 60 on the multiplier appropriate to an actuarial rate of interest of 1.5%, but subject to a deduction of 20% for Reddy v Bates contingencies. I will discuss with counsel the final form of the orders to be made.
Woods v Tyrell
[2016] IEHC 355, Cross J.
JUDGMENT of Mr. Justice Cross delivered on the 24th day of June, 2016
1. The plaintiff is a pleasant secondary school teacher who was born on 8th July, 1969 who was involved in a road traffic accident while jogging on the public highway with a friend on the Ballynacarragy to Mullingar Road.
2. The plaintiff set out jogging two abreast with a friend on the morning which started bright and crisp, it had been cold and frosty that January and she encountered pockets of fog. The plaintiff was on the inside and was facing oncoming traffic when a tractor and trailer being driven by a friend passed her going in the same direction on the far side of the road and then she saw the defendant’s van which almost immediately went onto the grass margin and the plaintiff felt her line of escape was cut off, did not know what to do but went on to the grass margin hoping that the van would go back on to the highway but unfortunately the van continued on the grass margin and the plaintiff was struck with the mirror of the van and suffered quite significant injuries.
Liability
3. The defendant accepts that some liability must attach to him but pleads that the accident was in the main caused, or contributed to, by reason of the negligence of the plaintiff in her jogging two abreast (though she was on the inside) on the highway on a foggy morning rather than being on the grass margin which the defendant alleges caused the defendant driver to react by going on to the margin to avoid another vehicle following the tractor and being driven by a Mr. Keegan. In this vehicle Mrs. Keegan was a passenger.
4. The engineer, Mr. Glynn of Denis Woods and Associates, gave evidence. He examined the locus on the 31st January, 2013 just over a week over the accident in which he could clearly see tire marks of the defendant’s van on the grass margin. The total width of the road was 6.7m, the carriageway being 3.1m on the plaintiff’s side with a margin of 0.2m. The carriageway was slightly wider on the other side, i.e. 3.2m with 0.02m hard margin.
5. Mr. Glynn gave uncontested evidence as to the duties of drivers and indeed of pedestrians and stated that the width of the defendant’s vehicle was 1.63m. Two persons running reasonably close together would take up approximately 1m.
6. The plaintiff stated that as she was running she saw the tractor pass her by and then she saw the defendant’s van. She gave a distance to Mr. Glynn that the vehicle would have been when she first saw it as about 50m or 60m away but when she gave evidence in court she estimated the distance at approximately the length of court number two, a considerable distance less.
7. The defendant’s counsel make the point that if she was 50m to 60m away that the van travelled some distance on its carriageway before it turned into the grass.
8. The plaintiff however states that when she first saw the van shortly afterwards it moved onto the grass cutting off her escape line.
9. The defendant himself did not give evidence but statements from Mr. and Mrs. Keegan who were travelling behind the tractor travelling in the same direction but on the other side of the road as the plaintiff were read into evidence by agreement in the absence of Mr. and Mrs. Keegan.
10. The Keegans essentially say that there was “dense fog”, that they were going slowly, that they were keeping a distance behind the tractor and trailer when Mrs. Keegan noticed the plaintiff and her friend, who was wearing a grey jacket, on the side of the road and “when they were level with the joggers I saw a blue van coming in the opposite direction”. Mr. Keegan does not think that the van was travelling fast. Mrs. Keegan before she saw the van remarked apparently that an accident was likely and the Keegans saw the accident in the driver’s door mirror.
11. I accept that the morning became somewhat foggy. I have photographs taken by the plaintiff’s friend at some time after the incident when the ambulance was still on the locus and you would describe the weather there not as dense fog but as misty or somewhat foggy.
12. The plaintiff has also been criticised for not having a high visibility jacket and while she did not have a high visibility jacket her clothing at the time was shown to me and there is no doubt that it was bright. In any event the defendant does not make the case that he did not see the plaintiff until late in the day. As indicated the defendant’s driver has not given evidence at all but I believe that the defendant and her friend were there to be seen.
13. The accident was clearly caused by the defendant’s driver miscalculating. Had he continued along the road even had the plaintiff not stepped into the grass margin, which I believe she would have done so, there was sufficient room for the defendant’s vehicle to pass by the plaintiff and her friend still jogging at the side of the road even if the other carriageway was taken up by the Keegans’ vehicle.
14. It does seem to me that from the Keegans’ evidence that the Keegans’ vehicle had clearly passed by the locus of the accident and the right hand carriageway was available to the defendant’s driver but in any event had it not been available the left hand carriageway would have been available even had the plaintiff continued jogging on the highway.
15. Unfortunately the defendant’s action in driving his vehicle onto the grass margin is indicative of either that he was not keeping a sufficient lookout until the last minute or that he was driving at an excessive speed or in any event that he entirely miscalculated the situation thinking that he should drive onto the grass margin thus clearly cutting the plaintiff off from her natural line of escape on to the grass margin.
16. I find that had the defendant continued on the roadway the plaintiff would have gone on to the grass margin and no accident would have occurred.
17. The weather conditions were not as foggy as the Keegans believed, it may be that they had just emerged from a pocket of denser fog. The fact that the Keegans did not see the plaintiff on the far side of the road until shortly before the impact is of course of no relevance as the Keegans had no business to be looking on to the right hand side of the road in the first place.
18. The plaintiff is, as has been admitted entitled to succeed against the defendant, I do not find any contributory negligence against the plaintiff, she was entitled to be on the public highway, there was not excessive traffic, a tractor and trailer passing by with another car behind it is not excessive traffic. As soon as the plaintiff saw the defendant’s motor vehicle coming against him, it moved onto the grass margin and accordingly, she is not to be faulted for being on the public highway and her natural line of escape onto the grass margin was denied by the actions of the defendant. Accordingly, the plaintiff is entitled to succeed against the defendant in full.
Damages
19. By sensible, if late agreement between the parties, special damages have been agreed in the sum of €14,000.
General Damages
20. It is trite law to say that the purpose of general damages is to place a plaintiff in the same position as he or she had been before the commission of the tort. In relation to general damages for pain and suffering, of course, this is an imprecise exercise. If a person has lost an eye in an accident caused by the negligence of the defendant, it is impossible to place that person in the position that they were prior to the accident.
21. An award of money is, of course, all that the courts can do, and is “notional or theoretical compensation to take the place of that which is not possible, namely actual compensation” – see Rushton v. National Coal Board [1953] 1 Q.B. 495 at 502.
22. A judge in a personal injury action must place himself or herself in the position of a jury and to provide reasonable compensation for the pain and suffering the plaintiff has endured and will likely to be endured in the future. The process of assessment must be rational, bearing in mind that the particular effect of an identical or nearly identical injury will vary considerably between different persons.
23. In M.N. v. S.M. [2005] 4 IR 461, Denham J. (as she then was) held that there were a number of relevant factors when considering the assessments of the level of general damages:-
(a) An award of damages must be proportionate;
(b) it must be fair to the plaintiff and to the defendant;
(c) it should be proportionate to social conditions, bearing in mind the common good; and
(d) it should also be proportionate with the legal scheme of awards made for other personal injuries.
24. As was eloquently made clear in the judgment of the Court of Appeal in Gill Russell v. HSE, there is no place in our jurisprudence for a public policy approach to damages.
25. Accordingly, while any award for compensation cannot restore to a plaintiff a lost eye or limb, or heal a chronic pain, an award of general damages will provide the basis by which a plaintiff can compensate himself or herself for what they have lost. Such award of general damages may finance vacations, which would otherwise not be affordable, a new kitchen or bathroom for the home or indeed a better home in the first place, or possibly may allow a plaintiff to indulge a passion for motor cars to provide for regular purchases. A plaintiff may use his general damages to give himself or herself the security of knowing that his family are provided for or that his children are given a third level education. The list is, of course, endless and shows that an injured plaintiff can utilise his compensation to provide himself degrees of happiness in other fields which would not otherwise be possible.
26. In assessing general damages, a judge must always remind himself or herself of the warning that would have been given to juries of old that they must fair to the plaintiff and fair to the defendant and must not allow emotions to take hold and, in effect, he must assess damages bearing in mind the principles outlined in the Supreme Court in M.N. v. S.M. (above).
27. In a number of recent decisions, the Court of Appeal has emphasised the entirely clear proposition that modest claims should get modest damages, moderate claims should get moderate damages, and serious injuries should get, in effect, serious damages.
28. This case is not, of course, a issue of catastrophic damages but in a number of recent decisions the Court of Appeal has referred to the “cap” on general damages and it has been suggested that the “cap” should, in some sense, be a yardstick for other cases involving less damages and accordingly, the position of the “cap” must be examined.
29. In the case of catastrophic injuries, an important development was the decision of the Supreme Court in Sinnott v. Quinnsworth [1984] ILRM 523, the plaintiff, in that case, was as a result of an accident quadriplegic and totally dependent for his care on others.
30. The plaintiff in that case was awarded £800,000, by a jury for general damages and appropriate damages for future care and future expenses.
31. In Sinnott, O’Higgins C.J. referred to the Supreme Court judgment in the case of Reddy v. Bates[1983] 1 I.R. 141 at 148:-
“…the fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded.”
32. Reddy v. Bates is, of course, also authority that in a case where damages are to be assessed under several headings, a court should consider the total sum of the award to ascertain whether it is in all the circumstances fair and reasonable.
33. In Sinnott, the Supreme Court fixed what has been referred to subsequently as a “cap” and general damages at £150,000. Over the time, this “cap”, as was anticipated by the Supreme Court in Sinnott has been altered.
34. The ratio of the cap was stated by O’Higgins C.J. in the following terms:-
“In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this (my emphasis added) regard must be held to the fact that every single penny of monetary loss or expense which the plaintiff has been put through in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to past and future and the cost of the special care which his dependence requires and will require for the rest of his life…”
35. It is clear, therefore that the cap only applies “in a case such as this” i.e. when a person who has been catastrophically injured has all his or her future needs and cares as well as his past expenses paid for. It is fair to say that as litigation has developed, plaintiffs who are catastrophically injured have under the headings of special damages today a considerably greater array of needs catered for than even was the case at the time of Sinnott. Specially adapted motor vehicles, special adapted motorised wheelchairs, cost of carers, cost of holiday with a number of carers, cost of adaptation or purchase of new accommodation etc. It follows that for a catastrophically injured plaintiff whose daily needs are going to be provided by special damages, the role of general damages to provide for the range of items I touched on above is not as extensive as in an ordinary case.
36. The most recent and indeed comprehensive review of the “cap” as considered in Sinnott v. Quinnsworth was set out by the decision of Quirke J. in Yun v. MIBI [2009] IEHC 318, which was referred to with by approval by MacMenamin J. in the Supreme Court in Carney v. McQuillan [2012] IESC 43.
37. Quirke J. set out the approach of the courts in the assessment of general damages in very serious or catastrophic cases as follows:-
“(i) Where the claimant has been awarded compensatory special damages to make provision for all necessary past and future care, medical treatment and loss of earnings, there will be a limit or ‘cap’ placed upon the level of general damages to be awarded.
(ii) When applying or reviewing the ‘cap’ on general damages the court should take into account the factors and principles identified by the Supreme Court in Sinnott v. Quinnsworth, and in M.N. v. S.M including ‘contemporary standards and money values’.
(iii) Where the award is solely or largely an award of general damages for the consequences of catastrophic injuries there will be no ‘cap’ placed upon the general damages awarded.
(iv) Each such case will depend upon its own facts so that: (a) an award for general damages could, if the evidence so warranted, make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of trial, (b) life expectancy may be a factor to be taken into account and, (c) a modest or no award for general damages may be made where general damages will have little or no compensatory consequence for the injured person.
(v) There must be proportionality between: (a) court awards of general damages made, (i) by judges sitting alone and, (ii) in civil jury trials and, (b) by statutory bodies established by the State to assess general damages for particular categories of personal injuries.”
38. Quirke J. increased the equivalent value in 2008 of the 1984 cap of £150,000, from €400,000 which it then was to €500,000 and then made a downward adjustment due to the reduction in wealth and living standards in the State which had commenced in 2008 in the economic crash and which would be expected to continue for a further period and reduced accordingly the practical limit to €450,000.
39. Accordingly, the “cap” placed on general damages is not €450,000 but €500,000, as Barton J. stated in Mullen v. Minister for Public Expenditure and Reform [2015 No. 1728 P.] (decision 5th May, 2016) that the figure should now, after the comprehensive review in 2008 by Quirke J. clearly be €500,000. I have in a number of other decisions indicated that figure should be capped today given the economic recovery.
40. Accordingly, the role of the “cap” in general damages must be considered in the light of the fact that the determination in Sinnott was made after express reliance was placed upon the earlier decision of the Supreme Court in Reddy v. Bates, that the plaintiff had by the special damages been already compensated to cover all her prospective losses and “cap” was expressly stated to apply in “a case such as this”. In which:-
“every single penny of monetary loss and expenses which the plaintiff has been put in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis.”
41. It has been pointed out by the learned authors in McMahon and Binchy that the injuries suffered by the plaintiff in Sinnott though clearly catastrophic were not the most serious possible to imagine. But, in these catastrophic or very serious cases in which they are substantial sums of special damages for past and future care and aids and appliances and in which the loss of earnings are covered, the possible uses to which general damages will be put by such a plaintiff are not the same as in a case of a plaintiff who has suffered similar injuries but for one reason or another was not entitled to significant special damages.
42. The learned authors in McMahon and Binchy (4th Ed.) Law of Torts, para. 44.237 to 44.239 are somewhat critical of an approach that takes into account in general damages the fact that special damages have been awarded. However, given the purpose of general damages of personal injuries as I outlined above and the practical effect that full provision of the special damages will have on a plaintiff, I believe a rational distinction can be made and the “cap” can be justified in the cases as provided for in Sinnott.
43. Irvine J. in Shannon v. O’Sullivan, in effect, agrees with this criticism and states:-
“It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.”
With respect to clear logic of that statement, it runs counter to the reasoning in Sinnott. I have in the previous paragraph given a possible rational basis for the approach of the Supreme Court both in Sinnott and Reddy v. Bates. But, be that as it may, the law in this country is settled now since Sinnott for the reasons as outlined therein, that the “cap” applies only in those catastrophic cases (in practice the vast majority of them) which have the extensive special damages as pertained in Sinnott. Apart from the clear logic of the learned authors and displayed by the judgment of the Court of Appeal, I believe it is clear that the law in this country has developed on this basis, that the “cap” is not the general damages to be awarded, for pain and suffering, to a catastrophically injured plaintiff unless in the circumstances as set out in Sinnott apply. This has been confirmed by subsequent jurisprudence.
44. Morris P. in Kealy v. Minister for Health (Unreported, High Court, 19th April, 1999) distinguished Sinnott on the basis, inter alia, that the Kealy case did not involve an award of very large sums for medical care, loss of earnings etc. and on the basis of Reddy v. Bates and indeed, Sinnott, that the court should have regard to the total sums when considering that the award was reasonable.
45. Similarly, Keane C.J. in Fitzgerald v. Treacy [2001] 4 I.R. 405, understood the Sinnott “cap” only applying in cases of catastrophic injuries where the plaintiff has received “very substantive damages to allow for nursing care, adaptation of a house the person was living in…etc.”
46. It is, I believe, from all the authorities that the “cap” and general damages is not the “price” in general damages intended to put the injured party into the position that he or she would have been had the tort not occurred but rather only occurs in those cases in which they are very substantial injuries with a high element of special damage which, in effect, takes care of all the general needs of a plaintiff.
47. Geoghegan J. in Gough v. Neary [2003] 3 IR 92 at 132, confirmed the view that the “cap” is not applicable if the special damages are low though the “cap” can be taken into account in a general way in assessing the appropriate general damages in a non-cap case.
48. I believe it follows from the above analysis and indeed, as I stated in Fagan v. Griffin [2012] IEHC 377 that Sinnott v. Quinnsworth should not be interpreted and cannot be interpreted as requiring that general damages in cases falling short of the most extreme should suffer any pro rata diminution in their damages. The “cap” on general damages be it £150,000 or €500,000 is not a yardstick against which other cases must be measured. It can, of course, be taken into account in a general way while assessing appropriate general damages in a “non-cap” case but no analysis of the authorities can regard the cap on general damages as being the “price” in general damages for catastrophic injuries. To regard €500,000 or whatever the figure may be as being fair and reasonable compensation for catastrophic injuries is an insult not just to the injured parties but to basic intelligence.
49. As Barton J. stated in Mullen (above) at para. 35:-
“…absent significant claims in respect of pecuniary losses into the future, such as claims for future medical treatment, care, accommodation, aids, appliances and loss of earnings, the Court is not constrained by the so called upper limit or ‘cap’ applicable to cases involving such claims; though this does not mean that the figure representing the upper limit or ‘cap’ cannot be taken into account in a general way when an assessment of appropriate general damages or compensation is being made in a non ‘cap’ case. See Gough v. Neary [2003] 3 IR 92 at 132.
In such a case an award of general damages or compensation may not only exceed but exceed substantially the ‘cap’ applicable to an award of general damages in a case where substantial future loss claims are made. See B. v C. [2011] IEHC 88, where Clarke J. awarded €700,000 in respect of injuries which, whilst very serious, were less than catastrophic and where the case did not involve a claim for substantial future medical treatment or care costs.”
50. From the above analysis it is clear in relation to the “cap” in general damages that the following principles may be established:-
(i) it applies only in cases where there is significant special damages;
(ii) in cases where they are not significant special damages the court is subject to rules set out in M.N. v. S.M. may award general damages significantly higher than the “cap”;
(iii) the “cap” since the decision of Quirke J. in Yun been fixed at €500,000 and the practice of €450,000 to which it was reduced in consequence of the economic collapse should no longer be applicable;
(iv) the figure of the “cap” is not and never could be held to be the “price” of catastrophic personal injuries; and
(v) a number of cases will arise in which there are significant special damages and the injuries though very serious are not as serious as the injuries sustained by Mr. Sinnott and those cases would be entitled to damages up to the figure represented by the “cap” is not a yardstick but a limit.
51. Accordingly, the “cap” is not and never could be a measure by which other cases should have their damages reduced.
52. However, the provision of the “cap” is one of the many features that may be taken into account “in a general way in assessing the appropriate general damages in a non-cap case”.
53. With this in mind, I consider the recent decisions of the Court of Appeal in Payne v. Nugent [2015] IECA 268, Nolan v. Wirenski [2016] IECA 56, and Shannon v. O’Sullivan (Unreported, 18th March, 2016).
54. The decision of Payne v. Nugent does not refer to any authorities other than the role of an appellant court as set out by McCarthy J. in Hayes v. O’Grady [1992] ILRM and in that case, the court was apparently not referred to any of the authorities I have discussed above and Irvine J. referred to the “upper range” as being around €400,000. It is unfortunate that the Court of Appeal was not advised of the comprehensive judgment of Quirke J. in 2008.
55. The Court of Appeal concluded that the award of general damages in that case was not reasonable or proportionate.
56. In Nolan v. Wirenski, the Court of Appeal did refer to the “cap” of €450,000 as being:-
“…the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury. In the exercise if its wardship jurisdiction the High Court regularly approves settlements for injuries of this type at this level of compensation.”
57. The court went on to state:-
“…I believe it is a useful to seek to establish where the plaintiff’s cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. Such an approach should not be considered mandatory and neither does it call for some mathematical calculation; what is called for is judgment, exercised reasonably in light of the case as a whole….”
58. In the case of Shannon v. O’Sullivan, the Court of Appeal restated the approach it adopted in Nolan and stated:-
“minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000.”
59. With respect, the above analysis with one caveat is entirely correct. The caveat is that if the Court of Appeal was suggesting that the general damages in the case of catastrophic injury are limited to €450,000 (or €500,000) that would be a misinterpretation with respect of the decisions of the Supreme Court in Sinnott and the other cases referred to above. The limit or “cap” only applies where there are significant special damages.
60. Accordingly, I am compelled to conclude that the reference in Shannon to “the region of €450,000” was not to suggest the “price” of catastrophic injury or the most serious injury is €450,000 or (€500,000) and the Court of Appeal in its determination was nearly setting out the very proper proposition that damages must be proportionate to the injuries.
61. I do not find that the remarks in the above cases by the Court of Appeal are to be taken, in any way, as to change the law clearly set out by the Supreme Court in Sinnott and the most that has been done, in my view, is to reiterate the proper principle as set out by Geoghegan J. in Gough v. Neary (above) and repeated by Barton J. In Mullen v. Minister for Public and Reform (above) that a court can take into account the “cap” in a “general way” in assessing the appropriate general damages in a “non-cap” case.
62. If there were to be a radical change in the law and the courts were to fix the amount of the “cap” as being the appropriate quantum for general damages of someone who has catastrophically injured and go on to assess the appropriate quantum of general damages in other cases measured by the price of the “cap” rather than the appropriate compensation for general damages in a catastrophic case then such a decision would run counter to the ratio of the Supreme Court in Sinnott and the subsequent decisions I have referred to above.
63. Furthermore, I believe such a radical departure in relation to general damages could only be interpreted as an exercise of public policy contrary to the express observations of Irvine J. in Russell (above) and in Shannon (above) and would require such alteration and departure from established authorities to be made expressly and without equivocation.
64. If established law is to be changed in such a manner it should be changed with “shouts of joy” and “trumpet blast”.
65. Adopting such considerations to this case and accepting entirely the observations of Irvine J. in Shannon (above) that:-
“…minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages…”.
I must approach this case on a proportional basis as outlined by Irvine J. above.
66. The plaintiff has sustained what is undoubtedly a significant injury, neither moderate nor very severe. I was furnished with medical reports on behalf of the plaintiff and on behalf of the defendant, neither party accepting necessarily the contents of the other parties’ reports. This tactic was adopted, as is frequently the case in personal injury litigation and from the good sense of the representatives of the parties. I have had a total of thirteen reports from a total of ten medical experts on behalf of the plaintiff and five reports from four experts on behalf of the defendant. It is clear that the defendant’s experts did not really contradict substantially what the plaintiff and her experts were saying and there was no suggestion that the plaintiff was, in any way, exaggerating her complaints and I found her to be pleasant and entirely truthful witness.
67. The plaintiff did suffer many and somewhat diffuse injuries to her right hand and wrist, right elbow, shoulder, an injury to her jaw with implications for her bite, trauma to her left neck and cervical spine, trauma to her sternum and left breast. She was also suffered psychological injuries, suffered from loss of balance or dizziness and dental pain.
68. The plaintiff was treated with a mixture of counselling and medications and courses in physiotherapy.
69. In relation to her symptoms, these as indicated were various including disorientation sickness, gagging on rotation of her head on the left side and feelings of being off balance and difficulty of holding her head and occasional tinnitus. A balance test indicated reduced balance function in both ears.
70. In relation to her jaw, she has been diagnosed with a chronic inflammation in her left tempormandibular joint and persistent low grade discomfort of her muscles of her face. Some progress was made in this regard. The defendant’s experts accept that the plaintiff’s imbalance was caused by the accident and the blow to the left side of her head likely to have caused concussion in her ear and the defendant’s Oral Surgeon, Mr Brady, accepts that her ongoing jaw and facial complaints are likely to be consistent with having sustained direct trauma to her jaw and he also relates continuing discomfort therein to the plaintiff’s significant anxiety problems which will be discussed below.
71. The plaintiff’s wrist was immobilised in a cast. Her wrist symptoms improved somewhat over time and her residual complaints in relation to any muscular or orthopaedic problems are centred on her neck and nausea and that she sometimes becomes unwell, she gags as if to vomit. The wrist and hand area was initially thought to have been fractured and then that was ruled out. However, the ultimate conclusion is that she had a flake fracture of her right wrist and the pain here, though it has improved, was significant at first.
72. In relation to her neck, Mr. O’Connor found a reduction of range of motion of cervical spine with a 50% reduction in lateral rotation to the left which results in the nausea and dizziness referred to and Mr. O’Connor is of the view that the plaintiff is unlikely to further improve.
73. The plaintiff’s Neurosurgeon, Mr. Nagari, states the plaintiff had a “very severe” musculoskeletal type of injury as a result of the impact which has alleged hyperextension/flexion type of injury leading to “significant soft tissue musculoskeletal pain”. The plaintiff has rejected the possibility of injections as Mr. Nagari felt there was only a 50% that these might be of assistance.
74. Of great concern to the plaintiff is that she developed syrinx. Mr. Nagari is of the view that there is a 40 – 50% chance that there is a direct relationship to the injury and is of the view that it is unlikely that this will cause her problems in the next few years but that there is a “20 – 30% chance that in the next ten years that it will expand”.
75. The plaintiff is very concerned about this but as the plaintiff’s doctors do not place the relationship of the syrinx to the accident being above 50%, I will have to out rule that as a symptom to be attributable to the accident.
76. I do find, however, that one of the most significant aspects of the plaintiff’s injuries was the psychological problems that she endured.
77. It is clear, as I note from the defendant’s Psychiatrist, Dr. Sinian, that the plaintiff would have been a “vulnerable person” in relation to these problems that she had untreated depression in her late teens after a large dose of steroids to cure her asthmatic condition. She also had a bout of depression in 2002/2003, after that up to the accident she was well. Dr. Sinian agrees that the plaintiff did suffer as a result of the shock of the accident and in particular, the fact that she felt that she was nearly killed in it, symptoms of “Post Traumatic Stress Disorder with anxiety being a prominent feature of it”.
78. Her own psychiatrist, Dr. Paul McQuaid, states that the plaintiff conforms to the criteria of:-
“(i) Chronic Post Traumatic Adjustment Disorder with associated anxiety and mood features. She is quite troubled and sad; and
(ii) Persistent Neurological Disorder.
79. I have observed the plaintiff giving evidence and on a number of occasions she was clearly distressed by recounting the accident and indeed, her injuries. In this she is supported by doctors on both sides.
80. Prior to the accident, the plaintiff was a very active lady who engaged in triathlons and used to engage in a number of 5km runs and numerous other demanding physical sports. However, since the accident the plaintiff has been unable to participate in her triathlons or 5km runs but she does walk most days some 8km into a local town and keeps herself fit. The plaintiff is a secondary school teacher. She was not working at the time of the accident and was endeavouring to get back into part time work. She is now and has been for a year or two working reasonable full time and there is no case for loss of earnings.
81. The plaintiff has travelled extensively both before and after the accident and some of her treatments were in India.
82. Accordingly, I assess the plaintiff as being someone who has suffered a significant injury with ongoing problems which has had an affect on her life and is likely to persist. However, the plaintiff has managed, despite her psychological difficulties to not have the injury dominate her life and whereas I think the plaintiff will continue to be vulnerable. One is hopeful that once the trauma of litigation is passed that there will be some easing of the psychological symptoms.
83. And whereas none of the individual symptoms have caused significant debilitation to the plaintiff, the combination of all the different symptoms as outlined in the medical reports of both the plaintiff and of the defendant as such that the plaintiff’s past injuries must be regarded as significant and it is likely that a number of them will persist indefinitely into the future.
Damages
84. Special damages which are essentially medication and medical expenses have been agreed in the sum of €14,000.
85. The general damages to date for pain and suffering to date, I assess at €80,000. the general damages into the future, I assess at €40,000.
86. The total of the said general and special damages amount to €134,000, which I believe in all the circumstances is fair and reasonable.
87. I have not found the PIAB Book of Quantum to be of any assistance to me in this case.
Shannon v O’Sullivan
[2016] IECA 93
JUDGMENT of Ms. Justice Irvine delivered on the 18th day of March 2016
1. This judgment is delivered in respect of the defendant’s appeal against two awards of damages made by the High Court (Donnelly J.) on 25th March 2015 at the Kilkenny High Court.
2. The learned High Court judge awarded Mrs. Rita Shannon a total award of damages of €131,463 comprising €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463. She awarded Mr. Anthony Shannon a total sum of €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.
3. The defendant maintains that each of the aforementioned awards were excessive to the point that they should be set aside.
Background
4. Mrs. Shannon was born in July 1960, is a married lady and a mother of two children. Mr. Shannon, was born in May 1957 and is a factory worker.
5. On 7th November 2012 Mr. and Mrs. Shannon were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs. Shannon was travelling as a front seat passenger in her husband’s vehicle when the defendant’s car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed.
6. In the High Court, the defendant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. They did so in reliance on the following assertions:
(i) That the plaintiffs had not proceeded directly to hospital, as they had initially claimed, but had gone there several hours after the collision.
(ii) That while Mr. O’Sullivan maintained he was examined in the hospital, no records existed concerning such examination.
(iii) That the plaintiffs had both sought medical attention for the first time on 1st December 2012, several weeks post-collision.
(iv) That the plaintiffs did not attend their long-established General Practitioner, but attended a retired General Practitioner, Dr. Sean McCarthy, who had been recommended to them by Mrs. Shannon’s brother.
(v) That the plaintiffs had no further medical review until they were seen by Dr. McCarthy for the second time in February 2014, at which stage they were both sent for an MRI examination and referred to a consultant psychiatrist.
(vi) That both plaintiffs had been referred to Prof. Michael Molloy, Consultant Rheumatologist, in May 2014 and were then both referred for EMG studies.
(vii) That both plaintiffs were later diagnosed with psychological injuries.
7. All of the aforementioned matters, and indeed several other issues of credibility, were canvassed with the plaintiffs and their doctors, i.e., Dr. Sean McCarthy and Prof. Molloy, Consultant Rheumatologist. In addition, the court had the benefit of hearing the evidence of the defendant’s own orthopaedic surgeon, Mr. Michael O’Riordan.
Trial Judge’s Assessment
8. Having considered all of the evidence, the trial judge delivered a lengthy and considered judgment in the course of which she dealt with the issues of credibility, causation and the extent of the plaintiffs’ injuries.
9. As to credibility, the High Court judge found the plaintiffs to be honest and extremely hard working people. Neither had missed a day’s work as a result of their injuries. She drew no adverse inferences from the facts that had been established by the defendants relating to the credibility issues to which I have already referred. The fact they had not attended a doctor for 14 months after their initial attendance she considered to be evidence of stoicism on their part, and the fact that they had made no claims in respect of loss of earnings she considered was evidence of honesty.
10. As to the cause of the stretching/bruising-type injury to a nerve in Mrs Shannon’s neck, the High Court judge accepted Prof. Molloy’s evidence that this injury, which was evidenced in EMG studies, was likely caused by the road traffic accident. She concluded that this injury had become chronic, would continue to affect the plaintiff into the future, and that there was some possibility she might require surgery. The trial judge also accepted Prof. Molloy’s evidence that the collision had rendered symptomatic Mrs. Shannon’s pre-existing but previously asymptomatic degenerative changes in her neck. In this regard she had received two injections from Dr. McCarthy.
11. As to the future, the trial judge concluded that as a result of the aforementioned injuries the plaintiffs’ pain had become chronic and would continue into the future. Further, she accepted Prof. Molloy’s evidence that there was some possibility of surgery in the future.
12. As to psychological/psychiatric injury, the trial judge did not accept that Mrs. Shannon’s symptoms had been as severe as she had maintained when she was seen by Dr. Neville, consultant psychiatrist. Had they been severe she would likely have mentioned them to her own General Practitioner, Dr. Walsh, whom she had attended with depression four months prior to her accident and later again in July 2012 in respect of another personal matter. Accordingly, the High Court judge rejected the diagnosis made by Dr. Neville that Mrs. Shannon had suffered Post Traumatic Stress Disorder. That said, she accepted that she had experienced flashbacks and nightmares and had had difficulty sleeping post accident. While these symptoms had abated, she continued to suffer symptoms of ongoing depression which required anti depressant medication. The plaintiff’s prognosis was guarded and her recovery from a psychological perspective depended upon the resolution of her physical symptoms.
13. As to Mr. Shannon’s physical injures, the trial judge accepted that he had also sustained a stretching-type injury to a nerve in his neck. She also concluded that, prior to the accident, he had asymptomatic degenerative changes in his neck which had been rendered symptomatic by the collision. As a result of these injuries, he had symptoms of stiffness and he also experienced tingling in his fingers following physical activity. The latter had eased off. He had received two injections from Dr. McCarthy but no other treatment was advised. At the date of the trial Mr. Shannon was taking over the counter painkillers, but only on an irregular basis.
14. As to the future pain and suffering likely to be experienced by Mr. Shannon arising from his physical injuries, the trial judge concluded that his symptoms had become chronic and were likely to continue into the foreseeable future.
15. As to Mr. Shannon’s psychological injuries, the trial judge accepted that he been shocked and frightened by the collision and that he had made such a complaint to Dr. McCarthy on his first attendance. He had not required any medical attention in respect of his stated anxiety until such time as he was referred to Dr. Morrison, consultant psychiatrist, by Dr. McCarthy in February 2014. The trial judge accepted Dr. Neville’s diagnosis that in the aftermath of the collision Mr. Shannon had developed Post Traumatic Stress Disorder. However, she concluded that his symptoms had been “mild” and less severe than those experienced by his wife. He had required no treatment i.e. no physiotherapy or cognitive behavioural therapy. She was satisfied that after his symptoms of Post Traumatic Stress Disorder had abated that he continued to have an adjustment reaction with mixed emotions of anxiety and mild depression but in respect of which he was not making any major complaints of continuing ill effects.
16. In conclusion, the trial judge found that Mr. Shannon, who was 57 years of age at the time, had developed a significant and permanent condition as a result of the road traffic accident and that in respect of which he would continue to be symptomatic into the future.
Submissions
17. Mr Finbar Fox S.C. on the defendant’s behalf makes a relatively straightforward submission in relation to both cases. He states that the sum awarded by the trial judge was excessive in each case both in respect of pain and suffering to date and pain and suffering into the future.
18. Insofar as Mrs. Shannon’s case was concerned, Mr. Fox drew the courts attention to the fact that as of the date of trial only two years and four months had elapsed since the date of the accident. During the first 15 months of that period, Mrs. Shannon had required practically no medical intervention or treatment. Between February 2014 and the date of trial, while there had been a greater medical presence in her life she had received practically no treatment of any type. Further, the evidence was that psychiatric symptoms had been at their worst in the first year. She had missed no time from her work and gave no evidence that her enjoyment of any other activities had been adversely affected. That being so the award of general damages to date of €50,000 was excessive.
19. Insofar as the award of €80,000 in respect of pain and suffering into the future was concerned, Mr. Fox relied upon the fact that it was not expected that the plaintiff would require any medical treatment. It was not suggested that her work or leisure activities would be impaired in any way. Beyond evidence that the plaintiff had good days and bad days in terms of pain in her neck or tingling in her forearm, and that there was a possibility of future surgery in respect of the stretched nerve in her neck, there was nothing in her medical condition or prognosis to support an award of that magnitude.
20. As for Mr. Shannon, breaking the claim down in the same fashion, Mr. Fox submitted that he too had required practically no medical or intervention over the 15-month period immediately following upon the collision. He had received no treatment of any type. He continued to work and made no complaint that his leisure activities had been interfered with. Between February 2014 and the date of trial, as in his wife’s case, there had been a greater medical presence but little by way of treatment. There was nothing he could not do and nothing had been taken from him in terms of his enjoyment of life. In such circumstances, the award of €35,000 in respect of pain and suffering to date was excessive.
21. As to the award of €50,000 in respect of pain and suffering into the future, Mr. Fox submitted that there was no evidence from any medical practitioner, or indeed the plaintiff himself, such as would justify an award of that nature. There was no suggestion he would require any treatment or medication into the future. Further, he would not be restricted in any of his activities.
22. Mr. Fox submitted that the severity of the injuries sustained by both plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or had deprived them of their ability to participate in activities which they would otherwise have enjoyed. Measured in this way, the awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.
23. Mr. Aidan Doyle S.C. on the plaintiffs’ behalf submitted that the awards that had been made by the learned High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.
24. As to Mrs. Shannon’s injuries, counsel submitted that there was objective evidence of disc encroachment on a nerve causing ongoing pain and that her symptoms had become chronic to the point that it was probable she would be symptomatic indefinitely. She had sustained nerve damage for which she had required two injections into her neck and she remained at risk of surgery in this regard. Her pre-existing degenerative changes in her neck had also become symptomatic. In addition, Mrs. Shannon had sustained a psychiatric injury and in the initial aftermath of the collision had experienced symptoms of flashbacks, nightmares and sleep disturbance. While she was significantly improved as of the date of trial, she nonetheless continued to experience symptoms of depression in respect of which she was still taking medication and in circumstances where her prognosis was guarded.
25. Mr. Doyle submitted that Mrs. Shannon’s injuries should not be equated with the straightforward whiplash-type injury often seen in the courtroom setting. The fact that she had not received significant treatment nor required time off from her job, should not be relied upon as evidence that her injuries were not severe, particularly given that the trial judge had taken the view that these factors were indicative of stoicism on her part.
26. Mr. Doyle submitted that an assessment of damages should not be carried out by reference to some imaginary scale of quantum, where, at the bottom of such scale, minor injuries were to be found which attracted very small damages and at the top, catastrophic injuries in respect of which general damages of in or around the €450,000 figure was the appropriate compensation. He submitted that awards at the highest end of the scale were, in reality, capped by reason of the fact that those plaintiffs were recovering substantial sums of money in respect of special damages. Thus, it would be unfair to assess the plaintiff’s entitlement to damages by reference to where, on such a scale the plaintiffs injuries were to be located.
The Principles to be Applied
27. It is accepted by the parties that, as per the judgment of McCarthy J. in Hay V. O’Grady [1992] 1 I.R. 210, as this Court did not see and hear the witnesses give their evidence, it is bound by the findings of fact made by the learned High Court judge insofar as the same are supported by credible evidence. In this case, there is no suggestion that the findings of the trial judge were not so supported.
28. In these circumstances, this court may only overturn the awards of damages made if it is satisfied that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.
29. The task of a judge sitting in an appellate court when asked to interfere with an award of damages made in the High Court was described in the following manner by Lavery J. in Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92 :-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case were personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
30. The same issue was considered by Fennelly J. in Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578, where he described the role of the appellate court in the following manner:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, ‘would be inclined to give’ (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question ‘whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable’. The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against ‘relatively petty paring from or adding to awards’. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, and of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
31. It is clear from the aforementioned authorities that an appellate court should not interfere with the award of a trial judge if it is only for the purpose of making some moderate adjustment. This is because the appellate court has not heard or seen the witnesses give their evidence and must accordingly be cautious about second guessing the trial judge’s assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not proportionate to the injuries sustained and where it considers the award made constitutes an erroneous estimate of the damages properly payable.
The Quantification of Damages
32. It has long been accepted that awards of damages must be:-
(i) fair to the plaintiff and the defendant,
(ii) proportionate to social conditions, bearing in mind the common good
and
(iii) proportionate within the scheme of awards made for other personal injuries (see MacMenamin J. in Kearney v. McQuillan & North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
33. However, even where awards are made in accordance with these principles, the goal of damages, which is to put the plaintiff back in the position that he or she was in before they sustained their injuries, is, in most cases, unattainable. This is particularly so in the case of serious injury.
34. As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
35. Insofar as Mr. Doyle has submitted that the plaintiffs claim should not be measured on a scale of damages which starts at zero and ends at €450,000, on the basis that €450,000 is not in fact the top of the scale because damages are capped at that level for those who suffer catastrophic injury and receive very significant awards by way of special damage, I reject that proposition.
36. It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
37. It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
38. It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.
39. The plaintiff in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“.. probably the most serious condition that a person can suffer as a result of personal injuries.”
The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
40. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, costs and expenses, past and future, which it was the purposes of special damages to cover in full and the award of compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his damages reduced because he has received due recompense for his out of pocket expenses and future needs.
41. Accordingly, coming back to the facts of the present case, I remain of the view that it is reasonable to view the plaintiff’s injuries in the context of the entire spectrum of personal injury claims where, at the outer end, a plaintiff might expect to recover damages somewhere in the region of €450,000. I accept that there may be individual cases in which, having regard to their own specific facts, a judge might rightly decide to exceed that sum.
42. As to where on the spectrum of awards Mr. and Mrs. Shannon’s injuries should be located depends upon extent to which, as a result of the defendant’s wrongdoing, they have suffered and will continue to experience, inter alia, pain, suffering and loss of enjoyment of life. While it is important to understand the nature of their injuries and the relevant medical diagnoses, far more important is the evidence concerning the extent to which those injuries have already and may in the future adversely affect their lives. The value of an injury cannot be determined by the label attached to it. For example, for a judge to state that they were satisfied that a plaintiff suffered from let us say an adjustment disorder or a stretching injury to a nerve would of course be helpful and relevant to the court’s understanding of their condition. However, such a finding needs to be followed up with the trial judge’s assessment as to the consequences for the plaintiff of such an injury. An appellate court needs to know the trial judge’s assessment as to the severity of the symptoms generated by the condition, the treatment undertaken or to be undertaken in respect thereof and the extent to which the symptoms and/or treatment have or will interfere with the plaintiff’s enjoyment of life and for what period.
43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the plain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.
45. It is not possible to catalogue all of the elements to be considered and potentially addressed by a trial judge in a personal injuries case. However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
Decision
46. I find myself in the unenviable position of having to take issue with the conclusions of the learned High Court judge who clearly gave great care and consideration to each of these claims before delivering a lengthy and thoughtful judgment. I fear that she became caught up in the difficult task of deciding the credibility issues raised for her consideration, with the result that she did not provide a sufficient analysis of her reasons for making such large awards in favour of these plaintiffs.
47. Undoubtedly, the trial judge considered the plaintiffs’ injuries to be “significant”, because this is what she said in her judgment, and she then proceeded to assess damages, in the case of both plaintiffs, on that basis. However, her reasons for reaching such a conclusion are not obvious. While the trial judge described in medical terms the nature of the physical and psychological injuries sustained by the plaintiffs and went on to identify how these injuries were borne out by EMG and MRI studies, her analysis of the effect of such injuries on the plaintiffs is not sufficiently detailed to support awards of the magnitude which she made. It is vital that judges in personal injuries cases set out their conclusions as to the consequences for the plaintiff of the injuries sustained in terms of pain, suffering and loss of enjoyment of life, both past and future. Without that reasoning an appeal court is somewhat left in the dark as to the rationale behind the award.
48. The trial judge concluded that both plaintiffs had suffered an injury to a nerve in their neck, causing cervical radiculopathy. She also concluded that it was possible that Mrs. Shannon might require surgery in respect of this injury at some future date. She was also satisfied that both plaintiffs had suffered soft tissue injuries to their neck and shoulders and that in relation to the former, that asymptomatic pre-existing degenerative changes had been rendered symptomatic by the collision. She concluded that these injuries had and would have a significant effect on their lives.
49. In this case, it is difficult to see much evidence of pain, suffering, treatment or limitation on life style such as would support an award of general damages to Mrs. Shannon in the sum of €50,000 and in the case of Mr. Shannon of €35,000 in respect of the two-year and four-month period between the date of the accident and the date of trial. I will deal with the conclusions of the trial judge in respect of the plaintiffs’ physical injuries before turning to her findings in respect of their psychological injuries.
50. The trial judge accepted that they were both assessed in hospital on the evening of the accident. However, they were not detained and did not require any medical intervention or treatment. Whatever symptoms they may have had did not preclude them from going to work the next day and living what appeared appears to have been a relatively normal life until such time as they both went to Dr. McCarthy on 1st December 2012. On that date, both plaintiffs were prescribed painkilling medication, i.e., Tylex for one month.
51. It is undoubtedly the case that the trial judge found that the plaintiffs were both suffering from pain in the neck and shoulder at this stage. However, it is to be noted that Dr. McCarthy did not consider their injuries sufficiently serious to refer them for further expert advice or investigation. Neither did he consider their complaints sufficiently serious to advise them that they should come back for review after any stated period. It is common case that neither of them returned to seek any further advice, treatment or medication until February 2014, some 13 months later.
52. The trial judge clearly addressed the implications of the plaintiffs’ lack of engagement with the medical process over that period and concluded that this was because they were stoical, and that may well be so. However, the fact that they did not return seeking further medication, treatment or advice has to be somewhat indicative of the level of pain and suffering that they were experiencing.
53. Because the court usually has only the plaintiff’s evidence as to the extent of their pain, is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment. In that regard, it is common case that most people who sustain injury and have consequential pain seek medical intervention and, if necessary, treatment. The needs of the injured party are usually at their greatest in the days, weeks and months following injury when engagement with the medical and allied professions is likely be at its most intense. Further, it is usually during these periods that plaintiffs who suffer minor or modest injuries are most affected in terms of their ability to work and/or participate in sports, hobbies or pastimes. It must be inferred from the fact that the plaintiffs were both in a position to continue to work, were able to participate in their normal day-to-day activities and did not feel the need to attend a doctor between December 2012 and February 2014 that their symptoms over this period were relatively modest.
54. As to the period between February 2014 and the date of trial, it is true to say that Mr. and Mrs. Shannon were referred for MRI and EMG studies and were also referred for specialist review by Dr. Morrison and Prof. Molloy. While these referrals led to a number of diagnoses being made, such as a stretching or bruising of a nerve and Post-Traumatic Stress Disorder, the lives of the plaintiffs continued on, much the same as they had done over the earlier 13-month period, the only difference being that they each received two injections from Dr. McCarty in respect of their respective nerve injury. Both continued with their work, neither of the missing a day. Neither did they have to abstain from any of their normal activities. Mr. Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Mrs. Shannon confirmed that she was able to mind her grandchildren and go to the gym.
55. Of some further assistance in terms of determining the extent of the impact of the injuries sustained on the plaintiffs’ lives must be the fact that at no time did either of them, as an individual, attend a medical practitioner to seek help, treatment or medication in respect of their symptoms. On each occasion they attended Dr. McCarthy, which was only three times in total, they went together. On the only occasion they attended Prof. Molloy, they went together. Likewise, they attended together with Dr. Morrison and later with Dr. Neville, she having been retained due to Dr. Morrison’s unavailability. So while the plaintiff’s may have been symptomatic, neither of them ever had any acute episode or a period of individual pain which required them to seek advice, treatment or medication.
56. Insofar as the plaintiffs’ psychological injuries are concerned, I have detailed these earlier at para 12 and 15 of this judgment, so I will not repeat them here. Suffice to state that I find it difficult, from the judgment of the trial judge, to assess the extent to which she likely relied upon the plaintiffs’ psychological injuries when she came to assess the amount of damages to be awarded in respect of pain and suffering to date. While she made findings of fact concerning the psychiatric injuries sustained by both plaintiffs and charted their recovery, she did not state her conclusions as to the severity and frequency of their symptoms such as flash backs and nightmares, nor her conclusions as to the extent to which and over what period these affected the plaintiffs in their enjoyment of everyday life.
57. What is clear, however, is that regardless of the existence of symptoms such as those last mentioned, the severity of the plaintiffs’ symptoms was not such that they felt it necessary to seek any professional assistance. It was only following their attendance upon Prof Molloy in 2014 that they were ultimately referred for psychological review.
58. Insofar as pain and suffering into the future is concerned, while the trial judge clearly took the view, in Mrs. Shannon’s case, that she would continue to suffer some tingling in her arm and pain and discomfort in her neck because her condition had become chronic, regrettably, she does not detail the symptoms or limitation on lifestyle that explain an award of the magnitude of €80,000. She did not, for example, identify what she believed Mrs. Shannon would likely experience in terms of pain arising from the chronicity of her symptoms, and without such analysis an appellate court is in a position of some difficulty when asked to review a trial judge’s award of general damages. It needs to know the trial judge’s conclusions as to the likely frequency, severity and duration of any adverse sequelae. Obviously, a plaintiff who is expected to suffer modest pain which can be relieved by over-the-counter medication for a couple of hours a week will attract an entirely different award of damages to the plaintiff who is expected to experience lifelong pain on of the type that cannot be controlled by medication. Further, an appellate court needs to know the conclusions of the trial judge as to the likely effect that any anticipated pain will have on a plaintiff’s lifestyle, hobbies and work.
59. However, this fact notwithstanding, I think it can reasonably be inferred from:-
(i) her lack of any apparent need for prescribed medication, other than Tylex for a month post accident,
(ii) the fact that her only medical treatment consisted of two injections given by Dr McCarthy in 2014,
and
(iii) the fact that she required no rehabilitative intervention of any sort and (iv) that she had not been disrupted in her working, leisure or sporting activities, that Mrs Shannon was unlikely to experience anything significant in terms of pain or discomfort or limitation in lifetime activities post the date of trial.
60. Insofar, as a trial judge may conclude, as occurred in the present case, that a plaintiff remains at risk of surgery, an appellate court needs to know whether the judge considered that risk to be minimal or substantial. It also needs to know what such surgery would entail in terms of pain and suffering, the relevant recuperation period and the likely prognosis. If the risk of a surgical procedure is 50% as opposed to 5% this will obviously sound in damages. Likewise, the extent of any such surgical intervention and the plaintiff’s likely prognosis are all material to the damages to which the plaintiff is entitled.
61. In this case, however, all we know from the judgment of the trial judge is that she factored into her consideration, when awarding damages for pain and suffering into the future, the fact that the plaintiff remained at risk of surgery in respect of the bruising injury to the nerve in her arm. The extent of that risk is not mentioned nor any detail given as to what the surgery, if it were required, would involve. The fact that she did not do so, to my mind, was because none of these issues were canvassed in any detail with Prof. Molloy, who was the witness who had advised as to the possibility of such surgery. Absent that detail, I am not satisfied that there was sufficient evidence to entitle the trial judge to make an award which included compensation for the possibility that she might require future surgery.
62. A similar problem arises in respect of the trial judge’s conclusion that the plaintiff had developed a depressive illness which required antidepressant medication and in respect of which the prognosis was guarded. The trial judge did not identify the extent to which she expected such condition to impact upon the plaintiff’s life nor whether her symptoms were fully or partially controlled by medication. What is clear, however, is that up to the date of trial, there was little evidence to suggest that the plaintiff’s psychological symptoms had not adversely affected her from a vocational or social perspective. Thus, it might reasonably be inferred, notwithstanding the absence of any specific guidance from the trial judge, that Mrs. Shannon was unlikely to suffer much by way of psychological problems deriving from her road traffic accident into the future.
63. When it came to her assessment of Mr. Shannon’s injuries, the trial judge concluded that his injuries were less severe than those sustained by his wife but that he was likely to remain symptomatic indefinitely because of the accident. Unfortunately, however, she does not state her conclusions as to the frequency or severity his pain or emotional upset and she appears to have placed little reliance upon the fact that he was not limited in his work or leisure activities as a result of his injuries.
64. It is true to say, as already advised, that the trial judge concluded that the reason why Mr Shannon did not stay out of work was because he was stoical, and this court must accept that finding. However, it must be inferred from the fact that he was in a position to remain at work and never missed a single day that his pain, whatever its frequency, was manageable to the point that his life remained much as it was prior to the collision. His sole expressed limitation was casting a line when fishing and with the exception of two injections administered by Dr McCarty, he received no treatment of any nature.
65. Insofar as the trial judge’s award for damages for pain and suffering into the future is concerned, she clearly based her award on her conclusion that the degenerative changes in Mr Shannon’s neck would likely continue. However, as in the case of Mrs Shannon, the she did not identify the nature and extent of any pain, suffering lifestyle limitation that he would likely experience as a result. I have already expressed my view that a trial judge must support any such award by reference to their conclusions on such matters. Without that detail it is difficult for an appellate court to assess whether an award of general damages was reasonable, just and proportionate having regard to the injuries . These difficulties notwithstanding, in my view, the was nothing in the evidence to suggest that Mr Shannon would experience much by way of pain or discomfort into the future. His symptoms prior to trial had not impacted on his ability to fully engage with all aspects of daily living, and there was no evidence to suggest that his condition would deteriorate.
Conclusion
66. Regardless of the deference which an appellate court must afford to the judgment of the trial judge, for the reasons already stated I am satisfied that the awards of general damages in favour of these plaintiffs were not just and fair or proportionate to the injuries they received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.
67. I’m quite satisfied that had the trial judge assessed the significance of the plaintiffs’ injuries by reference to the severity of other injuries which fall within the entire spectrum of personal injuries claims and the awards commonly made in respect of thereof and, had she had regard to factors such as those earlier identified at paragraph 42 of this judgement, she would likely have made a significantly lesser award in each case.
68. As to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, I am quite satisfied that their claims must fall towards the bottom end of the scale which has minor injuries at one extremity and catastrophic injury at the other. In this context their injuries must be viewed as modest indeed. I accept, of course, the trial judge’s finding that Mrs Shannon’s injuries were slightly more severe than those of her husband. However, in order for their awards to be fair and proportionate, they too must be modest. That being so, in Mr Shannon’s case I would set aside the award of the trial judge in respect of general damages and would propose in its place an award of €25,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future. In Mrs Shannon’s case I would likewise set aside the award of the trial judge in respect of general damages and propose an award of €40,000 be made in respect of pain and suffering to date and €25,000 in respect of pain and suffering into the future.
udgment of the Court (ex tempore) delivered on the 10th day of November 2015 by Ms. Justice Irvine]
1. This is an appeal against the decision and judgment of High Court (Cross J.) dated 15th January 2015. The proceedings before him on that date concerned a personal injuries claim brought by the plaintiff in respect of a road traffic accident which occurred on 19th December 2012 at Sundrive Road, Dublin. On that occasion the plaintiff was travelling as a back seat passenger in the car which was rear ended by the defendant’s motor vehicle.
2. The trial judge having heard the evidence over two days assessed general damages for pain and suffering to date in the sum of €45,000, pain and suffering into the future in the sum of €20,000 and he then awarded agreed special damages of €2,985. It is against that award that the defendant appeals. The appeal made before the court today is a little different from that which was set out in the notice of appeal.
3. To summarise, Mr. Declan Doyle S.C on behalf of the defendant makes the fairly straightforward argument that the general damages awarded both in respect of pain and suffering to date and into the future were simply excessive and were not within the permissible range having regard to the evidence. In support of that submission he has drawn the court’s attention to a number of factors.
(i) The plaintiff’s medical condition was entirely managed by her general practitioner, Dr. Donoghue and her treatment, from an active perspective, had ended in March 2004 -fifteen months post accident.
(ii) Between March 2004 and the date of the trial the plaintiff did not receive any treatment for her back injury.
(iii) He refers to the fact that while the plaintiff also sustained a neck and shoulder injury this was one which, having regard to the evidence, had cleared within a period of seven months.
(iv) Insofar as the trial judge compensated the plaintiff for a psychological injury, the only evidence available to the court apart from that of the plaintiff, was that contained in the report of Dr. Cumiskey, consultant psychiatrist, who was retained by the plaintiff’s solicitor not to treat the plaintiff but merely to advise on her condition.
(v) Insofar as there was any ongoing symptomology at the date of trial, and he does not dispute that the plaintiff was still then symptomatic, he submits that taking all of the medical reports into account the plaintiff injuries were relatively minor given that she was not receiving any ongoing treatment
(vi) He concluded his submission by asserting that notwithstanding the plaintiff’s own evidence and taking into account all of her expert reports, the award made was well outside that which would be acceptable for a soft tissue injury.
4. In response to these submissions, Mr. Finbar Fox S.C on behalf of the plaintiff makes the following arguments. He states that the trial judge listened to the evidence given by the plaintiff and accepted her evidence that she had an ongoing chronic back complaint up to the date of the trial and that this had interfered with her quality of life. He referred the court to the fact that the transcript shows that her evidence in this regard was not seriously challenged.
5. In response to the emphasis that Mr. Doyle had placed on the fact that the plaintiff had not been referred to any medical experts for treatment and that all of the expert reports had been obtained by her solicitor, Mr. Fox submits that even though these were obtained by the plaintiff’s solicitor’s they were requisitioned to better explain to the court the extent of her injuries. In these circumstances the court was obliged to consider the content of the reports and to ignore their provenance. The reports were there to guide the court and it would be wrong for the court to dilute the diagnoses and conclusions contained therein just because they were from experts to whom the plaintiff had been referred by her general practitioner.
6. Mr. Fox submits that that the injuries sustained by the plaintiff were significant and that the award made by the trial judge for pain and suffering to date was well within the appropriate range. Likewise he maintains that the award for pain and suffering into the future was appropriate. Further, the later was proportionate to the award made for damages for pain and suffering to date and reflected the conclusions of the trial judge that the plaintiff was still symptomatic and would likely be symptomatic into the future.
7. The first matter to be considered is the role and jurisdiction of this court when engaged upon an appeal of this nature. As the parties are well aware, the oft quoted judgment of McCarthy J. in Hay .v. O’Grady [1992] ILRM sets out the principles which guide the court when exercising its appellate jurisdiction. I will just briefly refer to a number of the paragraphs from his judgment. He advised and cautioned as follows:-
1. Firstly, that an appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but also observes the manner in which it is given and the demeanour of those giving it. The arid pages of transcripts seldom reflect the atmosphere of the trail.
2. Secondly, if the findings of fact made by the trial judge are supported by credible evidence this court is bound by those findings however voluminous and apparently weighty the testimony against them may be given that truth is not, he advised, a monopoly of any majority.
3. Thirdly, insofar as inferences of fact are drawn by a judge at first instance, it is open to an appellate court to substitute its own inferences. However, he cautioned against such an approach where those inferences were drawn from the judge’s assessment of the oral evidence.
8. It is important in the context of the role of the appellate court on this appeal to mention one particularly important factor namely that the evidence before the trial judge, with the exception of the plaintiff’s own evidence, was all to be found in the medical reports which were produced by the parties and were given to the trial judge to be taken into account in coming to his conclusions.
9. To this extent, this court is in just as good a position as the trial judge to assess the weight to be attached to the evidence contained in those reports although remaining conscious of the fact, that while it has the transcript of the plantiff’s evidence, it it not have the benefit of hearing that evidence.
Judgment of Cross J.
10. I will refer to what are perhaps some of the more salient findings of the trial judge because, in assessing whether or not his award was within or outside the acceptable range, the court clearly is bound by his findings in so far as they are supported by the evidence.
11. I can summarise these in the following manner:-
(i) He said that there was very little conflict in the evidence.
(ii) He found the plaintiff to be a truthful witness who did not exaggerate.
(iii) He accepted that she was dazed as a result of the accident and that soon after she developed shoulder, neck and back pain.
(iv) He concluded that her shoulder rapidly cleared and that her neck throughout 2013, whilst troublesome, had, in effect, cleared before the trial even though he accepted her evidence she said that at times it had “its moments”.
(v) As to the plaintiff’s back, this had troubled her during 2013 and has caused her some sleep deprivation. He accepted the evidence in Dr. Thakore’s report that her back was fifty per cent better in 2014. However, that leaves open to this court a need to assess how severe the trial judge considered the plaintiff’s back problem was at the outset. That is a matter which is clearly relevant to any appraisal of the award made by the trial judge. Some guidance as to the severity of the plaintiff’s back problem from inception is to be found in the expert reports which this court has seen. From these it is clear that the plaintiff’s general practitioner initially prescribed some pain killers and anti inflammatories. Her own evidence was that she also used heat pads on her back in the initial phase and that she attended for two or three sessions of physiotherapy after which she carried out a home exercise programme. The only other medication she was prescribed was a trial of Lyrica which she took for a week in 2013 and for four weeks in 2014.
(vi) It should however be notes that the plaintiff was due to have an epidural injection in January 2014 but that was cancelled. Mr. McQuillan in his report said that it was to be re-scheduled shortly but it had not happened twelve months later.
12. Relevant to the assessment of the severity of the plaintiff’s back problem is, I believe, the fact that while she attended her general practitioner on a number of occasions during the first fifteen months up to 7th March 2014, there was no attendance thereafter. Every subsequent appointment was solely for the purpose of medical legal review. There was no medical intervention of any nature post March 2014 i.e fifteen months post accident.
13. It is clear from the judgment of the trial judge that apart from finding that the plaintiff had an ongoing back problem, the severity of which I have just discussed, he also accepted that she had developed an adjustment disorder and had suffered from low mood. Dr. Cumiskey, in her medical report advised that she first saw the plaintiff sixteen months after her accident and had diagnosed her as having developed a type of adjustment disorder of a moderate nature.
14. Based upon the combination of the physical and psychological injuries to which he referred, the trial judge went on to conclude that the plaintiff’s injuries, whilst significant, were not as severe as those suffered by many involved in accidents of a similar type. From that statement it is to be inferred that the judge, in terms of his assessment of the severity of the plaintiff’s injuries, was satisfied that they were certainly not in the upper range of injuries of a soft tissue nature with some psychological component.
15. Mr. Fox is correct however that it is not for the court to trim or tamper with the damages awarded by a judge at first instance unless it is satisfied that the award was significantly outside that which it might consider to be appropriate.
Decision.
16. Needless to say it is regrettable that people get injured due to the negligence of others given that an award of damages for pain and suffering cannot restore the victim to the physical or mental status they enjoyed prior to the infliction of their injuries. In this context it is important that compensation, when awarded by the court, in respect of pain and suffering should be reasonable and proportionate in all of the circumstances.
17. I am mindful of the fact that while it cannot be stated that there is a cap on general damages for pain and suffering, from the awards made in recent times there is at least a perception that the very upper range for compensation of this type rests in or around the €400,000 mark. The most catastrophically injured members of society who suffer great pain and distress and who may never work or enjoy the benefits of a loving relationship and who may remain dependant on the care of others for fifty or sixty years or indeed for the whole of their lifetime are regularly awarded general damages for pain and sufering in the region of €400,000. So one of the questions I ask myself when considering whether the award made in this case was reasonable or proportionate is whether the trial judge could have been within the appropriate range when he awarded the plaintiff a sum that placed her injuries in terms of value approximately one sixth of the way along an imaginary scale of damages for personal injuries which ends at €400,000 for the catastrophically injured plaintiff. In my view, thus assessed, the award which he made to the plaintiff was not reasonable or proportionate. That is not to say that this is a formula that must be applied by every judge when assessing damages for pain and suffering but for me at least it provides a type of benchmark by which the appropriateness of the award made may helpfully be evaluated.
18. For my part I fear there is a real danger of injustice and unfairness being visited upon many of those who come to litigation seeking compensation if those who suffer modest injuries of the nature described in these proceedings are to receive damages of the nature awarded by the trial judge in this case. If modest injuries of this type are to attract damages of €65,000 the effect of such an approach must be to drive up the awards of those in receipt of the more significant middle ranking personal injuries claims such that there is a concertina type effect at the top of the scale of personal injuries. So for example the award of general damages to the person who loses a limb can be little different to the award made to the quadriplegic and that simply cannot be just or fair.
19. So for my part, while I accept that the damages awarded for pain and suffering must be reasonable having regard to the injuries sustained they must also be proportionate to the awards commonly made to victims in respect of injuries which are of significantly greater or lesser import. Modest injuries should attract moderate damages. Thus I regret to say I consider the award made by the trial judge in this case was unduly generous to the point that it has strayed outside the parameters which I would consider appropriate for the injuries concerned.
20. This being so I would propose a reduction in the award of the general damages for pain and suffering to date to €30,000. I would further propose that the award for damages for pain and suffering into the future, which on any view of the medical reports was considered likely to be very modest, would be confined to a sum of €5,000.
21. Accordingly I would allow the appeal and, having regard to the agreed special damages would substitute an award of €37,985 for that made in the High Court.
Nolan v Wirenski
[2016] IECA 56
Judgment of Ms. Justice Irvine delivered on the 25th day of February 2016
1. This is the defendant’s appeal against the judgment and order of the High Court (Barr J.) made in a personal injuries action on 4th July 2014.
2. On that date the High Court judge awarded the plaintiff the total sum of €125,680 damages and directed that the defendant pay the cost of the action, the same to be taxed in default of agreement. A stay on that order was granted on terms that the defendant pay a sum of €60,000 to the plaintiff pending this appeal.
Background
3. The plaintiff’s claim was brought in respect of personal injuries sustained by her in a road traffic accident which took place on 8th September 2010 when she was a passenger in a motor vehicle driven by her husband that was struck from the rear by the defendant’s motor vehicle on the N7 near Naas, Co. Kildare.
4. The High Court judge awarded the plaintiff a sum of €90,000 in respect of pain and suffering to date, €30,000 in respect of pain and suffering into the future and an agreed sum of €5,680 in respect of special damages.
Judgment of the High Court
5. In making his award the trial judge relied upon the following findings of fact. The plaintiff was born on 24th February 1964 and was fifty years of age at the date of the hearing. He found that at the at the time of the impact the plaintiff placed her right hand against the windscreen to protect her head and that as a result of the collision she suffered significant injuries to her right shoulder, right hand and thumb. The plaintiff was prescribed pain killing medication and was advised to undergo physiotherapy. She was referred to three orthopaedic surgeons; Mr. John Quinlan, Mr. Joseph O’Beirne and Mr. Diarmuid Moloney. The last of these, Mr Moloney, has a special interest in upper limb injuries.
6. As to treatment, the trial judge noted that the plaintiff had undertaken approximately sixty sessions of physiotherapy and that as of the date of trial still required painkilling medication on a daily basis. In February 2012 her right shoulder had been manipulated under general anaesthetic and the affected area injected. In November 2012 she had had a further subacromial injection. In May 2013 she underwent an arthroscopic subacromial decompression and rotator cuff repair.
7. The trial judge accepted that the plaintiff remained symptomatic as of the date of the hearing. In particular he found that she continued to have some restriction in relation to the internal rotation of her shoulder and that she suffered from ongoing right shoulder and wrist discomfort. The trial judge expressed himself satisfied that the plaintiff was unable to lift her right arm above shoulder level and could not do tasks which demanded overhead work. He also accepted her evidence that she had difficulty finding a comfortable sleeping position and that as a result she suffered from disruptive sleep leading at times to fatigue and irritability. He further concluded that the plaintiff was restricted in her ability to perform certain activities of everyday living such as ironing, hanging out washing, hoovering and dressing. However, he noted that she continued to undertake all of these activities subject to suffering discomfort and as a result was of the opinion that she would continue to carry out these chores into the future.
8. As to her prognosis, the trial judge was satisfied that while the plaintiff would likely achieve a good functional outcome in terms of her right shoulder she would not return to her pre accident status. She would continue to have some restriction in internal rotation and might experience what he referred to as “occasional pain”.
9. In the course of his judgment the trial judge also referred to the fact that the plaintiff might require further injections into her right thumb to determine the likely cause of her radial hand pain. It is not clear from this part of his judgement whether he compensated the plaintiff in respect of radial hand pain and the possibility that she might require such injections. However, it is clear from what he said about the plaintiff’s radial hand pain that he had insufficient evidence from which he might have concluded, that the same could be ascribed to the plaintiff’s accident.
10. It is clear from the transcript of the evidence and indeed from the judgement of the trial judge that the credibility of the plaintiff as to the extent of her injuries was a live issue in the case. In this regard the trial judge referred to the evidence which had been advanced by the defendant for the purposes of seeking to establish that the plaintiff had exaggerated the extent of her injuries. By this I mean the photographs and video proved by the defendant in evidence and which showed the plaintiff engaging in a number of activities which in the course of her own evidence she had maintained caused her difficulty including ironing, lying on her right side and raising her right arm overhead. When dealing with the plaintiff’s credibility the trial judge also referred to that aspect of the evidence given by the defendant’s orthopaedic surgeon, Mr Michael O’Riordan, to the effect that he could find no abnormality with the plaintiff’s right wrist function nor any abnormality in her shoulder which might explain the restriction she contended affected her ability to undertake those activities of daily living to which I have already referred.
11. Having referred to these aspects of the evidence he stated:-
“I am satisfied that the plaintiff is an honest person, and has not sought to exaggerate her present symptoms. I accept her evidence and that of her husband that she is a person who will not let pain get the better of her. She would do the ordinary chores of daily living even though this will cause problems for her later on.”
Submissions
12. Mr Maher, S.C. on the defendant’s behalf maintains firstly that a number of the findings of fact made by the trial judge were not supported by credible evidence thus impugning the validity of the award of damages based on those findings. Secondly and independently he argues that, even accepting the appropriateness of the facts as found by the trial judge, the sum awarded in respect of both categories of general damages was excessive. Accordingly he seeks to have the said award set aside.
13. As to the trial judge’s finding that the plaintiff’s evidence as to the extent of her injuries was credible, Mr Maher argues that he either failed to engage with or failed to have proper regard for the following matters, namely:-
(i) The Plaintiff in her evidence stated that the road traffic accident had had no effect on a pre existing back injury which had caused her to have a spinal stimulator fitted. However, in her application form to PIAB and also in her Replies to the Defendant’s Notice for particulars she claimed that her back pain had been exacerbated.
(ii) While the plaintiff maintained that the collision had been “ferocious” the photographs of the car damage and the cost its repair (€1,161.02) suggested that the contrary was the case.
(iii) The plaintiff had advanced a claim for past and future care of in or around €350,000 (€38,306.24 for past care and €17,103.69 per annum for future care) which she withdrew, according to the defendant, without adequate explanation, on the morning of the hearing. The sum so claimed was based upon a report that had been prepared by Ms Noreen Roche, Nursing Consultant.
(iv) The plaintiff had asserted and had further demonstrated in the course of her evidence in chief that she could not raise her right hand above the horizontal. However, video evidence advanced by the defendant showed the plaintiff fully extending her right arm overhead and waving enthusiastically on three separate occasions within a very short period of time.
(v) The defendant had produced a video showing the plaintiff ironing for upwards of 25 minutes and photographs and other evidence depicting her resting on a beach on her right shoulder for in excess of 10 minutes in circumstances where she had told the court, in the course of her own evidence, that each of these activities caused her significant pain and discomfort.
14. The defendant accordingly submits that the trial judge’s findings as to the extent of the plaintiff’s injuries and the restriction which they imposed on her activities were not supported by credible evidence and thus could be interfered with by this court on appeal.
15. Counsel for the defendant further argued that the trial judge had erred in compensating the plaintiff on the basis that she could not raise her right arm beyond the horizontal and that her pain was such that she was required to take substantial ongoing medication on a daily basis. The video evidence had conclusively established that the plaintiff was able to raise her right arm above the horizontal and under cross examination she had accepted that the medication she was taking as of the date of the trial was the same as that which she had been taking for her back injury prior to the accident.
16. Finally counsel submitted that even if all of the findings of the trial judge were supported by credible evidence the sum awarded in respect of both categories of damages was excessive. The same was disproportionate to the plaintiff’s injuries. In this regard he relied upon the decisions in M.N. v. S.M. [2005] IESC 17 and Kearney v. McQuillan and North Eastern Health Board [2012 IESC 43.
17. Mr McGrath S.C on the plaintiff’s behalf submitted that there was credible evidence to support the trial judge’s findings as to the extent of the plaintiff’s injuries. He reminded the court that the defendant had not sought to make the case, as he might have done, that the plaintiff’s injuries were inconsistent with the damage to the defendant’s car and he relied upon Mr O’Riordan’s evidence that the plaintiff’s shoulder and arm injuries were consistent with a hyperextension injury caused by the collision as described by the plaintiff.
18. As to the late withdrawal of the claim for care, counsel referred to the explanation which the plaintiff had advanced while under cross examination, namely, that she had only seen Ms. Roche’s report for the first time on the morning of the hearing and in circumstances where she felt that it was not accurate she had advised her lawyers to withdraw it, a decision that was entirely appropriate.
19. As to the level of the plaintiff’s disability, the trial judge had seen the plaintiff give her evidence and was best placed to adjudicate on the nature and severity of her injuries. An appellate court was not entitled to interfere with such findings given that they were, he submitted, supported by credible evidence. He relied heavily on certain aspects of Mr O’Riordan’s evidence to the effect that each of the procedures which had been carried out on the plaintiff’s shoulder would not have been undertaken lightly and the fact that the plaintiff had been willing to undertake them was significant evidence of the severity of her injuries and of her efforts to recover therefrom.
20. As to the overall level of damages Mr McGrath submitted that the total award of €120,000 (€90,000 to date and €30,000 into the future) was within the range of damages proportionate to the plaintiff’s injuries. He again emphasised Mr O’Riordan’s evidence to the effect that the plaintiff would likely continue to experience discomfort in her shoulder and wrist into the future. That being so the sum of €30,000 awarded for future pain and suffering was modest in all the circumstances.
Decision
The Jurisdiction of the Appellate Court.
21. An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries concerned. In Foley .v. Thermoement Products Ltd [1954] 90 ILTR 92 Lavery J. stated that the task of the judge in an appellate court was:-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
22. In Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578 Fennelly J. took a slightly different approach to the same issue. This is how he described the role of the appellate court:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question “whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable.” The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against “relatively petty paring from or adding to awards”. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J in a further passage from the same judgment.”
23. It is undoubtedly the case, as was advised by McCarthy J. in Hay v. Grady [1992] ILRM, and Lavery J. in Foley, that an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as the trial judge at first instance and that “arid pages of a transcript seldom reflect the atmosphere of a trial”. Thus an appellate court must be cautious and avoid second guessing a trial judge’s determination as to what constitutes appropriate damages in any given case. That is certainly true insofar as the plaintiff’s evidence is concerned and indeed in respect of any other oral evidence given in the course of the trial.
24. However, this is a case in which the plaintiff’s medical evidence was not given via voce. The plaintiff’s expert reports were, by agreement, handed in to the trial judge and in this respect this court is in as good a position as the trial judge to evaluate the weight to be attached to that evidence. I am nonetheless mindful of the fact that this medical evidence cannot be viewed in isolation and must be considered against the backdrop of the plaintiff’s own evidence, which this court has not had the benefit of hearing.
25. Accordingly, it is fair to say that it is not for an appellate court to tamper with an award made by a trial judge who heard and considered all of the evidence. It is only where the court is satisfied that the award made was not proportionate to the injuries and amounts to an erroneous estimate of the damages properly payable that this court should intervene.
Assessment of Damages in Personal Injury Cases.
26. The assessment of damages in personal injury cases is not a precise calculation; it is not precise and it is not a calculation. It is impossible to achieve or even to approach the goal of damages, which is to put the plaintiff back into the position he or she was in before they sustained their injuries. In most cases, where the injuries are not severe, a plaintiff will in fact get back to their pre-accident condition but that is not because they have been awarded damages but rather by the natural process of recovery. On the other hand, for some plaintiffs, an award of damages is a very imperfect and inadequate mode of compensation and is a poor substitute for the change in circumstances brought about by the wrongdoing of a defendant, particularly where they will not make a full recovery from their injuries.
27. It follows that the true purpose of damages for personal injuries is to provide reasonable compensation for the pain and suffering that the person has endured and will likely endure in the future. How is that to be measured? The process of assessment is objective and rational but personal to the particular plaintiff. Obviously, it is reasonable to look for consistency as between awards in similar cases but the same kind of injury can have different impacts on the persons who suffer it. Therefore, the court should not have the aim of achieving similarity or a standard figure.
28. The spectrum of personal injuries claims includes everything from a minor sprain to the most severe and catastrophic brain injury which may deprive a plaintiff from birth of most if not all of life’s joys, while leaving them acutely aware of their predicament. Their injuries may result in a great deal of physical pain and suffering. They may suffer from spasticity, quadriplegia and incontinence. Some require peg feeding and most are completely dependent. Plaintiffs falling within this category have no prospect of engaging with normal society as we know it. They can never hope to hold down a regular job, enjoy a loving relationship or aspire to becoming a parent. In many cases these plaintiffs face personal indignity on a daily basis and have a substantially reduced life expectancy.
29. Another type of serious personal injury which the courts are regularly called upon to value are cases of harrowing and repeated sexual assault which oftentimes have life long consequences for the victim. One such example is the case of MN v. SM to which I have already referred. In that case the plaintiff was abused by the defendant and sexually assaulted on a regular basis by the defendant in her own home when she was between twelve and seventeen years of age. The abuse started with inappropriate touching, kissing and digital vaginal penetration. Later the defendant forced the plaintiff to masturbate him. He became more insistent and aggressive and his sexual abuse became painful. On many occasions he forced the plaintiff to have full penetrative sex with him. Apart from the physical abuse attached to these ongoing assaults the plaintiff developed panic, anxiety, nightmares and depression. She had spent years on anti-depressants, had low self esteem and had enormous difficulties with emotional and physical intimacy. The jury awarded the plaintiff damages in the sum of €600,000, an award reduced by the Supreme Court on appeal to €350,000 at a time when Denham J. noted that general damages for the most serious type of personal injuries awards including paraplegia and quadriplegia were at that time €350,000.
30. The brain damaged child and the victim of sexual abuse are but two examples of the types of claims which fall into the most serious end of the personal injuries spectrum and for whom compensation for pain and suffering is far from open ended.
31. Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.
32. It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000 . That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded.
33. There has also been some debate over the years as to whether it is reasonable to consider the potential return on investment of the sum awarded in respect of general damages as being relevant to the assessment, but it seems to me to be safer and more just to ignore that possibility. Any plaintiff may choose to invest a sum awarded to them as compensation in respect of pain and suffering, but they ought not to be obliged to do so.
34. Another suggestion is that the notional maximum award of €450,000 in cases of extreme or catastrophic injury is less than would otherwise be the case because the plaintiff in those cases will recover in full a very large sum in respect of all areas of special damage such as loss of earnings, future care, aids and appliances etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injury he sustains. Special damages represent the calculation of actual losses past and future, which leaves the matter of general damages to be assessed entirely separately. Although there are undoubtedly some dicta in the cases supporting this approach, which I would reject as being unjust and even perhaps irrational, the leading authority would not appear to justify that approach.
35. The plaintiff in Sinnott v. Quinnsworth, [1984] ILRM 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“Probably the most serious condition that a person can suffer as a result of personal injuries.”
36. The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely, that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
37. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, cost and expenses, past and future, which it was the purpose of special damages to cover in full, and the award for compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his general damages reduced because he has received due recompense for his out of pocket expenses and future needs.
38. Moving back to the present case, the essential point is that it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450,000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury. In the exercise if its wardship jurisdiction the High Court regularly approves settlements for injuries of this type at this level of compensation.
39. When it comes to assessing damages I believe it is a useful to seek to establish where the plaintiff’s cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. Such an approach should not be considered mandatory and neither does it call for some mathematical calculation; what is called for is judgment, exercised reasonably in light of the case as a whole. Not every case will be suitable for such an analysis and that is where the trial court will want to explain the reasons why that approach may not be suitable in the particular circumstances. However, the fact that this yardstick is not absolute and may not be of universal application in all cases does not diminish its value generally.
40. As to where on the spectrum of awards the injuries of an accident victim such as Ms Nolan should be located will be determined by the nature and extent of the physical or psychological trauma induced by the defendant’s wrongdoing and the extent to which they may be expected to recover therefrom. There is no template or formula to be applied. Judges, I suggest, tend to look to the presence or absence of particular factors and features to guide them as to the seriousness of any particular injury. They might have regard to the likely answers to the following questions;-Was the incident which caused the injury one which was traumatic and caused distress? Did the particular plaintiff require hospitalisation and if so for how long? What did they suffer in terms of pain and discomfort or lack of dignity during that period? What type and number of surgical interventions or other procedures did they require during that period? Did they need to attend a rehabilitation facility at any stage and if so, for how long? While recovering in their own home, were they capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependant in all or some respects? If the plaintiff was dependant, why was this so? Were they, for example, wheelchair bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependant? What if any limitations had been imposed on their activities such as leisure or sporting pursuits? For how long were they out of work? To what extent was their relationship with family and friends interfered with? Finally, what was the nature and extent of any treatment, therapy or medication required? These are all matters that might be relevant to considering the seriousness of the injury and the amount that ought to be awarded in respect of pain and suffering to date.
41. The appropriate award to make in respect of pain and suffering into the future requires the trial judge to reach a conclusion as to the likely amount of pain, treatment, medication, intervention and lifestyle limitation the plaintiff will have to endure in the future. The elements cannot be exhaustively catalogued for every case. Assessment is a rational process taking into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences or sequelae and if so their nature, the impact on the plaintiff’s life in all its different aspects including his family, his work, his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
42. As Denham J. advised in M.N v. S.M. damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. As she stated at para. 44 of her judgement “there must be a rational relationship between awards of damages in personal injuries cases.” Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries to which I have earlier referred.
43. Central to this process is the evaluation of the plaintiff’s evidence as to all these matters. The plaintiff’s accuracy and reliability are very important, as indeed is his credibility. The last feature is not always a major issue but the others will usually need to be considered. The court usually has only the plaintiff’s evidence as to the effects of the injury on his life so it is important that it should be carefully evaluated. This does not mean that the court should adopt a sceptical approach but it should bear in mind that the onus is on the plaintiff to prove his case and that applies to each particular element. The defendant does not have to disprove the plaintiff’s assertions and it is often in practical terms impossible for the defendant to do so.
44. The plaintiff’s evidence has to be considered against the background of the objective medical evidence. That may come in the form of oral testimony from the plaintiff’s treating doctors and the defendant’s examining and reporting doctors. If there is radiological evidence of scientific tests that back up the plaintiff’s account, obviously that is important. The doctors’ opinions and the factual basis for their views also represent objective material evidence that the court will want to consider.
45. If the plaintiff’s own evidence conflicts with other testimony or documentary material, it is a matter for the court to seek to reconcile the difference. That may not be possible in a particular case for a variety of reasons but the process of objective consideration of the case requires this analysis. The court will want to look for a reason for any inconsistency between the subjective experience described by the plaintiff and the objective evidence available from the medical sources.
46. It is not sufficient for the court simply to declare that it accepts the evidence of the plaintiff or that it is satisfied that he is a truthful witness without saying why that is the case. If the question is raised whether the plaintiff is a credible witness or is exaggerating his injuries or their impact on him, that is a matter that should be resolved by reference to the evidence and not simply by an unsupported assertion based on the impression that he made on the trial judge when giving evidence. Obviously, the judge’s view is very important and indeed in that respect puts the trial court in a position superior to that of the appeal court: see Hay v O’Grady [1992] I.R. 210. But for the appeal court to have the full value of the trial judge’s superior position, it needs to have available to it the reasoning process whereby the judge arrived at his conclusion.
47. This is to say no more than that the judge should give reasons for his conclusions, a precept that is of general application to tribunals and adjudicators generally. However, it is not always the case that judges in personal injury cases express the process of reasoning that leads them to their conclusions. That can leave the appeal court in darkness as to the rationale of the award.
48. It is common nowadays for the parties to agree that the medical reports should be handed into the court to be treated as evidence as if the doctors had testified in accordance with their contents. This is no doubt a very practical and convenient approach which saves time and money but it can add to the difficulties that a judge has in determining reliability and credibility of the plaintiff. There may also be significant differences between the doctors themselves. The judge has to try to analyse the documentary material presented to this fashion by reference to the testimony of the plaintiff. Discrepancies tending to undermine the reliability of the plaintiff’s evidence are nevertheless present because they are contained in a report and not deposed to by oral evidence of the doctor. The practice of producing evidence in this manner does not relieve the judge of the obligation of evaluating the plaintiff’s symptoms against the background of expert evidence.
49. In regard to medical reports, the Court of Appeal is in as good a position as the trial judge to understand the contents but as to their impact on the case, the judge is better located and his view superior provided he has analysed the case in light of all the evidence and has expressed his rationale. That is the most valuable assistance that the trial court can provide for the appeal.
50. This court greatly appreciates the assistance of the trial judge’s evaluation of the case and accords it great respect. The more carefully the trial judge approaches his task, the greater the reluctance that the appeal court has in interfering with the award. The settled jurisprudence of the Supreme Court emphasises this point. At the same time, the Court of Appeal cannot abrogate its own responsibility to entertain an appeal which a party has a constitutional right to bring.
51. Turning to this particular case, it is clear that the plaintiff’s credibility as to the extent of her complaints was a major issue. The accident was not a particularly severe one but that did not exclude the possibility that the plaintiff would suffer a significant injury. The real question was how severe were the problems that the plaintiff was suffering from as a result of the injuries she sustained in the accident. Counsel for the defendant cross-examined the plaintiff on the basis that she was grossly exaggerating her complaints. He put to her evidence that was subsequently adduced from a private investigator who had obtained video footage that counsel suggested was wholly in conflict with her testimony in court. This court had the opportunity of seeing some of the video evidence, which demonstrated that the plaintiff appeared to have no difficulty in raising her right arm and hand above her head and waving to family members in a playful and seemingly entirely painless manner and doing so repeatedly on a family occasion of a summer trip to the beach. Moreover, the plaintiff appeared to be able to lie on her right side without difficulty. These two particular features were points that the plaintiff had described in her evidence.
52. In the circumstances, there were issues of credibility and reliability that were general and specific. Did this video evidence undermine the plaintiff’s credibility overall? How could the plaintiff’s presentation on this summer outing be reconciled with the evidence she gave about specific disabilities in regard to the use of her right arm and lying on her right side? I am afraid that it was insufficient and unsatisfactory for the trial judge simply to declare that he believed the plaintiff and not have engaged in a process of analysis on these important questions that were raised in the trial. It does not follow that the result had to be wholly adverse to the plaintiff but it is difficult to see how this objective video footage did not impact upon the plaintiff’s reliability to some degree at least. Unhappily, the judgment does not deal with this.
53. The problem in the case is that this court is left with a very unsatisfactory situation. The judge took a favourable view of the plaintiff, as he was undoubtedly entitled to do. He could assess damages by reference to the medical reports and to the plaintiff’s evidence, accepting the latter as being substantially true if that was his conclusion following his analysis of the issues and ultimate resolution of the conflicts in evidence.
54. In my view, the proper approach in this case is to accept that the trial judge was satisfied as to the general credibility of the plaintiff and to examine the award of damages against the background of the medical reports but making allowance for the clear evidence that was demonstrated as mentioned above. I do not think that this court should independently make allowance for a diminution of the plaintiff’s credibility generally, notwithstanding my view that the trial judge should have embarked on that consideration. I confess that I am uneasy not only about the video evidence but also because of the withdrawal on the morning of the hearing of a very large capital claim for past and future care. However, in deference to the judge’s superior position as to the plaintiff’s evidence, I would merely engage in a correction exercise as to the particular findings that the judge made and then consider the damages award in that light.
55. My approach accordingly is to accept the trial judge’s general evaluation of the plaintiff at its height and to see whether his award of damages was on that basis wholly disproportionate, as the defendant submits.
Damages
56. Having considered the judgement of the trial judge against the backdrop of the evidence, I am satisfied that he made two findings of fact that cannot be supported by the evidence. The first of these was his finding that the plaintiff could not lift her right arm over the horizontal. The evidence was clearly to the contrary as shown on the video where she is to be seen vigorously waving overhead on a number of occasions in relatively quick succession. It would seem to follow that his related finding that the plaintiff was thus unable to carry out any overhead work was also misplaced. Secondly, he found as a fact that the plaintiff was still taking medication in respect of her injuries as of the date of trial. However, under cross examination she conceded that the medication she was taking was the same as that which she had in any event been taking for her unrelated back condition as of the date of her accident. These erroneous findings would have had the effect of significantly increasing the award of damages to which the plaintiff was lawfully entitled.
57. As to whether the award made by the trial judge was proportionate having regard to the findings of fact, findings which were in any event in error to the extent referred to in the last preceding paragraph, I regret to say that I am satisfied that the award was disproportionately large.
58. The first matter worth noting, in terms of the assessment of damages, is that the accident itself, a rear ending of the vehicle in which the plaintiff was travelling, would have to be considered relatively un-traumatic when compared to most other road traffic accidents, where, at the top end of the spectrum one finds the high speed head on collision in which passengers may be killed, thrown from their vehicles or trapped in mangled or burning cars.
59. Next, of significance is the fact that the plaintiff had no injuries that required hospitalisation or immediate treatment. She did undoubtedly require a number of surgical interventions. She had a manipulation of her shoulder under a general anaesthetic as a day case in February 2012, an injection into the shoulder in November 2012 and in May 2013 underwent an arthroscopic decompression and rotator cuff repair. Once again this procedure was carried out as a day case. These were, according to Mr O’Riordan, all minimally invasive procedures and to put it bluntly, were of an extremely modest nature when compared to the types of significant surgery often required by those involved in much more traumatic and serious accidents.
60. It is without contest that the plaintiff required extensive physiotherapy and assistance from pain killing medication for some unascertained period, but the restriction on her day to day activities up to the date of trial, a period of somewhat more than three and a half years, was very modest in the context of the type of restrictions faced by many plaintiffs who sustain personal injuries. As already stated, the medication she was taking as of the date of the trial was no different to that which she had been taking in respect of her back condition as at the date of her accident, a good indicator for the purposes of assessing damages for pain and suffering to date and indeed into the future.
61. On the evidence the plaintiff was not in any major way restricted by her injuries. She was mobile from the outset and she remained able to enjoy normal family life and leisure activities, facts readily ascertainable from the video which this court had the benefit of viewing and in which she is shown engaging fully with her family in the context of a day out on the beach.
62. While the plaintiff asserted that she had difficulty carrying out certain household activities and that she had recruited the help of friends and family to help her with these because they would otherwise have caused her discomfort, it must be remembered that the plaintiff did not carry out these activities herself and thus was not placed in a position of experiencing the pain and discomfort she might otherwise have experienced if she had done so. It seems likely that the claim advanced for past care and which she withdrew for reasons that remain somewhat unclear, in all likelihood, encompassed such assistance.
63. At trial the plaintiff advised the court and the trial judge proceeded to find that she was capable of carrying out all of the normal activities of daily living even if these caused her some discomfort. It must be assumed that the plaintiff’s discomfort in this regard will be no more than minimal. If the position were otherwise she would hardly have withdrawn the entirety of the claim she had made for future care. The only logical inference to be drawn from that decision is that she is capable of doing all that is required with no more than minimal discomfort.
64. As to her future in respect of her shoulder and arm function, the plaintiff’s own doctors advised that she would improve further even if she was unlikely to fully return to her pre accident status. It was not in dispute that she would continue to have reduced internal rotation but this was not expected to interfere with her day to day activities. Such a restriction, as was advised by Mr O’Riordan, was usually only relevant in the context of sporting activity, a matter to which the plaintiff did not refer in the course of her evidence.
65. The trial judge accepted that the plaintiff had suffered a significant injury and awarded her a total sum of €120,000 in respect of pain and suffering (€90,000 to date and €30,000 into the future). In all the circumstances that sum was wholly disproportionate to her injuries. Although they might have been characterised as significant in so far as they reflected a departure from the state of health which she had enjoyed prior to the accident, they are undoubtedly at the lower end of the scale ranging from the minor to the most severe. For my part I am satisfied that the award was disproportionate and excessive to the point that it should be set aside.
Conclusion
66. To conclude, this is a case concerning injuries which can at best be described as relatively modest when considered in the context of the entire spectrum of personal injury claims. Adopting the approach set out above and thus giving all credit to the plaintiff for the credibility finding in her favour, the reasonable and proper award is in my judgment €50,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future.
67. I would allow the appeal and vary the Order of the High Court accordingly.
Shannon v O’Sullivan
[2016] IECA 93
JUDGMENT of Ms. Justice Irvine delivered on the 18th day of March 2016
1. This judgment is delivered in respect of the defendant’s appeal against two awards of damages made by the High Court (Donnelly J.) on 25th March 2015 at the Kilkenny High Court.
2. The learned High Court judge awarded Mrs. Rita Shannon a total award of damages of €131,463 comprising €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463. She awarded Mr. Anthony Shannon a total sum of €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.
3. The defendant maintains that each of the aforementioned awards were excessive to the point that they should be set aside.
Background
4. Mrs. Shannon was born in July 1960, is a married lady and a mother of two children. Mr. Shannon, was born in May 1957 and is a factory worker.
5. On 7th November 2012 Mr. and Mrs. Shannon were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs. Shannon was travelling as a front seat passenger in her husband’s vehicle when the defendant’s car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed.
6. In the High Court, the defendant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. They did so in reliance on the following assertions:
(i) That the plaintiffs had not proceeded directly to hospital, as they had initially claimed, but had gone there several hours after the collision.
(ii) That while Mr. O’Sullivan maintained he was examined in the hospital, no records existed concerning such examination.
(iii) That the plaintiffs had both sought medical attention for the first time on 1st December 2012, several weeks post-collision.
(iv) That the plaintiffs did not attend their long-established General Practitioner, but attended a retired General Practitioner, Dr. Sean McCarthy, who had been recommended to them by Mrs. Shannon’s brother.
(v) That the plaintiffs had no further medical review until they were seen by Dr. McCarthy for the second time in February 2014, at which stage they were both sent for an MRI examination and referred to a consultant psychiatrist.
(vi) That both plaintiffs had been referred to Prof. Michael Molloy, Consultant Rheumatologist, in May 2014 and were then both referred for EMG studies.
(vii) That both plaintiffs were later diagnosed with psychological injuries.
7. All of the aforementioned matters, and indeed several other issues of credibility, were canvassed with the plaintiffs and their doctors, i.e., Dr. Sean McCarthy and Prof. Molloy, Consultant Rheumatologist. In addition, the court had the benefit of hearing the evidence of the defendant’s own orthopaedic surgeon, Mr. Michael O’Riordan.
Trial Judge’s Assessment
8. Having considered all of the evidence, the trial judge delivered a lengthy and considered judgment in the course of which she dealt with the issues of credibility, causation and the extent of the plaintiffs’ injuries.
9. As to credibility, the High Court judge found the plaintiffs to be honest and extremely hard working people. Neither had missed a day’s work as a result of their injuries. She drew no adverse inferences from the facts that had been established by the defendants relating to the credibility issues to which I have already referred. The fact they had not attended a doctor for 14 months after their initial attendance she considered to be evidence of stoicism on their part, and the fact that they had made no claims in respect of loss of earnings she considered was evidence of honesty.
10. As to the cause of the stretching/bruising-type injury to a nerve in Mrs Shannon’s neck, the High Court judge accepted Prof. Molloy’s evidence that this injury, which was evidenced in EMG studies, was likely caused by the road traffic accident. She concluded that this injury had become chronic, would continue to affect the plaintiff into the future, and that there was some possibility she might require surgery. The trial judge also accepted Prof. Molloy’s evidence that the collision had rendered symptomatic Mrs. Shannon’s pre-existing but previously asymptomatic degenerative changes in her neck. In this regard she had received two injections from Dr. McCarthy.
11. As to the future, the trial judge concluded that as a result of the aforementioned injuries the plaintiffs’ pain had become chronic and would continue into the future. Further, she accepted Prof. Molloy’s evidence that there was some possibility of surgery in the future.
12. As to psychological/psychiatric injury, the trial judge did not accept that Mrs. Shannon’s symptoms had been as severe as she had maintained when she was seen by Dr. Neville, consultant psychiatrist. Had they been severe she would likely have mentioned them to her own General Practitioner, Dr. Walsh, whom she had attended with depression four months prior to her accident and later again in July 2012 in respect of another personal matter. Accordingly, the High Court judge rejected the diagnosis made by Dr. Neville that Mrs. Shannon had suffered Post Traumatic Stress Disorder. That said, she accepted that she had experienced flashbacks and nightmares and had had difficulty sleeping post accident. While these symptoms had abated, she continued to suffer symptoms of ongoing depression which required anti depressant medication. The plaintiff’s prognosis was guarded and her recovery from a psychological perspective depended upon the resolution of her physical symptoms.
13. As to Mr. Shannon’s physical injures, the trial judge accepted that he had also sustained a stretching-type injury to a nerve in his neck. She also concluded that, prior to the accident, he had asymptomatic degenerative changes in his neck which had been rendered symptomatic by the collision. As a result of these injuries, he had symptoms of stiffness and he also experienced tingling in his fingers following physical activity. The latter had eased off. He had received two injections from Dr. McCarthy but no other treatment was advised. At the date of the trial Mr. Shannon was taking over the counter painkillers, but only on an irregular basis.
14. As to the future pain and suffering likely to be experienced by Mr. Shannon arising from his physical injuries, the trial judge concluded that his symptoms had become chronic and were likely to continue into the foreseeable future.
15. As to Mr. Shannon’s psychological injuries, the trial judge accepted that he been shocked and frightened by the collision and that he had made such a complaint to Dr. McCarthy on his first attendance. He had not required any medical attention in respect of his stated anxiety until such time as he was referred to Dr. Morrison, consultant psychiatrist, by Dr. McCarthy in February 2014. The trial judge accepted Dr. Neville’s diagnosis that in the aftermath of the collision Mr. Shannon had developed Post Traumatic Stress Disorder. However, she concluded that his symptoms had been “mild” and less severe than those experienced by his wife. He had required no treatment i.e. no physiotherapy or cognitive behavioural therapy. She was satisfied that after his symptoms of Post Traumatic Stress Disorder had abated that he continued to have an adjustment reaction with mixed emotions of anxiety and mild depression but in respect of which he was not making any major complaints of continuing ill effects.
16. In conclusion, the trial judge found that Mr. Shannon, who was 57 years of age at the time, had developed a significant and permanent condition as a result of the road traffic accident and that in respect of which he would continue to be symptomatic into the future.
Submissions
17. Mr Finbar Fox S.C. on the defendant’s behalf makes a relatively straightforward submission in relation to both cases. He states that the sum awarded by the trial judge was excessive in each case both in respect of pain and suffering to date and pain and suffering into the future.
18. Insofar as Mrs. Shannon’s case was concerned, Mr. Fox drew the courts attention to the fact that as of the date of trial only two years and four months had elapsed since the date of the accident. During the first 15 months of that period, Mrs. Shannon had required practically no medical intervention or treatment. Between February 2014 and the date of trial, while there had been a greater medical presence in her life she had received practically no treatment of any type. Further, the evidence was that psychiatric symptoms had been at their worst in the first year. She had missed no time from her work and gave no evidence that her enjoyment of any other activities had been adversely affected. That being so the award of general damages to date of €50,000 was excessive.
19. Insofar as the award of €80,000 in respect of pain and suffering into the future was concerned, Mr. Fox relied upon the fact that it was not expected that the plaintiff would require any medical treatment. It was not suggested that her work or leisure activities would be impaired in any way. Beyond evidence that the plaintiff had good days and bad days in terms of pain in her neck or tingling in her forearm, and that there was a possibility of future surgery in respect of the stretched nerve in her neck, there was nothing in her medical condition or prognosis to support an award of that magnitude.
20. As for Mr. Shannon, breaking the claim down in the same fashion, Mr. Fox submitted that he too had required practically no medical or intervention over the 15-month period immediately following upon the collision. He had received no treatment of any type. He continued to work and made no complaint that his leisure activities had been interfered with. Between February 2014 and the date of trial, as in his wife’s case, there had been a greater medical presence but little by way of treatment. There was nothing he could not do and nothing had been taken from him in terms of his enjoyment of life. In such circumstances, the award of €35,000 in respect of pain and suffering to date was excessive.
21. As to the award of €50,000 in respect of pain and suffering into the future, Mr. Fox submitted that there was no evidence from any medical practitioner, or indeed the plaintiff himself, such as would justify an award of that nature. There was no suggestion he would require any treatment or medication into the future. Further, he would not be restricted in any of his activities.
22. Mr. Fox submitted that the severity of the injuries sustained by both plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or had deprived them of their ability to participate in activities which they would otherwise have enjoyed. Measured in this way, the awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.
23. Mr. Aidan Doyle S.C. on the plaintiffs’ behalf submitted that the awards that had been made by the learned High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.
24. As to Mrs. Shannon’s injuries, counsel submitted that there was objective evidence of disc encroachment on a nerve causing ongoing pain and that her symptoms had become chronic to the point that it was probable she would be symptomatic indefinitely. She had sustained nerve damage for which she had required two injections into her neck and she remained at risk of surgery in this regard. Her pre-existing degenerative changes in her neck had also become symptomatic. In addition, Mrs. Shannon had sustained a psychiatric injury and in the initial aftermath of the collision had experienced symptoms of flashbacks, nightmares and sleep disturbance. While she was significantly improved as of the date of trial, she nonetheless continued to experience symptoms of depression in respect of which she was still taking medication and in circumstances where her prognosis was guarded.
25. Mr. Doyle submitted that Mrs. Shannon’s injuries should not be equated with the straightforward whiplash-type injury often seen in the courtroom setting. The fact that she had not received significant treatment nor required time off from her job, should not be relied upon as evidence that her injuries were not severe, particularly given that the trial judge had taken the view that these factors were indicative of stoicism on her part.
26. Mr. Doyle submitted that an assessment of damages should not be carried out by reference to some imaginary scale of quantum, where, at the bottom of such scale, minor injuries were to be found which attracted very small damages and at the top, catastrophic injuries in respect of which general damages of in or around the €450,000 figure was the appropriate compensation. He submitted that awards at the highest end of the scale were, in reality, capped by reason of the fact that those plaintiffs were recovering substantial sums of money in respect of special damages. Thus, it would be unfair to assess the plaintiff’s entitlement to damages by reference to where, on such a scale the plaintiffs injuries were to be located.
The Principles to be Applied
27. It is accepted by the parties that, as per the judgment of McCarthy J. in Hay V. O’Grady [1992] 1 I.R. 210, as this Court did not see and hear the witnesses give their evidence, it is bound by the findings of fact made by the learned High Court judge insofar as the same are supported by credible evidence. In this case, there is no suggestion that the findings of the trial judge were not so supported.
28. In these circumstances, this court may only overturn the awards of damages made if it is satisfied that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.
29. The task of a judge sitting in an appellate court when asked to interfere with an award of damages made in the High Court was described in the following manner by Lavery J. in Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92 :-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case were personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
30. The same issue was considered by Fennelly J. in Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578, where he described the role of the appellate court in the following manner:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, ‘would be inclined to give’ (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question ‘whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable’. The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against ‘relatively petty paring from or adding to awards’. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, and of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
31. It is clear from the aforementioned authorities that an appellate court should not interfere with the award of a trial judge if it is only for the purpose of making some moderate adjustment. This is because the appellate court has not heard or seen the witnesses give their evidence and must accordingly be cautious about second guessing the trial judge’s assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not proportionate to the injuries sustained and where it considers the award made constitutes an erroneous estimate of the damages properly payable.
The Quantification of Damages
32. It has long been accepted that awards of damages must be:-
(i) fair to the plaintiff and the defendant,
(ii) proportionate to social conditions, bearing in mind the common good
and
(iii) proportionate within the scheme of awards made for other personal injuries (see MacMenamin J. in Kearney v. McQuillan & North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
33. However, even where awards are made in accordance with these principles, the goal of damages, which is to put the plaintiff back in the position that he or she was in before they sustained their injuries, is, in most cases, unattainable. This is particularly so in the case of serious injury.
34. As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
35. Insofar as Mr. Doyle has submitted that the plaintiffs claim should not be measured on a scale of damages which starts at zero and ends at €450,000, on the basis that €450,000 is not in fact the top of the scale because damages are capped at that level for those who suffer catastrophic injury and receive very significant awards by way of special damage, I reject that proposition.
36. It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
37. It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
38. It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.
39. The plaintiff in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“.. probably the most serious condition that a person can suffer as a result of personal injuries.”
The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
40. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, costs and expenses, past and future, which it was the purposes of special damages to cover in full and the award of compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his damages reduced because he has received due recompense for his out of pocket expenses and future needs.
41. Accordingly, coming back to the facts of the present case, I remain of the view that it is reasonable to view the plaintiff’s injuries in the context of the entire spectrum of personal injury claims where, at the outer end, a plaintiff might expect to recover damages somewhere in the region of €450,000. I accept that there may be individual cases in which, having regard to their own specific facts, a judge might rightly decide to exceed that sum.
42. As to where on the spectrum of awards Mr. and Mrs. Shannon’s injuries should be located depends upon extent to which, as a result of the defendant’s wrongdoing, they have suffered and will continue to experience, inter alia, pain, suffering and loss of enjoyment of life. While it is important to understand the nature of their injuries and the relevant medical diagnoses, far more important is the evidence concerning the extent to which those injuries have already and may in the future adversely affect their lives. The value of an injury cannot be determined by the label attached to it. For example, for a judge to state that they were satisfied that a plaintiff suffered from let us say an adjustment disorder or a stretching injury to a nerve would of course be helpful and relevant to the court’s understanding of their condition. However, such a finding needs to be followed up with the trial judge’s assessment as to the consequences for the plaintiff of such an injury. An appellate court needs to know the trial judge’s assessment as to the severity of the symptoms generated by the condition, the treatment undertaken or to be undertaken in respect thereof and the extent to which the symptoms and/or treatment have or will interfere with the plaintiff’s enjoyment of life and for what period.
43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the plain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.
45. It is not possible to catalogue all of the elements to be considered and potentially addressed by a trial judge in a personal injuries case. However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
Decision
46. I find myself in the unenviable position of having to take issue with the conclusions of the learned High Court judge who clearly gave great care and consideration to each of these claims before delivering a lengthy and thoughtful judgment. I fear that she became caught up in the difficult task of deciding the credibility issues raised for her consideration, with the result that she did not provide a sufficient analysis of her reasons for making such large awards in favour of these plaintiffs.
47. Undoubtedly, the trial judge considered the plaintiffs’ injuries to be “significant”, because this is what she said in her judgment, and she then proceeded to assess damages, in the case of both plaintiffs, on that basis. However, her reasons for reaching such a conclusion are not obvious. While the trial judge described in medical terms the nature of the physical and psychological injuries sustained by the plaintiffs and went on to identify how these injuries were borne out by EMG and MRI studies, her analysis of the effect of such injuries on the plaintiffs is not sufficiently detailed to support awards of the magnitude which she made. It is vital that judges in personal injuries cases set out their conclusions as to the consequences for the plaintiff of the injuries sustained in terms of pain, suffering and loss of enjoyment of life, both past and future. Without that reasoning an appeal court is somewhat left in the dark as to the rationale behind the award.
48. The trial judge concluded that both plaintiffs had suffered an injury to a nerve in their neck, causing cervical radiculopathy. She also concluded that it was possible that Mrs. Shannon might require surgery in respect of this injury at some future date. She was also satisfied that both plaintiffs had suffered soft tissue injuries to their neck and shoulders and that in relation to the former, that asymptomatic pre-existing degenerative changes had been rendered symptomatic by the collision. She concluded that these injuries had and would have a significant effect on their lives.
49. In this case, it is difficult to see much evidence of pain, suffering, treatment or limitation on life style such as would support an award of general damages to Mrs. Shannon in the sum of €50,000 and in the case of Mr. Shannon of €35,000 in respect of the two-year and four-month period between the date of the accident and the date of trial. I will deal with the conclusions of the trial judge in respect of the plaintiffs’ physical injuries before turning to her findings in respect of their psychological injuries.
50. The trial judge accepted that they were both assessed in hospital on the evening of the accident. However, they were not detained and did not require any medical intervention or treatment. Whatever symptoms they may have had did not preclude them from going to work the next day and living what appeared appears to have been a relatively normal life until such time as they both went to Dr. McCarthy on 1st December 2012. On that date, both plaintiffs were prescribed painkilling medication, i.e., Tylex for one month.
51. It is undoubtedly the case that the trial judge found that the plaintiffs were both suffering from pain in the neck and shoulder at this stage. However, it is to be noted that Dr. McCarthy did not consider their injuries sufficiently serious to refer them for further expert advice or investigation. Neither did he consider their complaints sufficiently serious to advise them that they should come back for review after any stated period. It is common case that neither of them returned to seek any further advice, treatment or medication until February 2014, some 13 months later.
52. The trial judge clearly addressed the implications of the plaintiffs’ lack of engagement with the medical process over that period and concluded that this was because they were stoical, and that may well be so. However, the fact that they did not return seeking further medication, treatment or advice has to be somewhat indicative of the level of pain and suffering that they were experiencing.
53. Because the court usually has only the plaintiff’s evidence as to the extent of their pain, is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment. In that regard, it is common case that most people who sustain injury and have consequential pain seek medical intervention and, if necessary, treatment. The needs of the injured party are usually at their greatest in the days, weeks and months following injury when engagement with the medical and allied professions is likely be at its most intense. Further, it is usually during these periods that plaintiffs who suffer minor or modest injuries are most affected in terms of their ability to work and/or participate in sports, hobbies or pastimes. It must be inferred from the fact that the plaintiffs were both in a position to continue to work, were able to participate in their normal day-to-day activities and did not feel the need to attend a doctor between December 2012 and February 2014 that their symptoms over this period were relatively modest.
54. As to the period between February 2014 and the date of trial, it is true to say that Mr. and Mrs. Shannon were referred for MRI and EMG studies and were also referred for specialist review by Dr. Morrison and Prof. Molloy. While these referrals led to a number of diagnoses being made, such as a stretching or bruising of a nerve and Post-Traumatic Stress Disorder, the lives of the plaintiffs continued on, much the same as they had done over the earlier 13-month period, the only difference being that they each received two injections from Dr. McCarty in respect of their respective nerve injury. Both continued with their work, neither of the missing a day. Neither did they have to abstain from any of their normal activities. Mr. Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Mrs. Shannon confirmed that she was able to mind her grandchildren and go to the gym.
55. Of some further assistance in terms of determining the extent of the impact of the injuries sustained on the plaintiffs’ lives must be the fact that at no time did either of them, as an individual, attend a medical practitioner to seek help, treatment or medication in respect of their symptoms. On each occasion they attended Dr. McCarthy, which was only three times in total, they went together. On the only occasion they attended Prof. Molloy, they went together. Likewise, they attended together with Dr. Morrison and later with Dr. Neville, she having been retained due to Dr. Morrison’s unavailability. So while the plaintiff’s may have been symptomatic, neither of them ever had any acute episode or a period of individual pain which required them to seek advice, treatment or medication.
56. Insofar as the plaintiffs’ psychological injuries are concerned, I have detailed these earlier at para 12 and 15 of this judgment, so I will not repeat them here. Suffice to state that I find it difficult, from the judgment of the trial judge, to assess the extent to which she likely relied upon the plaintiffs’ psychological injuries when she came to assess the amount of damages to be awarded in respect of pain and suffering to date. While she made findings of fact concerning the psychiatric injuries sustained by both plaintiffs and charted their recovery, she did not state her conclusions as to the severity and frequency of their symptoms such as flash backs and nightmares, nor her conclusions as to the extent to which and over what period these affected the plaintiffs in their enjoyment of everyday life.
57. What is clear, however, is that regardless of the existence of symptoms such as those last mentioned, the severity of the plaintiffs’ symptoms was not such that they felt it necessary to seek any professional assistance. It was only following their attendance upon Prof Molloy in 2014 that they were ultimately referred for psychological review.
58. Insofar as pain and suffering into the future is concerned, while the trial judge clearly took the view, in Mrs. Shannon’s case, that she would continue to suffer some tingling in her arm and pain and discomfort in her neck because her condition had become chronic, regrettably, she does not detail the symptoms or limitation on lifestyle that explain an award of the magnitude of €80,000. She did not, for example, identify what she believed Mrs. Shannon would likely experience in terms of pain arising from the chronicity of her symptoms, and without such analysis an appellate court is in a position of some difficulty when asked to review a trial judge’s award of general damages. It needs to know the trial judge’s conclusions as to the likely frequency, severity and duration of any adverse sequelae. Obviously, a plaintiff who is expected to suffer modest pain which can be relieved by over-the-counter medication for a couple of hours a week will attract an entirely different award of damages to the plaintiff who is expected to experience lifelong pain on of the type that cannot be controlled by medication. Further, an appellate court needs to know the conclusions of the trial judge as to the likely effect that any anticipated pain will have on a plaintiff’s lifestyle, hobbies and work.
59. However, this fact notwithstanding, I think it can reasonably be inferred from:-
(i) her lack of any apparent need for prescribed medication, other than Tylex for a month post accident,
(ii) the fact that her only medical treatment consisted of two injections given by Dr McCarthy in 2014,
and
(iii) the fact that she required no rehabilitative intervention of any sort and (iv) that she had not been disrupted in her working, leisure or sporting activities, that Mrs Shannon was unlikely to experience anything significant in terms of pain or discomfort or limitation in lifetime activities post the date of trial.
60. Insofar, as a trial judge may conclude, as occurred in the present case, that a plaintiff remains at risk of surgery, an appellate court needs to know whether the judge considered that risk to be minimal or substantial. It also needs to know what such surgery would entail in terms of pain and suffering, the relevant recuperation period and the likely prognosis. If the risk of a surgical procedure is 50% as opposed to 5% this will obviously sound in damages. Likewise, the extent of any such surgical intervention and the plaintiff’s likely prognosis are all material to the damages to which the plaintiff is entitled.
61. In this case, however, all we know from the judgment of the trial judge is that she factored into her consideration, when awarding damages for pain and suffering into the future, the fact that the plaintiff remained at risk of surgery in respect of the bruising injury to the nerve in her arm. The extent of that risk is not mentioned nor any detail given as to what the surgery, if it were required, would involve. The fact that she did not do so, to my mind, was because none of these issues were canvassed in any detail with Prof. Molloy, who was the witness who had advised as to the possibility of such surgery. Absent that detail, I am not satisfied that there was sufficient evidence to entitle the trial judge to make an award which included compensation for the possibility that she might require future surgery.
62. A similar problem arises in respect of the trial judge’s conclusion that the plaintiff had developed a depressive illness which required antidepressant medication and in respect of which the prognosis was guarded. The trial judge did not identify the extent to which she expected such condition to impact upon the plaintiff’s life nor whether her symptoms were fully or partially controlled by medication. What is clear, however, is that up to the date of trial, there was little evidence to suggest that the plaintiff’s psychological symptoms had not adversely affected her from a vocational or social perspective. Thus, it might reasonably be inferred, notwithstanding the absence of any specific guidance from the trial judge, that Mrs. Shannon was unlikely to suffer much by way of psychological problems deriving from her road traffic accident into the future.
63. When it came to her assessment of Mr. Shannon’s injuries, the trial judge concluded that his injuries were less severe than those sustained by his wife but that he was likely to remain symptomatic indefinitely because of the accident. Unfortunately, however, she does not state her conclusions as to the frequency or severity his pain or emotional upset and she appears to have placed little reliance upon the fact that he was not limited in his work or leisure activities as a result of his injuries.
64. It is true to say, as already advised, that the trial judge concluded that the reason why Mr Shannon did not stay out of work was because he was stoical, and this court must accept that finding. However, it must be inferred from the fact that he was in a position to remain at work and never missed a single day that his pain, whatever its frequency, was manageable to the point that his life remained much as it was prior to the collision. His sole expressed limitation was casting a line when fishing and with the exception of two injections administered by Dr McCarty, he received no treatment of any nature.
65. Insofar as the trial judge’s award for damages for pain and suffering into the future is concerned, she clearly based her award on her conclusion that the degenerative changes in Mr Shannon’s neck would likely continue. However, as in the case of Mrs Shannon, the she did not identify the nature and extent of any pain, suffering lifestyle limitation that he would likely experience as a result. I have already expressed my view that a trial judge must support any such award by reference to their conclusions on such matters. Without that detail it is difficult for an appellate court to assess whether an award of general damages was reasonable, just and proportionate having regard to the injuries . These difficulties notwithstanding, in my view, the was nothing in the evidence to suggest that Mr Shannon would experience much by way of pain or discomfort into the future. His symptoms prior to trial had not impacted on his ability to fully engage with all aspects of daily living, and there was no evidence to suggest that his condition would deteriorate.
Conclusion
66. Regardless of the deference which an appellate court must afford to the judgment of the trial judge, for the reasons already stated I am satisfied that the awards of general damages in favour of these plaintiffs were not just and fair or proportionate to the injuries they received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.
67. I’m quite satisfied that had the trial judge assessed the significance of the plaintiffs’ injuries by reference to the severity of other injuries which fall within the entire spectrum of personal injuries claims and the awards commonly made in respect of thereof and, had she had regard to factors such as those earlier identified at paragraph 42 of this judgement, she would likely have made a significantly lesser award in each case.
68. As to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, I am quite satisfied that their claims must fall towards the bottom end of the scale which has minor injuries at one extremity and catastrophic injury at the other. In this context their injuries must be viewed as modest indeed. I accept, of course, the trial judge’s finding that Mrs Shannon’s injuries were slightly more severe than those of her husband. However, in order for their awards to be fair and proportionate, they too must be modest. That being so, in Mr Shannon’s case I would set aside the award of the trial judge in respect of general damages and would propose in its place an award of €25,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future. In Mrs Shannon’s case I would likewise set aside the award of the trial judge in respect of general damages and propose an award of €40,000 be made in respect of pain and suffering to date and €25,000 in respect of pain and suffering into the future.
Murphy v County Galway Motor Club Ltd
[2016] IECA 116
Judgment of Ms. Justice Irvine delivered on the 14th day of April 2016
1. This is the plaintiff’s appeal against the judgment and order of the High Court (McGovern J.) of the 6th April 2011 made in the context of a personal injuries action. The proceedings concern injuries, loss and other damage sustained by Mr Blaine Murphy on 5th February 2005 when he was struck by a motor vehicle when attending the Galway International Motor Rally at Loughrea, Co. Galway. Following a four day hearing, wherein both liability and quantum were in dispute, the trial judge awarded the following sums to the plaintiff by way of damages:-
• General damages for pain and suffering to date: €100,000
• General damages for pain and suffering into the future : €100,000
• Loss of earnings to date: € 40,000
• Loss of earnings into the future: €175,000
• Costs of anticipated prosthesis: €170,000
• Agreed special damages: € 12,498
Total: €597,498
2. As to liability, the trial judge dismissed the proceedings against the fourth named defendant, the driver of the motor vehicle that struck the plaintiff, at the conclusion of the plaintiff’s evidence. At the conclusion of the trial, he apportioned liability as to 33.33% to the first, second and third named defendants and 66.66% to the plaintiff. Accordingly, he granted judgment against the defendants for €199,166 together with costs, to be taxed in default of agreement.
3. On this appeal the plaintiff maintains:-
(i) that the finding of 66.66% contributory negligence on the part of the plaintiff was perverse having regard to the evidence;
(ii) that the sums awarded in respect of both categories of general damages were unjust and lacking in proportionality;
(iii) that the trial judge incorrectly concluded that the plaintiff’s potential net earnings from 5th February 2005 to the 8th February 2011 were €115,000 as opposed to €159,800. Accordingly, the figure which he arrived at in respect of past losses i.e. €40,000, having taken into account actual earnings, social welfare payments and other expenditure on the part of the plaintiff, was not supported by the evidence;
(iv) Insofar as the award of €229,602 in respect of future loss of earnings is concerned, the principal complaint is that the approach adopted by the trial judge was not supported by the evidence. The plaintiff submits that he ought to have calculated the claim for future loss of earnings on the basis that the plaintiff would likely have worked as a self- employed plumber but for his injuries and would have had an earning capacity of €200 per day. Instead, he had done so on the basis that he would likely have worked in paid employment 39 hours a week at the minimum hourly rate applicable to the construction industry. Had damages been calculated on that basis, prior to any deduction in respect of the considerations advised in Reddy v. Bates, the sum awarded would have been €307,000 as opposed to €229,602 in respect of this category of loss.
Background facts
4. The plaintiff was born on 23rd June 1985 and was nineteen years of age at the date of the unfortunate and tragic events that form the subject matter of these proceedings.
5. On 5th February 2005 the plaintiff and three of his friends decided to attend the Galway International Motor Rally. The rally was organised and managed by the first named defendant under the auspices of the second named defendant and the third named defendant provided the safety services for the rally.
6. Having parked their car, the plaintiff and his friends walked in excess of three kilometres over boggy ground to get to a good viewing area. The plaintiff had a video camera with him and wanted to shoot some footage and take some still photographs of the cars as they were put through their paces.
7. Having stopped for approximately 20 minutes to take some footage at a location where there was a bend in the road (“location 1”), the plaintiff and his friends moved further down the same roadway to an area where the road travelled over the crest of a hill. This was a point at which the wheels of cars were seen to leave the road as they went over the crest, or alternatively were seen to lighten up on their suspension while remaining in contact with the road.
8. The plaintiff and his colleagues took up a viewing position, somewhat beyond this crest (“location 2”). The trial judge found as a fact that location 2 was 52 metres or so beyond the crest of the hill. There was some dispute as to whether the plaintiff sat down on a rock to the left of the roadway from the oncoming driver’s perspective or whether he was, as he maintained, a couple of metres further away from the crest sitting on a tuft of grass at a slightly more elevated level. However, because of the proximity of the two positions, the trial judge said it made no difference to his findings.
9. As the plaintiff and his friends wandered from location 1, where a significant number of people including a marshal were gathered, neither the marshal nor anyone else attempted to stop them moving down towards location 2 beyond the crest of the hill. Further, there was no warning or indication of any type that they should not locate themselves in this area.
10. For the purposes of this appeal the court viewed the video footage taken by the plaintiff at location 1 following their arrival, and also the video footage taken after the group had settled at location 2. This latter segment was very short indeed. It showed no more than six cars coming over the crest of the hill before it was cut short by reason of the collision between a car that left the roadway at this point and the plaintiff. The sound track however continued, and to say that the same is harrowing is perhaps an understatement. The plaintiff is to be heard screaming in pain as a result of the horrendous injuries which he sustained. His terror and pain are palpable.
11. It is common case that the plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.
12. The trial judge, having heard and considered all of the evidence, concluded that the plaintiff would suffer a lifelong disability associated with the amputation of his leg. He accepted that after ten or fifteen minutes of walking that the stump often became sore and at times broke down to the point that it oozed blood. He accepted that the plaintiff could not stand for long periods, that he had difficulties managing any steep incline or walking over uneven ground, that he had difficulty with steps and stairs and could no longer play any sport that involved running. The trial judge accepted the medical evidence that the plaintiff was at significant risk of developing arthritis. The medical evidence in this regard anticipated that the plaintiff would develop arthritis on the non amputated side in his remaining knee and in his spine.
13. I will deal with the trial judge’s findings in respect of the plaintiff’s special damage claim later in the course of this judgment.
General damages
14. An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries sustained. In Foley v. Thermos Cement Products Limited [1954] 90 ILGR 92 Lavery J. stated that the task of the judge in an appellate court was:-
“To make its own estimate of the damages he would award and then compare this with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making its estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witness and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
15. This approach has been adopted in many subsequent cases. In Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 I.R. 547, Fennelly J. described the role of the appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne).”
16. It is generally accepted that an appellate court should not engage in what might be considered to be petty interference with an award of damages and should only interfere when it considers that there is an error in the award which is so serious as to render it unjust or lacking in proportionality. The test of proportionality seems to me to be an appropriate one, regardless of whether the complaint be one of excessive generosity or undue parsimony.
17. It is certainly the case that an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as a judge at first instance and, as was advised by McCarthy J in Hay v. O’Grady [1992] ILRM, the “arid pages of a transcript seldom reflect the atmosphere of a trial”. For this reason an appellate court should be slow to interfere with or second guess a trial judge’s determination as to what constitutes appropriate damages in any given case.
18. Principle and authority require that awards of damages should be:-
(i) fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate within the scheme of awards for personal injuries generally.
(See MacMenamin J. in Kearney v. McQuillan and North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
19. To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.
20. Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life.
21. The trial judge awarded the plaintiff €100,000 in respect of pain and suffering for the five year period between the date of the injury and the date of trial. Having considered the evidence as to the plaintiff’s injuries and what he suffered over that period, I am satisfied that, while the award was certainly not on the generous side, it was within the range that may be considered proportionate and fair. Where I disagree with the trial judge is in his assessment of the general damages for pain and suffering into the future.
22. One of the factors which to my mind should sound heavily in damages is the age at which a plaintiff sustains a devastating injury. This plaintiff was only nineteen and was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity. The evidence demonstrated that in respect of each of these areas, the plaintiff’s life would likely be permanently and irreparably changed by reason of his injuries. He was not in a position to continue with his chosen trade i.e. that of a plumber. He is unable to participate in most sporting activities. He suffers ongoing discomfort and disability and will do so for the rest of his life. He will have decades of embarrassment and upset because of the disfigurement of his body. Further, he runs the risk of future complications in terms of his mobility due to the natural ageing process. In addition, he is at risk of developing significant arthritis in a number of joints as a result of his amputation.
23. As to the type of activities which a young man of nineteen years of age might expect to enjoy, the plaintiff cannot cycle, play soccer or engage in any activity which requires mobility. He is grossly affected in his social and leisure activities, although he drives a modified car. He will not be in a position to enjoy many or the activities, holidays and leisure pursuits that able bodied people take for granted because he is unable to deal with uneven ground or rough terrain. I cannot but think of those fathers I see kicking a ball with their young children or teaching them to swim or perhaps strolling with toddlers on their shoulders. The plaintiff will likely be denied all of this and so much more.
24. Of even greater significance is the fact that he plaintiff will start every day of his life with the task of attaching a prosthetic limb and will end each day with the reverse process. Regardless of the plaintiff’s optimism as to the future, this will be an enormous burden to bear for the rest of his life.
25. When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss.
Loss of earnings to date
26. Mr. McGovern S.C. on behalf of the defendant does not contest that the trial judge, in his judgment, incorrectly concluded that the evidence given by the plaintiff’s actuary, Mr. John Byrne, was to the effect the plaintiff’s total net loss of earnings from February 2005 to February 2011 amounted to €159,800 as opposed to the €115,000. However, he was not in a position to agree that the court should rectify this error by simply adding the difference between those two figures namely €44,800 to the award which the trial judge made under this heading i.e. €40,000.
27. Mr. McGovern submitted that the trial judge intended to reduce the net loss of earnings claim by reference to the plaintiff’s actual earnings up to the date of trial and any deductible social welfare benefits received between 5th February 2005 and 5th February 2010, subject to some adjustment to allow for the fact that the plaintiff had bought into a taxi business in 2008 at an approximate cost of €50,000. However, other than the plaintiff’s actual earnings, which amounted to €44,000 over the said period, it was not clear how the judge had arrived at the additional figure of €31,000 to make up the €75,000 which he deducted from what he mistakenly believed were the plaintiff’s potential net earnings of €115,000. He submitted that the trial judge was entitled to deduct five years social welfare payments and that he probably had not done so.
28. I am quite satisfied, and the parties agree, that the starting figure adopted by the trial judge in respect of his past loss of earnings calculation was incorrect. It ought to have been €159,800 as opposed to €115,000. It is also clear that he intended to deduct €75,000 in respect of the plaintiff’s actual earnings over the relevant period as well as deductible social welfare payments. It would further appear that he had intended adjusting the claim for past loss of earnings to take into account some part of the losses sustained by the plaintiff in investing in a taxi driving business which proved unsuccessful.
29. Of the sum deducted i.e. €75,000, €44,000 is accounted for in actual earnings. The balance of €31,000 was deducted, as the trial judge stated, on a somewhat “unscientific” basis to take into account deductible social welfare payments under the Social Welfare (Consolidation) Act 1993. The only evidence as to deductible social welfare payments related to the plaintiff’s receipt of disability benefit which he received for a period of one year. There was no evidence that he received any other deductible social welfare payments.
30. Based upon the evidence, it would appear that the defendant got a very favourable result when the trial judge decided to deduct €75,000 from this aspect of the plaintiff’s claim. A deduction of that size is hard to justify in circumstances where the trial judge seemed sympathetic to the fact that the plaintiff had spent substantial money trying to gain entry into the taxi business. If he had intended to compensate the plaintiff for any of the €50,000 which he maintained he had spent in that regard, that sum should have been added to the sum award. That expenditure could never have operated to the defendant’s benefit by way of deduction.
31. In these circumstances, there is no basis upon which this court should interfere with the trial judge’s calculation as to the amount to be deducted from the plaintiff’s anticipated earnings up to the date of trial. However, given that it was his clear intention to start his calculations based on expected earnings of €159,800 as opposed to €115,000 it would be unjust not to substitute the correct figure into the trial judge’s calculations. That done, taking the correct staring figure of €159,800 and deducting the sum of €75,000, the appropriate award in respect of past loss of earnings is €84,800.
Future loss of earnings
32. At the time of his accident the plaintiff had completed his leaving certificate and in 2004 had commenced working with his father in his plumbing business. He was still an apprentice as of the date of his accident.
33. The evidence established that while the plaintiff obtained a modest leaving certificate his I.Q was within the top 10% of the population and when measured against students of university level he was within average range. He had hoped eventually to take over his father’s business but this obviously was denied him insofar as a career in plumbing became impossible due to his mobility restrictions.
34. In assessing the plaintiff’s claim for future loss of earnings, the High Court judge had evidence from Ms Ann Doherty, employment consultant, that a self employed plumber would expect to earn a minimum of €200 gross per day or a net weekly sum of €620. Assuming that the plaintiff could retrain within three years from the date of the trial and would then be capable of earning €27,000 gross per annum or €440 net per week, his net loss from that point on would be €180 net per week. Allowing the plaintiff full losses (€620 net) for the three years of retraining and the €180 net differential thereafter placed a capital value €307,380 on the plaintiff’s future loss of earnings.
35. The court was also given figures to demonstrate what the plaintiff’s loss would have been if he had worked as a plumber in paid employment working a 39 hour week and receiving what was then the minimum rate of pay for a qualified construction craftsman, namely €18.60 per hour gross.
36. The trial judge found as a fact that were it not for his injuries, the plaintiff would have continued to work as a plumber. That finding was based upon credible evidence. However, it is difficult to see how the trial judge decided, having regard to the evidence, to calculate the plaintiff’s future loss on the basis that he would have continued, for life in paid employment working 39 hours a week on minimum wage. Adopting that scenario, allowing the plaintiff full losses at the rate of €562 net per week for the first three years and thereafter a differential of €122 net per week, the trial judge concluded that the plaintiff’s future loss of earnings, before any consideration of the contingencies provided for in Reddy v. Bates was €229,602.
37. Counsel on behalf of Mr. Murphy submits that the trial judge was perverse in adopting the latter of the two models advised by Mr Byrne as the basis for calculating the plaintiff’s future loss of earnings. He submits that all of the evidence favoured the judge concluding that the plaintiff, were it not for his accident, would have been a self employed plumber and would have continued to work as such for the rest of his working life.
38. I have carefully re-read the transcript of the plaintiff’s evidence and that of his employment consultant, Ms. Ann Doherty. Having done so, I cannot conclude that the trial judge was perverse in his failure to adopt in its entirety the self- employed model urged upon by the court by Mr. Kiely. It is clear that the plaintiff would have had a preference for self employment, that he was highly industrious and extremely smart. Nevertheless, there was some evidence to suggest that, depending upon the state of the economy in this country, he might have had to go abroad to obtain work and in this regard Ms. Doherty gave evidence concerning the availability of work in Australia, London and Canada.
39. However, I am equally satisfied that it was perverse for the High Court judge to calculate the loss of earnings into the future on the basis which he did. There was no dispute but that the plaintiff would have qualified as a plumber. The conclusion of the trial judge that the plaintiff would have been confined to the minimum wage in the construction industry and would only have worked a 39 hour week was not supported by the evidence. The evidence was that the plaintiff was in the top ten per cent of the population in terms of his I.Q.. He had demonstrated, by reference to the work he had undertaken since the date of his accident, that he was a seriously industrious and capable young man. For the judge to have cast him into the lowest category of construction worker and consigned him to that role for life was in the teeth of the evidence. Why would the plaintiff not have moved up beyond minimum wage with experience and future training? Would he never have worked beyond 39 hours a week?
40. As to how to rectify the trial judge’s error, it cannot be done in the manner proposed by Mr Kiely as the judge rejected the evidence that favoured self-employment. The trial judge was entitled, in my view, to adopt a paid employment model for the purposes of calculating the plaintiff’s losses. Further, having adopted that approach, it is difficult to criticise the trial judge for adopting the minimum wage in the construction industry for the purpose of calculating the plaintiff’s first three years loss of earnings as at that time the plaintiff would have been quite in-experienced. Thus the figure of €84,300 in respect of that period should stand. Insofar as his calculation of the plaintiff’s losses commencing three years post accident, I would propose uplifting the differential of €122 per week which was selected by the trial judge and would replace it with €165 net to allow for the fact that the plaintiff would as his career advanced move somewhat beyond the minimum wage in the construction industry. Using this differential and applying it to the multiplier used by the trial judge i.e. €1191 gives a value of €196,515 to the plaintiff’s claim for future loss of earnings commencing three years post trial. Thus, I would propose an award of €280,815 (€84,300 + € 195,515) to replace the sum of €229,602 awarded by the trial judge.
41. The trial judge applied a discount of close to 25% to allow for the factors in Reddy v. Bates and that would appear to be appropriate. Accordingly, applying a 25% reduction to the figure of €280,815 the plaintiff’s total future loss of earnings would come to €210,611. Accordingly, I would propose that this sum is substituted for the sum of €170,000 which was allowed by the High Court judge.
42. Having regard to the aforementioned findings the total award before any consideration of contributory negligence should be as follows:-
• General damages to date: €100,000
• General damages into the future : €175,000
• Loss of earnings to date: € 84,800
• Loss of earnings into the future: €210,611
• Future costs associated with the prosthesis: €170,000
• Other agreed special damages: € 12,498
€752,909
Liability/contributory negligence
43. Mr. Kiely, submits that the trial judge, in apportioning 66.66% of liability to the plaintiff erred in his application of the relevant principles having regard to the evidence. In particular he submitted that fault, in the context of contributory negligence, has to be equated to blameworthiness and not to the potency of the causative factors moving from the respective parties. He relied in particular on the decision of Walsh J. in O’Sullivan v. Dwyer [1971] IR 275 where at p. 286 he stated as follows:-
“Degrees of fault between the parties are not to be apportioned on the basis of relative causative potency of their respective causative contributions to the damages …. Fault or blame is to be managed against the standard of conduct required of the ordinary reasonable man in the class or category to which the party whose part is to be measured belongs.”
44. Relying upon this statement, Mr. Kiely submits that the trial judge’s finding that the defendants were blameworthy to a lesser degree than the plaintiff was perverse.
45. In order to assess the validity of that submission it is necessary to rehearse the findings of fact made by the trial judge insofar as the same bind this court in line with the principles advised in Hay v. O’Grady. These are well known and I do not intend to repeat them in the course of this judgment.
46. The following findings were made by the trial judge:-
(i) The plaintiff probably had seen and considered the programme for the Galway International Rally for February 2005. The location of the plaintiff’s accident was not mentioned in the safety plan nor designated an area of special risk.
(ii) The programme contained a ‘spectator safety’ warning sheet which included drawings of acute bends, a fork in the road, junctions and other features which might pose a hazard to spectators. These diagrams included, at the bottom right hand corner an image of a “crest jump”.
(iii) The plaintiff had attended a number of motor rallies with his father as a child. The event in question was the third he had attended as an adult. He was somewhat familiar with the procedures at a motor rally and would have had a general appreciation of the risks and dangers associated with such an event.
(iv) The plaintiff and his friends spent approximately 20 minutes at location 1. There was a marshal at this location.
(v) As the plaintiff and his friends made their way to location 2, where the accident took place, they would have been temporarily out of the view of the marshal for part of the journey, because of the contour of the land, but otherwise would have been visible to him as they made their way to the crest.
(vi) When they reached their ultimate destination the plaintiff sat down on a rock in a drain approximately 50 metres beyond the crest. The plaintiff was 2.5 metres from the edge of the road.
(vii) There was no tape, markers, barriers or any other warning signs at location 2 to advise spectators that they should not be there or needed to take any particular care for their safety.
(viii) The plaintiff and his friends were not alerted in any way to the fact that they should not have been viewing the event from location 2.
(ix) The area should have been cordoned off or marked as it was an obvious place of danger, as per Mr. O’Keeffe’s evidence.
(x) The plaintiff, when seated, would not have been visible to the marshal at location 1.
(xi) The plaintiff’s reaction time was impaired by the fact that he was sitting down.
47. In terms of the negligence on the part of the organisers of this rally, the trial judge in apportioning liability found them negligent in:-
(i) failing to identify location 2 as a hazard,
(ii) in failing to identify location 2 as a prohibited area,
(iii) in failing to give any warnings to persons attending the event to stay away from location 2, and
(iv) in failing to properly supervise this dangerous area.
48. When it came to his consideration of the plaintiff’s own culpability, three factors were emphasised by the trial judge. First, he concluded that common sense would suggest to anyone attending an event such as this that they should not position themselves close to the road just beyond a “blind crest”. The crest constituted a danger that should have been obvious to the plaintiff in circumstances where he had earlier seen cars going over that crest with all four wheels in the air. Thus, regardless of the conclusions he had reached in respect of the defendants’ negligence, when dealing with the issue of contributory negligence he concluded that the plaintiff should not have needed a warning from a marshal or any other official to warn him of the potential danger of locating himself where he did. Second, he had the benefit of the programme for the event which contained the safety statement. Third, by sitting down, the trial judge concluded that the plaintiff had allowed himself less time to react in an emergency than he would have had had he remained standing.
49. For my part, I agree wholeheartedly with the trial judge in his conclusion that those who attend motor rallies must take reasonable care for their own safety. Spectators ought to know that competitors will be driving at speeds on narrow country roads negotiating junctions, bends and crests of hills where the skill of the driver will be severely tested. They must, I believe, be vigilant and must comply with all such guidance and instructions as they may receive or encounter concerning their own safety. I also agree with the trial judge that those who are responsible for organising events of this nature know that spectators are likely to gather in places where drivers will be tested to their full capability and that they need to have an effective safety plan in place to ensure that spectators will be safe lest drivers lose control of their vehicles under such conditions.
50. It is not disputed that contributory negligence should be assessed in the manner advised by Walsh J. in O’Sullivan v. Dwyer and that an appellate court should only interfere with an apportionment of fault where it is satisfied that the trial judge has made a gross error in making that apportionment.
Conclusions
51. In reviewing the conclusions of the High Court judge it is necessary to firstly consider the class or category to which the plaintiff and the first, second and third named defendants belong. Simply stated, the plaintiff was a young amateur and a relatively new motocross enthusiast. He was not, however, a complete novice. The defendants, on the other hand, were experienced professionals involved in motocross on a national and international basis. They are well versed in the management of events such as that which was taking place on the date of the plaintiff’s injuries. They are the parties with the expertise to know where spectators are likely to be at risk. This, after all, is why the third named defendant was involved with the rally. While the promoters and organisers of sporting events ought not to be considered to be the insurers of the welfare of spectators, they must seek to protect them from dangers of which they are aware, or ought to be aware.
52. In this regard, the trial judge was satisfied that the area in question (location 2) was one which was dangerous, needed to be identified and spectators kept at a distance. To default from these obligations in circumstances where it was foreseeable that a car might leave the roadway with the result that a spectator might be badly injured or even killed, is to act in an manner which is blameworthy indeed. This, of course, was not their intention and it was very clear from the evidence that the defendants each took their obligations in terms of health and safety very seriously. They would appear to have planned this event carefully.
53. When compared to the knowledge, experience and expertise of the defendants, the plaintiff’s knowledge and experience of the risks to which he was exposed pale significantly. Yes, he had attended a couple of car rallies as a child with his father and as an adult had previously attended two other motor rallies. Thus, while it has to be accepted that he had some experience of what happens at a motor rally and how he might potentially put himself at risk, he can hardly be described as somebody who did not need to be warned about areas which the court concluded were hazardous and which ought to have been identified and supervised.
54. It is reasonable nonetheless to conclude that in circumstances where the plaintiff had noted the tyres of cars leaving the roadway at the crest of the hill, he should probably have anticipated the possibility of danger regardless of any warning and should have positioned himself further back from the road to take sure that he would not be within striking distance of a car, should it lose control. However, his blameworthiness for failing to do so cannot be equated to the failure of the defendants to identify this hazardous area for the purposes of ensuring that spectators did not gather at that point. In addition, there was no evidence to suggest that the plaintiff was somebody who would have failed to heed any warning that he might have been given either by a marshal or by way of signage indicating that he should not stand at any particular location.
55. Insofar as the plaintiff was to be assessed as being blameworthy by reference to the fact that he had purchased a programme which contained a safety sheet outlining the risks of standing near the crest of a hill, I would observe the following concerning the programme. First, it runs to approximately one hundred pages. Second, inclusion of a safety sheet is not obvious. It is to be found approximately twenty pages into the programme amidst pages of advertising and motor related articles. Third, while the safety sheet does indeed advise those attending the event that motor sport is dangerous this, however, is what it says at para 2:-
“However, we take our task responsibly, and have put in place a team of training marshals and their assistants to guide you in relation to places where it is considered unsafe for you to be.”
As we know, the plaintiff was not guided or warned not to stand at ‘location 2’, an area which the trial judge concluded was hazardous. Fourth, while there is a diagram which depicts a flat image of a crest or jump it gives no guidance to the reader as to how far away from the roadway or the crest they would have to stay to avoid any potential risk.
56. It is true to say that on a thorough reading of the programme, the plaintiff would have seen the safety statement. If he did, having regard to what is referred to in the last preceding paragraph; it would not have been blindingly obvious to him that he shouldn’t have been standing where he was when he was struck. He might have considered that it was safe to be there because he hadn’t been advised to the contrary by the trained marshals and assistants who, according to the safety sheet were to be deployed to advise spectators where it was considered unsafe to go. Of course it is possible that he might, if he had studied the diagram, have taken the view that location 2 was an unsafe place to be. However, there was no evidence to the effect that it was obvious from the diagram that for the plaintiff to have positioned himself more than 50 metres from the crest of the hill was likely to put him at risk.
57. Regardless of what is contained in this safety statement, I am quite satisfied that by far the greater degree of responsibility in terms of the plaintiff’s safety rested with the experts i.e. the first second and third named defendants, and the inclusion of this one sheet in the brochure which contains information that was lacking in clarity and was contradictory in respect to the safety of the location which the plaintiff adopted cannot afford the defendant much comfort in terms of it’s blameworthiness for what occurred on the day of the plaintiff’s accident.
58. The final matter which weighed against the plaintiff in terms of the trial judge’s assessment of contributory negligence was his finding that the plaintiff, by sitting on the rock in question, had put himself at particular risk insofar as he had given himself less time to react to an emergency than if he had been standing up.
59. In relation to his finding I accept the submissions made on the plaintiff’s behalf that this was a finding which the trial judge was not entitled to take into account when it came to the apportionment of liability. The uncontested evidence from Mr. O’Keeffe was that regardless of whether the plaintiff had been standing up or sitting down he would not have been in a position to get out of the way of the oncoming car travelling at the speed and the manner in which it did. Average reaction time was one second and a car travelling at 60 miles per hour would travel the relevant distance in 2 seconds and at 75 miles per hour in 1.6 seconds. The plaintiff would not “have had a hope” of getting out of the position in the timeframe concerned.
60. For the aforementioned reasons I believe that the apportionment of liability by the trial judge was indeed perverse. Of course I use that word in the legal sense only. For the reasons I have earlier outlined, I would apportion liability as to 75% against the first, second and third named defendants and 25% as against the plaintiff.
61. Accordingly, I would set aside the order of the High Court and in its place I would make an award of €564,682 (€752,909- €188,227).
Spes v Windcanton Ireland Ltd
[2016] IEHC 194, Barr J
JUDGMENT of Mr. Justice Barr delivered on the 16th day of March, 2016
Introduction
1. At all material times, the plaintiff was employed by the defendant in the chill area of the defendant’s distribution centre at Unit 16, Northwest Business Park, Blanchardstown, Dublin 15. This was a distribution centre for the Superquinn chain of supermarkets. Goods would be delivered to this distribution centre by various suppliers. The goods were delivered on pallets. The plaintiff was employed as a “picker”, which involved lifting goods from the pallets and placing them on trolleys known as “combi cages”. These cages were then marked for onward transport to various Superquinn supermarkets. Sometimes, when goods were going to be delivered to the supermarket on a pallet, rather than in a cage, the plaintiff would move the goods from the pallet on which they had been delivered to other pallets.
2. On 29th October, 2012, while the plaintiff was engaged in lifting trays of yogurt from a pallet to a cage, he was caused to suffer an injury to his back in the following circumstances: the last five trays of yogurt were remaining on the pallet, the plaintiff walked over to the pallet and squatted down on his hunkers, he pulled the trays of yogurt towards him and then lifted the five trays. When he was turning to place the trays into the combi, which was approximately one meter away, he experienced a sharp pain in his back. When the pain did not subside, he told his supervisor that he had injured his back and he was allowed to go home early.
3. It is the plaintiff’s case that the injury to his back was caused due to the negligence and breach of duty, including breach of statutory duty, on the part of the defendant. In particular, he states that the defendant was negligent in the following ways:-
a) While he maintains that he was trained how to lift items from the floor, he was never trained as to the correct technique when twisting or turning while carrying a heavy load;
(b) He alleges that the defendant imposed an unreasonably high “pick rate” of 1200 picks per seven and a half hour shift; and
(c) He was required to carry out an unreasonable amount of work in relation to lifting heavy items, rather than being rotated between heavy and light items.
4. It is the plaintiff’s case that as a result of these factors, his back was weakened over the years that he worked with the defendant, such that he suffered the acute injury which he did on 29th October, 2012.
5. The defendant denies that it was negligent or in breach of duty. In particular, the defendant states that the plaintiff received training in safe manual handling techniques when he first joined the company. There were also a number of refresher courses given to the plaintiff during his employment with the defendant. The defendant has exhibited a number of records in this regard. Secondly, the defendant states that the pick rate of 1200, was not an unreasonable rate to set in all the circumstances. Finally, they deny that the plaintiff was treated, in any way, unfairly in relation to the allocation of heavy duties. The defendant also alleges that the plaintiff was guilty of contributory negligence, in particular, failing to comply with the manual handling training, which had been given to the plaintiff on the commencement of his employment with the defendant and on refresher courses on various dates thereafter. Finally, the defendant denies that the plaintiff has suffered the alleged or any injuries or has incurred the losses claimed by way of special damages.
The Liability Issues
Evidence of the plaintiff, Mr Slavomir Spes
6. The plaintiff is a Slovakian national and was born on 28th June, 1968. He came to Ireland in August 2004 and commenced working with the defendant at its distribution centre in Blanchardstown in February 2005. The plaintiff stated that at the commencement of his employment with the defendant company, he was given training in manual handling. He stated that this was very elementary training in safe manual handling techniques. The instructor gave a demonstration of the safe method of lifting items from the floor, by lifting an empty box which measured some 30 x 30cm from the floor onto a table. He then lifted the box from the table and placed it back on the floor. The lifting technique taught was that operatives should squat down on their hunkers and with the box fairly close to the body, they should lift while keeping their back straight at all times. The plaintiff stated that when the trainer had given his demonstration, each of the employees had to lift the cardboard box from the floor onto the table and vice versa. The plaintiff stated that he might have signed some documents either on the day of the training, or in the office on the following day.
7. He stated that there may have been a questionnaire issued at the end of the training. However, due to his limited English, he did not understand all the questions asked. When he was unable to understand the question, he simply looked at what a fellow employee had written on his questionnaire and he did likewise. While a number of training documents were put in evidence during the course of the trial, there were no documents concerning any training given to the plaintiff in 2005.
8. The plaintiff stated that when he received the training, there were approximately six or seven people in the group. The training was given by Mr. Geoffrey Fitzsimmons and Mr. Tommy Moran. The plaintiff was adamant that this training only concerned the correct method to lift a box from the floor onto a table and how to lift the box from the table and place it on the floor. The plaintiff stated that he was not shown any techniques for safe turning while carrying a load. The plaintiff was challenged about this in cross examination, but he remained adamant that he had never received any training in relation to turning, nor as to the risks involved in twisting his trunk, without moving his feet.
9. The plaintiff further stated that he was required to work under considerable pressure in the distribution centre. The distribution centre supplied 24 Superquinn stores. Within the chill area, there were eight “banks” with each bank consisting of an array of 24 combis, one for each of the stores. Three of the banks catered for fruit and vegetables. The other banks catered for dairy, potatoes, juices, chicken and bacon and finally deli products. A member of the warehouse staff was assigned to a particular bank for the day. If a particular product was fully distributed earlier in the day, a team might be broken up and assigned to other banks. Each bank was U-shaped and it was the practice to bring a pallet of goods to the bank where the team distributed the product to the combis in the bank.
10. The plaintiff stated that he normally worked an eight hour day, five days a week. He was required to work at a rate of 1200 picks per shift. A tray of yogurts, would constitute one pick. If an operative lifted five trays at a time, and placed them onto a combi, this would constitute five picks. There was a two part sticker or tag on each of the trays. When the operative had lifted the trays from the pallet and placed them on the combi, the operative would tear off portion of each of the five tags and, at the end of the day, place them in a sheet, which would be handed up to the team leader. In this way, the defendant was able to ensure that each operative made at least 1200 picks in the course of the day.
11. It was not always the case that product was taken from a pallet and placed onto a combi. Sometimes the produce would be taken from one pallet and placed onto another pallet. This did not affect the number of picks that would be involved in removing the goods from one pallet to the other. A third alternative was that the goods would remain on the pallet and the picker would tear off the second part of the tag and leave the produce on the pallet. This would happen if, for example, a particular supermarket was to get a delivery of a full pallet load of potatoes. Thus, in these circumstances, a picker would get a number of picks, without having to lift any items at all.
12. The plaintiff accepted that he had been told in training that he should only lift the number of the items which he felt comfortable with. Thus, it was put to him that on the day of the accident, he could have decided to lift only three trays of yogurts instead of five trays. The plaintiff accepted that he was free to choose the number of items that he would lift at one go, but stated that they were under considerable pressure to achieve their target of 1200 picks per day. He stated that if he only lifted one item at a time, a team leader would give out to him for not achieving enough picks. The plaintiff stated that if he did not achieve the target number of picks in a day, he would be called into the office and warned about his failure to achieve the target. If he continued to fall down in this area, he would be threatened with being laid off.
13. The plaintiff stated that he had to work under considerable pressure in the distribution centre. He stated that he and other workers found it very difficult to achieve their target pick rate. He stated that he complained to the team leaders, Mr. Geoff Fitzsimmons and Mr. David Kennedy in relation to the pressure that they were required to work under. He stated that on occasions, the work area would be very cluttered with pallets and combis, such that it was difficult for them to adopt safe lifting techniques, when working under pressure in such confined spaces. The plaintiff stated that his complaints were not heeded by the team leaders. Indeed, he stated that if he made complaints, he was often assigned to even more onerous work.
14. The plaintiff also stated that he and some of the other foreign workers were treated unfairly, in that they were unfairly rostered to do heavy duties on a regular basis. He accepted that on occasions, he was rotated between heavy and light duties, but stated that sometimes he would be allocated to do heavier duties, three days in a row. Alternatively, if there was only a small amount of work to be done in the chill area, he would often be sent to work in the ambient area, if it was busier. In this way, he asserted that he and some of his fellow employees were treated unfairly and given an undue amount of heavy work.
15. The plaintiff further stated that in assigning him to a large amount of heavy duties, the defendant failed to take into account that he had suffered two previous back injuries. In 2009, the plaintiff had suffered an injury to his back when he was hit by a pallet truck driven by a fellow employee. He stated that he did a report of this incident for his team leader. There was no claim made in respect of that accident. The plaintiff had obtained a sick cert from his GP. He was out of work for one week. He then returned to doing the same duties as he had done prior to the accident. He had a second incident of back pain in May 2011, when there had been a very busy week at work and the plaintiff suffered back pain at the end of the week. He attended with his GP and got a sick cert for one week or ten days. When he returned to work, he did the same work as he had done prior to going out sick.
16. In relation to the circumstances of the accident which occurred on 29th October, 2012, the plaintiff said that he was working in the dairy area on the day in question. He was lifting trays of yogurt from a pallet and putting them onto combis. When he reached the last number of trays on the pallet, he pulled five trays over to the side of the pallet and squatted down on his hunkers. He then gripped the five trays and stood up, keeping his back straight. As he turned to place the trays onto the combi, he felt a severe pain in his back. He managed to place the trays on the combi. When the pain did not subside, he went to his team leader, Ms. Sharon Waters and told her that he had injured his back and asked for permission to go home early. She said that he could go home early.
17. In the course of cross examination, a number of training records were put to the plaintiff. The defendant maintained that these records established clearly that the plaintiff received manual handling training in the course of his employment with the defendant and that such training had been supplemented from time to time by way of refresher training. It is necessary to go through these documents in some detail.
18. The first document was a document headed Employee Training Declaration dated 16th September, 2008. The course was stated to be “SHELA Briefing”. This document was signed by the plaintiff and also by a Mr. Bill McDermott, who apparently had given the briefing on 16th September, 2008. No evidence was called as to the meaning of the words “SHELA Briefing”, nor as to the content of this briefing.
19. The next document in chronological order was a document headed Manual Handling Course dated 30th September, 2009. This document had the following paragraph under the heading (part of the print was missing from the copy handed into court):-
“This course involves the practice of manual handling techniques and some simple stretching exercises. If you are receiving medical attention or for some other reason (i.e. pregnancy, back ache or medical conditions) do not feel fit to participate, please consult your trainer at the beginning of the course. Otherwise please [sign] your name confirming your willingness to participate. If at any time during the course you experience any back pain or other physical problems, you must inform the trainer immediately.”
20. This document was signed by the plaintiff. A few lines beneath his signature was an acknowledgment that he had received the pocket hand guide. In evidence, the plaintiff stated that he did recall receiving a small booklet at some stage. He stated that his English was not very good at that time and he did not understand all of the material in the book; however, he was able to follow the instructions therein as there were diagrams showing correct lifting techniques.
21. The next documentation was a series of documents dated 3rd February, 2011. The first of these was an Employee Training Declaration in respect of manual handling. Beneath the box indicating that the activity was manual handling, the following declarations appeared:-
(1) I have been shown, trained and understand the safe system of work procedures for the above task/activity.
(2) I agree to follow the safe system of work documented at all times.
(3) I have been made aware and understand the risks associated with this task and the consequences if this SSOW is not adhered to.
22. This document was signed by the plaintiff. Also on the same sheet was a Trainer Declaration, which stated that the trainer had trained the particular person in the procedures as laid out in the safe systems of work. It further stated that the trainer was satisfied that the person had shown competency in the task/activity/equipment by way of verbal questioning. There was also a trainer sign off sheet which indicated that the activity was manual handling and the trainer was Mr. Geoffrey Fitzsimmons, who signed the sheet and dated it.
23. The third document dated 3rd February, 2011, was an Employee Training Declaration in respect of general operating of MHE. There was the usual declaration that the worker had been shown, trained and understood the safe system of work in respect of the designated activity. This document was signed and dated by the plaintiff.
24. The plaintiff stated that he did recall getting some training from Mr. Fitzsimmons. He stated that the training was just in the form of a question and answer session. The team leader would ask the questions and then fill in the form. The plaintiff stated that on occasions he was approached by a team leader while he was working on the warehouse floor and was asked whether he knew how to lift safely, or some other question, and he would just answer that he did know the correct techniques. The team leader would then just tick the requisite box and ask the plaintiff to sign the form.
25. The next document was a form headed “Safe System of Work”, dated 7th September, 2011. This was stated to be the review date in respect of original instruction given on 14th November, 2008. It concerned using a pump up pallet truck. There was no indication on this document that it had been furnished to the plaintiff. The only reference that could refer to the plaintiff was the reference at the top being the safe system of work reference No. “PT09”. The plaintiff was not cross examined in relation to the content of this document.
26. The next document was part of a series of documents all dated 2nd November, 2011. The first of these was a form headed Employee Training Declaration in respect of the activity designated as: using pump up pallet truck. Again, there was the usual declaration that the plaintiff had been shown, trained and understood the safe system of work procedures of the above task and activity. He agreed to follow the safe system of work documented at all times. He stated that he had been made aware and understood the risks associated with the task and the consequences if the safe system of work was not adhered to. The document was signed by the plaintiff. In the Trainer Declaration portion of the form, the box marked verbal questioning was ticked. In evidence, the plaintiff did not recall being shown how to use a pumped up pallet truck. However, he knew how to operate one from his pervious work experience. He accepted that the document showed that the team leader did a question and answer session with him on the warehouse floor and that he then signed the document.
27. The next document was another Employee Training Declaration this time in respect of the activity of “Picking 25kg bags of bakery”. It had the usual declaration and was signed by the plaintiff. The Trainer Declaration indicated that the training had been given by means of verbal questioning. In evidence, the plaintiff stated that he was simply asked if he knew how to lift bags weighing 25kg. He was asked did he have any experience of lifting such bags and he said that he did. He stated that nobody explained to him how to lift such bags. He just signed the form.
28. The third document dated 2nd November, 2011, was another Employee Training Declaration, this time in respect of “changing order picker battery”. It had the same declarations as in other forms and was signed by the plaintiff. The Trainer Declaration part was ticked in the box marked verbal questioning. The plaintiff stated that he did sign this form, as he had received some training in how to change the picker battery.
29. The final form dated 2nd November, 2011, was another Employee Training Declaration, this time in respect of the activity of “low level order picking”. It had the usual declarations and was signed by the plaintiff. The Trainer Declaration portion was ticked in the box marked verbal questioning. In evidence, the plaintiff stated that he just signed this form without receiving any training. He stated that nobody showed him how to do low level order picking. He accepted that he had been asked some questions by the team leader.
30. The next document was in respect of refresher training in manual handling which appeared to have been given on 15th November, 2011, and was a review of training which had originally been given on 20th November, 2008. The document stated that a description of the activity/task was “any task requiring lifting, carrying, pushing, pulling, including with the use of MH aid”. The risks identified from the risk assessment were stated to be “injury caused by incorrect handling techniques”. This document was not signed by the plaintiff and he was not cross examined on it.
31. The final documents were two documents dated 18th January, 2012. The first of these was an Employee Training Declaration in respect of the activity of “manual handling”. It contained the usual declarations and was signed by the plaintiff. The Trainer Declaration portion indicated that the operative had shown competency in the particular task/activity by way of practical demonstration, verbal questioning, theory test and other, although what the “other” was, was not indicated on the form.
32. The final document was another Employee Training Declaration in respect of manual handling. It contained a declaration that the operative had attended and understood the contents of the manual handling course, had been shown a video titled “your back at work by IBEC” and had been shown a video titled “Role Cage Safety”. All the boxes for these three declarations were ticked. The name of the trainee was put in in print as the plaintiff’s name. However, it was not signed by him. The Trainer Declaration portion indicated that the operative had shown competency in the activity by way of practical demonstration, verbal questioning and theory test. The three boxes in respect of these activities were all ticked. The Trainer Declaration was signed by Bill McDermott and dated 18th January, 2012.
33. In his evidence, the plaintiff stated that he recalled receiving some training from Mr. Moran and Mr. Fitzsimmons; however, he did not know who Bill McDermott was. He accepted that he had received some refresher training in January 2012. He accepted that his English was reasonably good by that time and that he could understand the normal things about his work. He accepted that he attended and understood the manual handling training in 2012, but stated that it did not deal with turning or twisting. He reiterated that he had never been taught any techniques for turning. He stated that he did not see the videos entitled “Your Back at Work” or “Role Cage Safety”. He stated that he had been shown one video, but that was eight years ago. He stated that in the second manual handling document dated 18th January, 2012, the one signed by Mr. McDermott, that was not his writing on that form and he did not fill it in.
34. In relation to the issue of the plaintiff being required to work under considerable pressure, it was common case between the parties that the pick rate had been increased from 1100 to 1200 in 2010. Ms. Waters stated that this increase was due to the fact that there had been a change of work system introduced into the warehouse, whereby the distance which an operative had to travel between a pallet and the combi, which he was working on at the time, was reduced. In such circumstances, it was alleged that the operatives were not being put under additional pressure in having to achieve the higher target of pick rates.
Evidence of Mr. Marian Grecko
35. Evidence was also given on behalf of the plaintiff by Mr. Marian Grecko, who had worked at the distribution centre from 2007 until its closure in 2014. He accepted that at the commencement of his employment with the defendant, he received training in manual handling, hygiene and was trained in the use of the cherry picker. In respect of the manual handling training, he was shown how to lift items correctly. He was shown how to lift an object from the floor to a table. In the demonstration, the trainers used an empty cardboard box.
36. Mr. Grecko stated that he was not shown any video in the course of the manual handling training. He was shown a video on hygiene.
37. In cross examination, the witness stated that he was shown how to lift an item from the floor, when he started with the company in 2007. He subsequently did a refresher course, where he was shown correct manual handling techniques again. He accepted that he understood the demonstrations which were given to him. He also understood what was involved in lifting correctly. However, he was very clear in his recollection that the manual handling training only concerned how to lift an item from the floor onto a table and vice versa. He stated that there was no training in relation to turning correctly or how to avoid twisting the body. He was adamant that the trainer did not show them how to turn correctly.
38. Mr. Grecko stated that on occasions he would have to turn or twist his body when the cages were very close to each other. When there was not much space between the pallet and the cages, he would have difficulty turning. However, he accepted that on the day of the accident, the space available to them was not too confined. He said that it was a busy day, but the pressure of work was normal.
39. Mr. Grecko accepted that he was trained just to lift whatever amount he was comfortable with. It was his choice as to how many trays he would lift at a time. However, he stated that if he only lifted one tray, he would be reprimanded by the supervisor. He accepted that they were working on the “light dairy” section, on the day in question. He stated that he would normally lift three trays of yogurt at a time. However, sometimes he would lift up to six trays. He stated that they were under pressure to work fast. There were several operatives doing the picking that day.
40. It was put to Mr. Grecko that there was a system for rotating the operatives between light and heavy duties. The witness did not agree that such system worked. He stated that if he had been lifting heavy items, such as fruit juices, he may be sent to another heavy area. He stated that while in general, the team leaders did rotate the heavy and light jobs, sometimes he would do three difficult days in a row.
41. Mr. Grecko accepted that some picks would only involve taking the docket from the items on the pallet, because those items were going to remain on the pallet. However, he stated that this happened very rarely.
42. In re-examination, the witness stated that they were trained only to lift what they were comfortable with. However, he stated that on occasion he would lift more items than he was comfortable with, due to the pressure to reach the target number of picks.
43. Mr. Grecko recalled the day when the plaintiff got injured. He had been working in the same area as the plaintiff and was working beside him. He was lifting yogurts but from a different pallet. He saw the plaintiff lift the trays of yogurts and put them onto the combi. Just after that the plaintiff was holding his back and he seemed to be in pain. The plaintiff left the area and went to the toilet. At lunchtime, the plaintiff told him that he had hurt his back. The plaintiff then spoke to Sharon Waters and was allowed home early.
Evidence of Mr. Alan Conlan, Consulting Engineer
44. Evidence was given by Mr. Alan Conlan, Consulting Engineer, on behalf of the plaintiff. He had attended at the defendant’s former premises for the purpose of a joint inspection on 18th September, 2015. At that time, the premises were being used by Musgraves. They allowed the plaintiff and the two consulting engineers and an interpreter to have access to the premises for the purpose of carrying out the joint inspection.
45. Mr. Conlan noted that if the plaintiff lifted five trays of yogurt, this would have weighed 16kg. If he had lifted six trays of yogurt, this would have weighed 19.2kg.
46. Mr. Conlan stated that in 1992, the authorities in the UK had issued guideline weights which could be lifted by operatives in the course of their work. The area in front of the operative’s body was divided into a number of zones. If in carrying out any lifting or lowering task, the hands should enter any zone, then the zone with the lowest weight should be considered the guideline weight for that task. The maximum guideline weight between knuckle and elbow height close to the body, is 25kg. This reduces as one moves the load closer to the ground, or further up from waist height and further away from the body. Close to ground level, close to the body, the guideline weight is 10kg. Guideline weights are not the maximum weight which can be lifted, however, lifting weights greater than the guideline weight has increased risk.
47. Guideline weights apply for 30 operations per hour. If the number of operations is once or twice per minute, the guideline figures should be reduced by 30%. If the operations are repeated five – eight times per minute, then the guideline figure should be reduced by 50%.
48. The risk was also increased if the operator twists/turns during the lifting process. If the handler twists to 45 degrees, the guideline figure should be reduced by 10%. If the handler twists through 90 degrees, the guideline should be reduced by 20%.
49. Mr. Conlan noted that the plaintiff had reported that the target pick rate in the chill area was around 1200 picks per shift, over a 7.5 hour period. Lifting five/six trays of yogurt would be considered as five/six picks. With a target of 1200 picks per shift, this would give a target of approximately 160 picks per hour. If the plaintiff was lifting heavy items, there might only be one pick per lift. However, if he was picking smaller or lighter items, the operative would be in a position to lift a number of items, thereby obtaining a number of picks per lift. Taking this into consideration, Mr. Conlan was of opinion that the guideline figures should be reduced by around 30%. This reduced the maximum guideline weight to 17.5kg. The guideline weight between the lower leg height and the ground close to the body would be reduced from 10kg to 7kg. Mr. Conlan stated that the lifting manoeuvre in this case was a complex manual handling activity as the plaintiff was lifting different products, from different heights and was lifting them to different levels. The guideline weights may also have to be reduced because there was a turning manoeuvre during the lifting operation. Mr. Conlan stated that there was particular risk where there was a turning component to the lifting action. If the operative is not trained to move his feet, this would increase the risk of back injury considerably.
50. Mr. Conlan came to the conclusion that there was considerable risk involved with this manual handling activity. The rate of work was a significant factor in relation to the risk. If the rate of work is too onerous, people will complain, or they will leave the job, or they will suffer injury. In this case, the plaintiff stated that he had made complaints to his team leaders about the pressure of work that was imposed upon him. Mr. Conlan noted that the pick rate had been increased from 1100 picks to 1200 picks per shift. This was an increase of almost 10%. In his opinion, increasing the target rate without assessing the workload on operatives was poor practice. He was of the view that the increase in the pick rate was a contributory factor in the plaintiff’s injury. If the target rate was set at a high level, people would be inclined to take shortcuts e.g. adopt incorrect lifting techniques, in an effort to achieve the targets. This can lead to injury to the operatives.
51. Mr. Conlan was further of the opinion that the plaintiff’s previous back injuries put him at additional risk of back injury. The employers were under a duty to take account of this fact when asking him to achieve a particular pick rate.
52. In relation to training, Mr. Conlan noted that the plaintiff had received some training in manual handling, when he first joined the company. Thereafter, there were periodic instances of refresher training. He accepted that this was good practice. However, he stated that in this case, there was a complex lifting operation involving lifting different products, from different heights and placing them at different heights in the cages; in such circumstances, the employee would need to be trained how to assess the task. Mr. Conlan stated that the training as described by the plaintiff was inadequate. Turning, without moving the feet, was very risky. The operative should be trained always to move their feet when carrying out a turning manoeuvre.
53. Mr. Conlan pointed out that there was a duty on the employer under s. 10 of the Safety, Health and Welfare and Work Act 2005, to ensure that the employee is provided with adequate training, in a language that he understands. Mr. Conlan pointed out that in some of the documents which had been put to the plaintiff, the trainer had just ticked the boxes, indicating that the refresher training had been given by means of a question and answer session. Mr. Conlan referred in this regard to the document dated 2nd November, 2011, headed “Employee Training Declaration” in respect of the activity of “Picking 25kg bags of bakery”. The plaintiff had stated in his evidence that he was only asked if he knew what to do when lifting a 25kg bag. He had said that he did know what was involved in lifting such an item. He had signed the declaration form. Mr. Conlan stated that this was not adequate refresher training. The operative should have been given a demonstration as to how to lift such items, then the operative should be asked to demonstrate the correct technique himself and this should be followed by a question and answer session.
54. The engineer pointed out that in the Risk Assessment document dated 28th March, 2008, under the heading manual handling risk – the task, it had been stated that the risk for repetitive handling was “trivial”. The witness stated that this was not correct. The operation was all about repetitive handling. It was a definite risk. The important thing was the technique used by the operative in carrying out such repetitive lifting tasks.
55. Mr. Conlan stated that there were a number of statutory duties which were imposed upon the defendant in the circumstances which arose in this case. In particular, s. 8(2) of the Safety, Health and Welfare at Work Act 2005 provided as follows:-
“(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;…
(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;…
(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;
(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3.”
56. Mr. Conlan also referred to the provisions of the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. 299/2007) and in particular to Regulation 69 thereof, which provides as follows:-
“An employer shall—
(a) take appropriate organisational measures, or use the appropriate means, in particular mechanical equipment, to avoid the need for the manual handling of loads by the employer’s employees,
(b) where the need for the manual handling of loads by the employer’s employees cannot be avoided, take appropriate organisational measures, use appropriate means or provide the employer’s employees with such means in order to reduce the risk involved in the manual handling of such loads, having regard to the risk factors specified in Schedule 3,
(c) wherever the need for manual handling of loads by the employer’s employees cannot be avoided, organise workstations in such a way as to make such handling as safe and healthy as possible, and—
(i) taking account of the risk factors for the manual handling of loads specified in Schedule 3, assess the health and safety conditions of the type of work involved and take appropriate measures to avoid or reduce the risk particularly of back injury, to the employer’s employees,
(ii) ensure that particularly sensitive risk groups of employees are protected against any dangers which specifically affect them in relation to the manual handling of loads and the individual risk factors, having regard to the risk factors set out in Schedule 3,
(iii) ensure that where tasks are entrusted to an employee, his or her capabilities in relation to safety and health are taken into account, including, in relation to the manual handling of loads by employees, the individual risk factors set out in Schedule 3, and
(iv) when carrying out health surveillance in relation to the manual handling of loads by employees, take account of the appropriate risk factors set out in Schedule 3.”
57. Schedule 3 of the Regulations deals with the risk factors for manual handling of loads. In sub paragraph 2 thereof, the following is provided:-
“A physical effort may present a risk particularly of back injury if it is:…only achieved by a twisting movement of the trunk…”
58. Paragraph 4 of Schedule 3 states:-
“The activity may present a risk particularly of back injury if it entails one or more of the following requirements: over-frequent or over prolonged physical effort involving in particular the spine… a rate of work imposed by a process which cannot be altered by the employee.”
59. Paragraph 5 of Schedule 3 provides:-
“Individual Risk Factors: The employee may be at risk if he or she:…does not have adequate or appropriate knowledge or training.”
60. Mr. Conlan was of the view that the defendant in requiring the plaintiff to work under considerable pressure, and in increasing the pick rate without assessing the workload on the operatives and in failing to train the plaintiff adequately, had acted in breach of the statutory duties outlined above.
The defendant’s case
Evidence of Ms. Sharon Waters
61. Evidence was given by Ms. Sharon Waters on behalf of the defendant. She had been employed with the defendant company since 2003. She started as a picker and remained in that position until 2007. She then became a team leader, where she was in charge of managing jobs on the depot floor. She stated that there was a daily team meeting held each morning, at which she would give out the various tasks to the team members for that day. The plaintiff was part of her team.
62. Ms. Waters outlined how the goods would arrive in on pallets and would be put into the yellow box areas, as shown in the engineer’s photographs. Pickers were assigned to a particular box or area. The pallets were close to the combi cages. There were ten female employees in the distribution centre. They did the same work as the male pickers. All employees were told just to lift whatever they could manage comfortably.
63. In relation to training, Ms. Waters stated that she had been shown how to lift safely. She was shown a video in relation to manual handling and was given a booklet. After that she had been retested, when she had to show that she could lift a box carefully. She was trained by Mr. McDermott and Mr. Gallagher.
64. In relation to the work duties, she stated that these were rotated among the workers in relation to heavy and light duties. She always rotated staff as often as she could. She stated that she was always fair about assigning people to the heavier work. There was overtime available, usually every second weekend. She stated that the plaintiff was always interested in doing overtime whenever he could.
65. Ms. Waters stated that she used to help with the picking. The target rate was raised in 2010, but she felt that it was not too onerous. She stated that if the plaintiff had been assigned to heavy items for two days in a row, he would ask to be moved. She would try to move him to light duties, or if this was not possible, she would try to send assistance to him.
66. In relation to the day of the accident, Ms. Waters said that she had been the team leader on duty that day. She recalled that on coming back from a break, the plaintiff approached her circa 12:00hrs. He said that his back was sore and he asked to go home. She stated that she asked the plaintiff whether he had injured it at work, to which he replied no, that he had injured it while changing a wheel on his car. She stated that she allowed him to go home early. As the plaintiff did not allege that it was an accident at work, she did not fill out any of the forms, or go through any of the relevant protocol, which would have to be adopted if there had been an accident at work.
67. Ms. Waters stated that the protocol referred to provided that if an accident had happened at work, the team leader would take the injured workman to the first aid room, where he would be attended to. She would then take a statement from him and then carry out an examination of the locus of the accident. She would also arrange for such further medical treatment as was necessary. Ms. Waters stated that she did not do this in relation to the plaintiff’s back complaint, as he did not allege that there had been any accident at work. She stated that she did not have any further discussion with the plaintiff about his back complaint. She just allowed him to go home early. Thereafter, he would have submitted a medical certificate to the HR department.
68. Ms. Waters stated that she was made redundant in the summer of 2014, when the company closed down. She was not aware that the plaintiff was making any case that he had been injured at work. In July 2014, she was contacted by Mr. David Condel, in relation to the matter, as she had been the team leader on duty on the day of the accident. She stated that on 11th July, 2014, she made the following brief statement to the company:-
“On 29th October, 2012, Salvormir Spes came to me asking to go home that he hurt his back. I asked Salvomir ‘did it happen in work’; he said ‘no it happened when he was putting the wheel back on his car’.”
69. Ms. Waters stated that she had had a good working relationship with the plaintiff. She stated that there was a good atmosphere on the warehouse floor. If people were slow in relation to a number of picks they did, they were called in to the office for “coaching” to improve their pick rate. She stated that she called the plaintiff in for such coaching on approximately three occasions in ten years.
70. Ms. Waters stated that there were three types of pick: (i) where goods were moved from one pallet to another pallet; (ii) where goods were moved from a pallet and placed in a combi cage; and (iii) where the items were left on a pallet, but were designated as “picks”. She stated that this third type of pick would apply where there was a full pallet of potatoes and if a supermarket needed a full pallet of potatoes, they would be left on the first pallet, but the operative would be able to get the number of picks that were applying to that pallet. She stated that this would happen approximately three times per week. She stated that the bags of potatoes were quite heavy and that the male employees would pick them. She sometimes lifted bags of potatoes, but no other female employees did so.
71. She stated that the plaintiff never complained to her in relation to the pick rate being too onerous. He might have complained if he had been doing heavy duties on the day before and, in such circumstances, she would try to rotate him as best she could.
72. In relation to the targets set, she thought that these were reasonable. She stated that she sometimes did up to 1600 picks per shift. She stated that the plaintiff did not report any earlier accident to her. She had heard his evidence that he had been hit with a pallet truck in 2009, but she was not aware of that; nor was she aware that he had had a back problem in 2011. She stated that he never told her of these problems and she was not aware that he had any history of back problems. She denied that the plaintiff had been singled out to do more heavy work than others. She stated that while she was in charge, the plaintiff would not have been allocated to heavy work over a number of days. She stated that if she had allocated the plaintiff to do heavy work one day, he might come to her and say that he had been assigned to that work yesterday when she was out. She would try to rotate him. She would not have been aware of the assignments for the previous day. In the circumstances, she accepted that it was possible that the plaintiff could have been assigned to heavy duties for two days in a row.
73. Ms. Waters stated that the increase in the pick rate had been brought about due to the fact that they changed the layout of the warehouse. Under the new system they had two rows of cages opposite each other. This had the effect of reducing the amount of walking involved. It was due to this fact that they decided to increase the pick rate. She thought that it was an achievable target.
74. Ms. Waters stated that she was not aware that the plaintiff had made any complaints to Jeff Fitzsimmons or David Kennedy. She stated that she was not present for the training which had been given to the plaintiff, so she could not say what training in manual handling he actually received. She stated that for refresher training, she had been shown a video, she had been given a booklet and she had to demonstrate how to lift a box. She stated that such training was usually four hours long. She stated that she was never asked to tick a box while out on the warehouse floor or in the office. She could not say whether if that had happened to the plaintiff.
75. In relation to the brief statement she had made on 11th July, 2014, she accepted that she had been asked to recall this brief conversation, almost two years after it had taken place.
Evidence of Mr. Cathal Maguire, Consulting Engineer
76. Finally, evidence was given by Mr. Cathal Maguire, Consulting Engineer, on behalf of the defendant. He stated that at the joint inspection held in September 2015, the plaintiff gave a demonstration of the lifting manoeuvre that he had done on the day of the accident. It was clear from this demonstration, that the plaintiff had been trained, because he had adopted a good lifting technique in the course of his determination.
77. Mr. Maguire noted that the plaintiff had complained in relation to the pace of the work. He noted that on the day of the accident, the plaintiff had been working in the “light dairy” section. In that section, he could lift several trays at one time. The target of 1200 picks a day, was normal for distribution warehouses. He stated that when the layout in the warehouse changed, such that the cages were moved closer to the pallets, it was appropriate to increase the pick rate. He noted that the workers had been told just to lift what they were comfortable with. This would vary from person to person. The plaintiff knew the weight of the trays, he had assessed the load and had carried out a number of previous lifts, prior to the one that caused him to suffer pain.
78. The plaintiff had accepted that he had received training when he started with the company and thereafter had been given refresher training, approximately every three years. Mr. Maguire stated that this was a reasonable training regime.
79. In relation to the guideline weights, Mr. Maguire noted that there were different weights for different heights and depending on closeness to the body of the item being lifted. At the bottom level, the guideline weight was 10kg. This could be to take account of tiredness during the day. So the guideline weight would be decreased to take account of increased risk. On the day of the accident, the accident occurred towards the beginning of the day after a couple of hours, so it was not necessary to factor in this reduction. A reduction of 30% in the guideline weight would only be appropriate when the lifting operation was being carried out over an entire day. If the plaintiff had lifted three trays, this would have been completely within the guidelines. At two hours into the shift, it would be reasonable for him to lift five trays; that was a decision for the picker himself.
80. The engineer noted that the plaintiff accepted that he had received some training, but stated that due to the fact that he was working under pressure, he was not able to adhere to good lifting techniques. He did not think this was an issue. The rate of 1200 picks per shift constituted a reasonable work rate. In his opinion, it was not undue pressure.
81. In cross examination, Mr. Maguire accepted that he had not been present at the time when the plaintiff received his training, so he could not say what actual training he had received. However, he understood from the documentation that had been produced, that the plaintiff had received adequate training in manual handling techniques. He noted that the plaintiff demonstrated a safe lifting technique, when he gave his demonstration at the joint engineering inspection. He was of opinion that the plaintiff hurt himself when he twisted, rather than turning, in the correct manner by moving the feet. Turning the feet was a basic part of a safe turning manoeuvre. The training should deal with turning rather than twisting. He noted that the plaintiff demonstrated safe turning technique, when he gave his demonstration at the joint inspection. He was of opinion that the plaintiff did not suffer his injury while doing the lifting part of the manoeuvre, but had suffered the injury while turning. This suggested that the plaintiff failed to turn his feet as he turned his body. A failure to turn correctly was a common cause of back injury.
82. Mr. Maguire stated that he had not spoken to Ms. Waters in advance of compiling his report. He had spoken to Mr. Condel, the health and safety manager. He was not aware that it was alleged that the plaintiff had said that he had hurt his back when changing the wheel of a car. That was never said to him. He was just aware that no accident at work had been reported. The joint engineering inspection had been carried out on 18th September, 2015 and his report was dated 28th September, 2015.
83. In relation to training, Mr. Maguire accepted that he could not state what training was actually given to the plaintiff. He accepted that in relation to some of the training documents, which had been produced to the plaintiff, there were some documents which suggested that it was just a box ticking exercise. In relation to the Employee Training Declaration dated 18th January, 2012, he accepted that the box at the bottom of the form, where the trainer was asked to give a narrative of the context of the training, had been left blank. This should have been filled in by the trainer. If this had been done, the court would know the extent of the training received.
84. In relation to the document dated 2nd November, 2011, concerning the task of “Picking 25kg bags of bakery”, the plaintiff had indicated that he was merely asked whether he knew how to lift a 25kg bag to which he had replied “Yes.” Mr. Maguire accepted that that would not constitute adequate refresher training. The person should be given a demonstration of the lifting technique. Mr. Maguire stated that he would be critical of this as a box ticking exercise.
85. Similarly, in relation to the Employee Training Declaration in respect of “Low level order picking” dated 2nd November, 2011, Mr. Maguire stated that he would likewise be critical of this document, where only a box indicating verbal questioning had been ticked by the trainer.
86. In relation to the Risk Assessment dated 28th March, 2012, some tasks were indicated to be “tolerable”, which would mean that it was a low risk activity. In relation to the heading marked “Repetitive Handling”, which was entered as being “trivial”, Mr. Maguire stated that there was repetitive handling in this case and therefore one could not say that the risk was not applicable. He thought that this may have been a risk assessment for a particular type of lift, being a 20kg load. On the following page, there was an entry reading “Risk level is dependent on capability of employee”, which was deemed to be “trivial”. Mr. Maguire was not able to interpret this portion of the document. He noted that under the heading “Risk to anyone untrained” it was deemed to be “substantial”. However, he did not think this was applicable to the plaintiff, as he had been trained in manual handling.
87. It was put to the witness that the plaintiff had stated that the only training he got in manual handling constituted a demonstration of lifting an empty box from the floor onto a table. Mr. Maguire said that this means of demonstrating a lifting technique was standard in the industry. It was put to him that the plaintiff had complained that he was not able to understand all the training due to his poor level of English. Mr. Maguire stated that he was not aware of that, but he accepted that it could be a problem for the plaintiff. He thought that the assistance of a work colleague, who did speak his language, would have been helpful.
88. It was put to Mr. Maguire that the plaintiff had stated that he could not adopt correct lifting techniques, due to the excessive pick rate which he was working under, the witness did not accept this. He stated that a pick rate of 1200 was not excessive. It was a standard pick rate, when the items are located close to each other. It was put to him that the plaintiff had said that the trainers knew that workers could not do that level of target, while adopting correct lifting techniques and that they had laughed when this was suggested to them. Mr. Maguire stated that he would be surprised if that had happened. In relation to not understanding the questionnaire that may have been given to him, Mr. Maguire stated that the plaintiff was an adult and that if he did not understand the questionnaire, he should have told his supervisor that he did not understand it. However, Mr. Maguire stated that he could not comment on the training given. He accepted that the records of the training could be more complete.
89. Mr. Maguire did not accept that if the plaintiff was working under pressure, this would lead to him taking shortcuts in the lifting manoeuvre. He stated that if the plaintiff had been under pressure, he should have complained to a team leader. It was put to him that the plaintiff had said that he had made complaints to his team leaders. Mr. Maguire stated that Ms. Waters said that he did not complain to her about the pick rate and this was because the pick rate was an industry average. It was not excessive. He did not accept that the plaintiff was working under pressure given the target rate and the weight of the items being lifted.
90. In relation to the plaintiff’s previous back problems in 2008 and 2011, Mr. Maguire pointed out that when an employee is out sick, he can only return to work when he is certified by his doctor as being fit to return to work. So this would not be a problem a year later in 2012.
91. Mr. Maguire stated that there should never be a twisting movement, but there could be turning, which would involve changing direction by moving the feet. If the operative was doing manual handling in a relatively open space, there should be no twisting at all. He accepted that there was an increase in risk if an operative was twisting; it was for this reason that people were told not to twist, if it could be avoided.
92. Mr. Maguire reiterated that during the joint engineering inspection, the plaintiff had demonstrated correct lifting techniques. It was for this reason he drew the inference that the plaintiff had received adequate training in manual handling. He accepted that under s. 10 of the 2005 Act, there was a duty on the employer to provide training in a language that the operative could understand. However, Mr. Maguire stated that if the plaintiff got refresher training, at a later time when his English had improved, this would cover any defect in the initial training. He did not think that there was any necessity to give additional training when the pick rate was increased. He accepted that under the 2007 Regulations, there was an onus on the employer to take account of the fact that the plaintiff had a previous back injury. In this regard, the employee could not return to work, until he had been certified as fit to do so by his doctor. There was then a duty on the employer to monitor him for a short while after he returned to work. The employer would not need to continue monitoring the employee if he had returned to work more than a year previously.
93. Mr. Maguire accepted that under the provisions of Schedule 3 to the Regulations, if the work was strenuous and involved twisting of the trunk, this would increase the risk of injury to the operative. However, he stated that if the load was too heavy, that was a matter entirely for the plaintiff, as he could select the amount of goods that he would lift at any one time. If he needed to turn as part of the manoeuvre, he should have moved his feet. Mr. Maguire stated that he accepted the points set out at item 4 of Schedule 3, relating to the rate of work imposed on an employee. However, he said that the rate of work which was imposed in this case was reasonable.
94. Finally, in the course of re-examination, Mr. Maguire pointed out that the plaintiff did not complain of inadequate training at the joint engineering inspection. His complaint was that he was put working with the heavy items too frequently and that the pick rate was too high, so that he had to abandon his training in respect of manual handling. The plaintiff complained that he had been treated differently to the other workers in relation to the items that he had to lift and that there was an excessive pick rate.
Conclusions on Liability
95. The central issue in this case is as to whether the plaintiff received adequate training from his employer. Mr. Conlan, the plaintiff’s engineer, has stated that in his opinion, if the plaintiff only received the training as described by him and Mr. Grecko, such training was deficient, as it did not cover how to turn safely while carrying a load.
96. Mr. Maguire, the defendant’s engineer, has stated that in his opinion, the accident was probably caused by the plaintiff failing to move his feet in the course of turning from the pallet, while holding five trays of yogurt. Mr. Maguire stated that the plaintiff knew the correct lifting and turning technique, because he demonstrated the lifting and turning procedure correctly at the joint engineering inspection held on 18th September, 2015.
97. That inspection was carried out at the defendant’s former premises, which is now used by Musgraves. From the photographs, it is clear that the area was un-congested at the time of the engineering inspection. When the plaintiff gave a demonstration of what he was doing at the time he experienced the back pain on the day of the accident, he did so slowly so that photographs could be taken of the various stages of the lifting manoeuvre. In such artificial circumstances, which were far removed from the actual conditions under which the plaintiff was working at the time of the accident, one cannot reach the conclusion that because correct lifting and turning technique was used at the time of the engineering inspection, that the plaintiff therefore had received adequate training in such techniques in 2005, when he started with the company, or in the course of subsequent refresher training on the job.
98. The clear evidence of the plaintiff and Mr. Grecko, was to the effect that they did not receive any training in how to turn safely, while carrying a load. The people who allegedly gave the training and refresher training to the plaintiff, being Mr. Fitzsimmons, Mr. Moran and Mr. McDermott, were not called to give evidence. The pocket book which was allegedly furnished to the plaintiff was not produced, nor were the videos which were allegedly shown to him as part of the training. This may be due to the fact that the company has since closed down. In such circumstances, the relevant witnesses, who gave the training to the plaintiff, may not have been available. Be that as it may, I cannot hold that the plaintiff received adequate training without some evidence in that regard.
99. No documentary evidence was produced in respect of the initial training given to the plaintiff when he joined the company in 2005. The forms which were produced in evidence, all related to training allegedly given to the plaintiff a considerable time after he had joined the company. The plaintiff has said that such refresher training was very brief, in that he was only asked a couple of questions and then told to sign the requisite form. No evidence was called as to the content of the refresher training given on the relevant dates. It does seem to have been somewhat of a box ticking exercise. In the absence of evidence from the trainers as to what training they gave in the refresher training sessions, I cannot hold that these sessions covered safe turning technique when carrying a load. I accept the evidence of the plaintiff that the refresher training only comprised a brief question and answer session. I note that evidence was given by Ms. Waters that such refresher sessions were fairly comprehensive and could last a number of hours. However, she accepted that she had never given any training to the plaintiff. In the circumstances, I prefer the plaintiff’s account as to the rudimentary nature of the refresher training given to him.
100. I note also the evidence given by Mr. Peter Keogh, Consultant Surgeon, that the plaintiff’s pain was due to annular tears in the discs in his lower back. Such tears are more likely to be due to repetitive bending, lifting and twisting rather than being due to just one incident. Annular tears could be due to wear and tear in the plaintiff’s back, which may have been asymptomatic, but trauma could have rendered them symptomatic. Mr. Keogh is of the view that one episode of lifting was not likely to be the cause of the annular tears. It was more likely to be one lift of a number of lifts which caused this injury. This supports the conclusion that the plaintiff’s back was damaged over time and that the episode on 29th October, 2012, was just the last in a series of lifting manoeuvres, which caused the plaintiff’s injury.
101. I am satisfied that the plaintiff and Mr. Grecko have given truthful evidence in relation to the training that they received from the company. I accept their evidence that they did not get training in how to turn correctly while carrying a load. That being the case, the defendant was negligent in its failure to provide adequate training to the plaintiff.
102. I note the evidence of Ms. Waters that she recalled the plaintiff coming to her on the day of the accident and saying that he had hurt his back when he changed the wheel on his car. She stated that as this was not an accident at work, she did not make a note of it, or fill out any accident report form. She just let the plaintiff go home early. The defendants have stated that the first they knew of any alleged accident at work, was when they received the letter of claim from the plaintiff’s solicitor in December 2013. It was some months later in July 2014, that Ms. Waters was approached by Mr. Condel, the defendant’s health and safety officer, and was asked to make a statement. I find it difficult to believe that at that remove, some 21 months post-accident, Ms. Waters was able to recall so clearly the content of a brief discussion, which she had had with the plaintiff when, according to her evidence, there was nothing particularly memorable about the conversation.
103. The plaintiff denied telling Ms. Waters that he had hurt his back changing the wheel of his car. He stated that he just told her that he had back pain and wanted to go home. He stated that while he did own a car, he had never changed the wheel on it.
104. Insofar as there is a conflict between the plaintiff and Ms. Waters as to what was said on the day of the accident, I prefer the evidence of the plaintiff in this regard. Having observed his demeanour while giving evidence, I am satisfied that he is a truthful witness. I find that on the balance of probabilities, the plaintiff’s version of this conversation is the correct one.
105. The plaintiff stated that while he did know correct lifting techniques as distinct from correct turning technique but that due to pressure of work in the distribution centre, he was not always able to adhere to correct lifting technique, particularly when working under pressure and in a confined space. In this regard, I note that photograph No. 4 of the defendant’s engineer’s book of photographs gives some idea of the number of combi cages on the premises at or around the time of the accident. It is clear from this photograph that the plaintiff could have been obliged to work in fairly confined spaces when unloading pallets.
106. I am satisfied that the plainitff’s injury arose due to a combination of factors, being: the lack of adequate training in safe turning techniques; the imposition of a rate of work that was excessive; that the workers were forced to take shortcuts when lifting items in an effort to achieve their targets and working in confined spaces, which increased the likelihood of suffering a twisting injury.
107. I accept the evidence given by the plaintiff that he made complaint to Geoff Fitzsimmons and David Kennedy in relation to the pressure which he was working under, in an effort to reach his pick rate target. Nothing was done in relation to these complaints. This evidence was not contradicted by the defendant.
108. I do not accept that the plaintiff has established that he was singled out for more heavy duties, such that, if it was quiet in the chill area, he would be moved to the ambient area, if it was busy. While this may have happened, I am not satisfied that it established any discrimination against, or unfair treatment of, the plaintiff. The plaintiff also complained that he was not rotated in the same way as other workers were, between light and heavy duties. Ms. Waters accepted that on occasion, the plaintiff had made complaint to her when he was assigned heavy duties, that he had been assigned to heavy duties on the previous day by another team leader. She stated that she would try to rotate him onto lighter duties if that was possible, and if it was not possible, she would try to send assistance to him. I accept Ms. Waters’ evidence in this regard. I am not satisfied that the plaintiff was discriminated against in relation to the rotation of workers between heavy and light duties.
109. Having regard to my findings as to the inadequacy of the training given to the plaintiff, I find that the defendant was also guilty of a breach of statutory duty and, in particular, breached s. 8(2)(e) and (g), and s. 10 of the Safety Health and Welfare at Work Act 2005. The defendant was also in breach of Regulation 69 of the Safety, Health and Welfare at Work (General Applications) Regulations 2007, and Schedule 3 thereto and in particular paras. 4 and 5 thereof.
110. In all the circumstances, I am satisfied that the defendant was negligent and in breach of statutory duty in failing to train the plaintiff in relation to safe turning techniques. This lack of adequate training was exacerbated by the fact that the plaintiff was obliged to work under excessive pressure so as to reach his targets. The company did not heed his complaints when he complained about this state of affairs. In addition, I am satisfied that on occasion, the warehouse was very cluttered with pallets and combi cages, such that it was very difficult for the plaintiff to carry out a satisfactory lifting and turning manoeuvre, when putting items onto the combis. In the circumstances, the defendant is liable for the injury to the plaintiff’s back which became apparent in October 2012.
111. There is no evidence that the plaintiff failed to take sufficient care in relation to the carrying out of his duties either on the day of the accident, or in the days and months leading up to it. Insofar as the plaintiff may have adopted an unsafe turning technique, I am satisfied that this was due to the fact that he had not been adequately trained in safe turning techniques. Accordingly, I decline to make any finding of contributory negligence against the plaintiff.
Quantum Issues
112. The plaintiff stated that after the accident, he had severe pain in his lower back. At first, he took painkillers. He tried to return to work after two days, but was not able for it. He went to his GP on 31st October, 2012, complaining of severe pain in the right side of his back. He could not move or bend. His GP referred him on to Mr. Keogh, Consultant Orthopaedic Surgeon.
113. The plaintiff stated that his back was very painful in the first few weeks after the accident. He had to take a large amount of painkillers. He could not sleep at night. He had constant pain.
114. He saw Mr. Keogh approximately six months after the accident in April 2013. He sent the plaintiff for an MRI scan, which was carried out in August 2013. The plaintiff stated that Mr. Keogh told him that he had damaged discs in his lower back and that he could not return to his pre-accident work. The plaintiff stated that at that time, he had a very stiff and painful back. He had difficulty bending to put on his socks. He was given the option by Mr. Keogh of having an epidural injection. The plaintiff stated that he refused this, as he was somewhat fearful of having an injection to this back. Instead, he returned to Slovakia and attended a spa, where he had massage and intensive physiotherapy over a period of ten days. He felt better for one month after receiving the treatment in the spa. However, the severe pain returned after approximately one month.
115. The plaintiff returned to see Mr. Keogh in April 2014. He told the doctor that he continued to have pain in his back. He was told that the problem was caused by his heavy workload. The plaintiff stated that on some days his back would be a little better, but that on other days it would be severely painful. In bad weather, the back was painful.
116. Towards the end of 2014, the plainitff’s GP, Dr. Mansour, told the plaintiff that he would only be fit for light work. By this time, the plaintiff had been made redundant by the defendant company, on its closure. The plaintiff enrolled on a FÁS course in forklift driving. This lasted for one month and he passed the course.
117. The plaintiff stated that he was not in work at the present time. He had applied for a number of forklift driving jobs, but all of the employers wanted somebody with experience. He had also applied to work in a sandwich bar, but got no response from them. He had also applied to do a computer course, but had not yet heard back from them. The plaintiff stated that he had been offered a job as a general operative in a public house premises and was due to start on the following Saturday. The work was part time being approximately three/four days per week. It was paying the minimum wage, approximately €9.15 per hour.
118. In relation to his present condition, the plaintiff stated that his back was improved, but was still painful in the morning. When he moves around, the back is much better. It would be sore after sitting for any period. In the months following the accident, he had had disturbed sleep due to pain, which led to anxiety and tiredness. He stated that at present, his sleep was a little better. He did not require to take painkillers at the present time. He stated that he had had physiotherapy treatment in Connolly Hospital and also acupuncture treatment. This had gone on over a period of six months. He continues to do the exercises every day as he had been shown in the hospital. He also does yoga.
119. A medical report from Dr. Anas Mansour dated 26th February, 2014, was admitted in evidence. In the report, Dr. Mansour stated that he had first seen the plaintiff on 31st October, 2012. He had been seen on approximately ten occasions between that time and the date of the report on 26th February, 2014. At that time, the doctor was of opinion that the treatment required would consist of a rest, analgesia and physiotherapy. He hoped for a full recovery within 15 – 18 months, but stated that this would depend on the plaintiff’s response to treatment organised by Mr. Keogh.
120. Evidence was given by Mr. Peter Keogh, Consultant Orthopaedic Surgeon at Connolly Hospital, Blanchardstown. He noted that the plaintiff had been referred to his clinic on 3rd April, 2013. He was seen at the triage clinic on 21st August, 2013, complaining of back pain and numbness in his left foot. He also mentioned increasing urinary frequency over the previous six months. Examination showed some restriction of lumbar spine movement. Neurological examination showed reduced power in the L4-S1 myotomes, with decreased sensation in this area. Straight leg raising was 45 degrees on the left. Mr. Keogh referred the plaintiff for an MRI scan.
121. The MRI scan was carried out on 27th August, 2013. This was reported as showing mild degenerative disc disease in the lumbar spine, with mild bulging at L3/4 and L4/5 with annular tears. At no level was there any significant thecal sac or nerve root compression. The plaintiff was reviewed again at the clinic on 22nd January, 2014, and further conservative treatment was advised.
122. When reviewed on 21st February, 2014, the plaintiff complained of ongoing lower back pain. He had constant pain in his back. He was taking painkillers. He complained of sleep disturbance and stated that he was stiff in the morning. He also had frequency of micturition, but this was not referable to the accident. He was awaiting physiotherapy treatment. He had been in Slovakia in November 2013 and had a programme of spa rehabilitation. He found that of benefit. The plaintiff stated that he felt down and somewhat depressed. He was on medication for this complaint but was uncertain if it was of any benefit. He felt that it was impossible for him to go back to his original job. At that time, Mr. Keogh prescribed a lumbar support for the plaintiff and he re-requested physiotherapy treatment. Mr. Keogh was of opinion at that time that the annular tears at the L3/4 and L4/5 levels were a major cause of the plaintiff’s ongoing lower back pain. The prognosis at that time was uncertain. It depended on how the plaintiff responded to conservative treatment which had been prescribed. Mr. Keogh was of opinion that he would not be fit to return to his pre-accident employment.
123. The plaintiff was reviewed by Mr. Keogh’s team in Connolly Hospital in April 2014. At that time, the plaintiff reported ongoing back pain with left sided leg pain radiating to the knee. The plaintiff returned to his clinic on 1st October, 2014, complaining of persisting low back pain and right leg pain. Injection with interventional radiology was suggested and although the plaintiff got an appointment for that, he declined to have it done.
124. The plaintiff was reviewed by Mr. Keogh on 16th October, 2015. He had ongoing soreness in his lower back. He was stiff in the morning and had difficulty dressing. He had some upper limb symptoms as well. He remained out of work. He had been assessed by his GP at the end of 2014 and deemed fit for light duties. He was on job seekers benefit and reported that he had successfully completed a course in forklift driving. He had ongoing urology symptoms. He felt that he would be fit for sedentary duties if toilet access were available. He felt occasionally depressed and had some financial worries. He was living off his savings from the previous ten years work, due to his inability to work following the accident. On examination, straight leg raising was 80 degrees bilaterally, hip joint was mildly stiff on the left. There was no motor deficit in the lower limbs. X-rays of his hips were normal.
125. Mr Keogh noted that the situation was essentially unchanged since his previous report. He noted that the plaintiff had hurt his back in an incident at work in October 2012. At that time he had been employed as a general operative. He remained out of work. He complained of back pain and intermittently right or left sided leg pain. He also had morning stiffness. An MRI scan had shown degenerative disc disease in the lumbar spine, with mild bulging and annular tears the L3/4 and L4/5 levels. At no level was there significant neuro-compromise. Mr. Keogh stated that it was likely that the annular tears in the lumbar spine were the major cause of the plaintiff’s ongoing lower back pain. These tears rarely occur as a result of one incident. They were more likely to be due to repetitive bending, lifting and twisting.
126. Mr. Keogh noted that he had ongoing urinary problems, but these were not thought to be related to the back injury.
127. The doctor noted that the plaintiff had responded to some degree to physiotherapy, he had declined spinal intervention. No surgery was planned for his back. Mr. Keogh was of the view that the plaintiff was going to have some ongoing lower back pain and would be unlikely to return to heavy manual work, but would be fit for sedentary or light duties. Mr. Keogh stated that the longer that the symptoms went on, the less likely the plaintiff was, to make a full recovery. He stated that he was not surprised that the plaintiff had ongoing back pain.
128. In cross examination, Mr. Keogh accepted that the findings on the plaintiff’s MRI were not uncommon for a person of his age. He stated that annular tears could be caused by wear and tear, they do not have to be traumatic in origin. They could be asymptomatic, but if trauma is applied, this may render them symptomatic. That the plaintiff did have degenerative changes in his lower back. These were mild in nature; they were definite but mild. There was no nerve root compression.
129. Mr. Keogh stated that when he saw the plaintiff, he had been to the GP on one occasion and had been prescribed anti-inflammatory medication. He first saw the plaintiff at six months post accident. He recommended physiotherapy treatment. He thought that the plaintiff had had such treatment after his second request had been put in. He accepted that a patient would have to adopt the physiotherapy regime and follow the instructions given in relation to doing exercises.
130. He was a little surprised that the plaintiff had been out of work all the time that he had seen him. However, he believed that patients can judge for themselves if they can return to work. They stated that the plaintiff had been fit for light work all along. He was glad to see that the plaintiff had done a forklift driver’s course.
131. He had suggested an epidural injection and discussed this with the plaintiff and an appointment had been obtained for such treatment, but the plaintiff had declined it. He stated that if a patient had unrelenting pain, he would give an epidural in an attempt to break the pain cycle. However, in this case, the plaintiff had declined the treatment; some people are frightened of needles going into their back. He did not push this treatment on patients. He stated that if that was him, he would not have the intervention unless he was in a very bad way. He would avoid surgery.
132. The plaintiff told him that he had injured his back while lifting cartons of yogurt. This was a repetitive activity. The plaintiff claimed there had been one incident, when he came to see him. However, one episode of lifting would not cause annular tears. Mr. Keogh stated that it was more likely to be one lift of a number of lifts which would cause the injury.
133. By agreement of the parties, two medical reports were handed in on behalf of the defendant. The first of these was a report from Mr. Brian J. Hurson, Consultant Orthopaedic Surgeon, from an examination carried out on 22nd January, 2015. He noted that the plaintiff complained of pain in the midline of his upper lumbar spine in the area of L2/3 and in the para-spinal muscles on both sides. He also experienced pain in the anterolateral aspect of his left buttock, left thigh, left leg and lateral foot. His symptoms could be aggravated by walking for 30 minutes. Thereafter, sitting helped. He noted that the plaintiff may have five to ten episodes of symptoms in a month. These used to be more frequent. The plaintiff complained of being stiff in the morning. He would loosen up with daily activities. Also he worked on a home exercise programme, which helped.
134. Examination of his back showed that it had a normal appearance with normal lordosis. The plaintiff could flex to touch his toes. Extension and lateral bending were normal. Straight leg raising was 80 degrees on the left. At this point, the plaintiff experienced mild pain in his left hip. He had a normal range of left hip movements. Neurological assessment of his lower limbs was normal. The doctor noted that the plaintiff used to experience pain in his lower back when working prior to the accident in October 2012. On one occasion, he took a week off work because of his back symptoms. That was two years before his accident.
135. In his summary, opinion and prognosis, Mr. Hurson noted that the plaintiff experienced pain in his back as he was lifting cartons of yogurt. This pain became progressively worse. He had been treated with anti-inflammatory medication and physiotherapy. This was against a background of having had aching pains in his lower back in the past. He currently complained of intermittent episodes of pain in his upper lumbar spine, which were associated with pain in his left leg. He also complained of stiffness in the morning time. The home exercise programme helped his symptoms. Examination showed that he had a normal range of back movements. Neurological assessment of his lower limbs was normal. He had no nerve tension signs. His MRI study showed mild degenerative changes. There was no evidence of nerve root compression. Mr. Hurson was of the view that essentially the plaintiff had suffered a soft tissue injury/sprain of his lumbar spine, aggravating previously existing back complaints.
136. The second report was from Dr. J. A. O’Dwyer, Consultant Neuroradiologist, dated 20th January, 2016. He reviewed conventional imaging of the lumbar spine dated 1st November, 2012, which was approximately three days following the incident. He noted that there was disc degeneration evident at L3/4, L4/5 and L5/S1 levels. This was manifest by narrowing of the L3/4 and L4/5 discs with marginal osteophyte formation anteriorly at L3 and L4. Further degenerative change was evident at T12/L1 and L1/2. There was normal vertebral alignment and there was no evidence of bone injury.
137. Dr. O’Dwyer noted that the plaintiff had had an MRI scan of the lumbar spine on 27th August, 2013. However, that scan had not been made available to him.
138. Dr. O’Dwyer noted that there was degenerative change evident on the plain scan which he had reviewed. He noted that there was reference to annular tears. He noted that there was no disc protrusion or nerve root compression evident. He stated that annular disc tears, possibly better known as annular fissures, are part of the degenerative process and are not traumatic in etiology. He stated that in his opinion there were no changes on the MRI scan report that could be attributable to the incident.
139. Evidence was given by Ms. Patricia Coughlan, Vocational Rehabilitation Consultant. She assessed the plaintiff on 7th December, 2015. She noted that the plaintiff had received secondary school education, taking his final year examinations in 1985. He had intended to go on to college and had an interest in going on to study logistics and applied to a military college and was accepted on this course. However, he left after six months, as he felt that the course did not meet his expectations. He was also interested in studying sociology, but he did not pursue that interest any further.
140. In terms of his work history, he had secured employment in 1985 in a local hotel. Between 1990 and 1995, he was employed as a terrain researcher, working out in the field looking for uranium sites to drill. He left when the company went into bankruptcy. Between 1995 and 2000, he was employed as a shop assistant in an electrical retail shop. From 2001 to 2004, he worked as a landscape worker on a Kipputz in Israel. In 2004, he came to Ireland and secured a position with Smurfit in Tallaght working as a machine operative. He was employed in setting and calibrating printing machines. He would feed cardboard to semi- automatic printing machines and assembled promotional advertising displays. He left this job when his contract ran out. From February 2005 to July 2014, he worked full time as a general operative with the defendant company at its warehouse in Blanchardstown, Dublin. He remained with the company until he had his accident on 29th October, 2012. Thereafter, he was out sick and was finally made redundant upon the closure of the company in July 2014.
141. Ms. Coughlan noted that the plaintiff reported ongoing lower back pain, which was worse some days more than others. He could walk for up to two hours, but could not do lifting or carrying of heavy loads. He had difficulty bending. He could not do heavy housework. Going down stairs seemed to aggravate his low back pain. His sleep was disturbed by pain. Ms. Coughlan noted that the plaintiff reported ongoing bladder problems and he was on medication for that. She noted that the plaintiff continued to have unpredictable back pain, that radiated into his left leg sometimes and he would get pins and needles in his left leg. She noted that the plaintiff had worked on his rehabilitation and had gone swimming regularly. He also used heat treatment, went walking and did exercises. He did the exercises for about 40 minutes each morning to loosen up his spine.
142. Ms. Coughlan noted that the plaintiff had successfully completed a forklift driver’s course. She noted that from a vocational point of view, he had been advised by his doctors not to return to heavy manual work. He was looking for light work at the time of her assessment.
143. Ms. Coughlan stated that as a result of the injury, the plaintiff had been left at a considerable employment disadvantage, given his lack of educational qualifications and his limited English. He was also at an employment disadvantage due to his ongoing back problems. If he is not fit for heavy work, he will have to look for light work. In trying to secure such employment, he will have to compete against younger people, who have no history of back problems and who have fluent English. In addition, his absence from the work market was also a disadvantage.
144. Ms. Coughlan advised that the plaintiff should see if there was any Community Employment Scheme in his area. He should also try to improve his English. She noted that he was anxious to get back to work and possibly he would be able to get light work as a car park attendant or a cinema usher, which would pay €9.15/€10 per hour. She recommended that he should also contact the National Learning Network.
145. Although he had obtained a qualification in forklift driving, nearly all forklift jobs require at least two years experience and good English. In addition, these jobs usually involve some lifting. She had advised the plaintiff to try some driving jobs, such as fast food delivery or flower delivery. She felt that he needed some retraining to break the pattern of unemployment. He realistically had two alternatives: (i) sedentary jobs; or (ii) light driving duties.
146. In cross examination, it was put to the witness that the plaintiff had been certified fit for light work since 2014, but had not done any work in 2015. Ms. Coughlan stated that this was not surprising, as he came from a labouring background, it was difficult for him to get light work. While there were jobs that he could do since 2015, not having fluent English would be a disadvantage. She accepted that according to his doctors, the plaintiff is fit for light duties. He would be fit for light duties that would involve some small physical elements, e.g. car park attendant, some factory jobs, cashier or switchboard operator, if his English was good enough.
147. It was put to the witness that the plaintiff had been certified for light work by his GP in December 2014. She stated that he had told her that he had been looking for work. He seemed to be trying to get back to work. He had done the forklift driving course but was not able to get a job because he did not have two years’ experience. He could do a computer course and hopefully get a part time job. She stated that his marketability would improve if he got a job. She stated that the fact that he had recently got a part-time job in a bar will be helpful. He was capable of fulltime hours, in light work.
148. Finally, evidence was given in relation to the plaintiff’s loss of earnings claim by Mr. Nigel Tennant, a Consulting Actuary. The parties had agreed that in respect of the period from the date of the accident to the date of closure of the company in July 2014, when the amount of the recoverable benefits and the sum paid by way of redundancy payment was subtracted from the relevant loss of earnings figure, there was a nil loss in this regard. The parties had further agreed that the figure for loss of earnings between the date of redundancy and the date of hearing of the action, was €33,150.
149. In respect of the plaintiff’s pre-accident earnings, he earned €501 gross per week, which came to €430 net per week. Mr. Tennant noted that Ms. Coughlan had stated that if the plaintiff returned to light work, he would earn between €9.15 and €10 gross per hour. For the purposes of his calculations, Mr. Tennant had assumed that the plaintiff would therefore be able to earn an average of €9.575 gross per hour. On these figures, if the plaintiff returned to full time light work, he could hope to earn €349 net per week. This would give rise to an ongoing loss of €81 per week.
150. Mr. Tennant calculated that on a real rate of return of 1% and based on a retirement age of 68 years, this would give a net weekly loss of €81 and the appropriate multiplier was €948, giving a capital value of the loss of €76,788. On a real rate of return of 2.5% and based on a retirement age of 68 years, the calculation was €81 x €858, giving a capital value of the loss of €69,498.
151. The multipliers and valuations furnished by Mr. Tennant did not take account of any contingency deduction along the lines of Reddy v. Bates. Mr. Tennant pointed out that under current government proposals, all employers in the State are to be obliged to make occupational pension schemes available to their employees in future years and to make contributions to those schemes on the employees behalf. This would mean that any future loss of earnings to the plaintiff will have “knock on effects” on these pension contributions, as the pension contributions will be a percentage of pay. The valuations given in the actuary’s report were in respect of future loss of earnings only and did not allow for ancillary loss in respect of such pension contributions in future years. The author suggested that the non-inclusion of any additional claim in this regard should serve as a potential offset to any Reddy v. Bates type contingency deduction from the above future loss of earnings figures.
Conclusions on Quantum
152. The plaintiff is 47 years of age having been born on 28th June, 1968. At all material times, he was employed as a general operative at the defendant’s warehouse premises in Northwest Business Park, Blanchardstown, Dublin. The plaintiff suffered injury to his back as a result of an accident which occurred on 29th October, 2012.
153. According to the evidence given by Mr. Peter Keogh, Consultant Orthopaedic Surgeon, it is likely that the plaintiff suffered injury to his back over a prolonged period of time, culminating in the pain which he experienced after carrying out a lifting and turning manoeuvre in the course of his work on 29th October, 2012. Mr. Keogh is of the view that the main cause of the plaintiff’s back pain, was the annular tears to the discs in his lower back. He is of opinion that such tears are unlikely to be caused by one single incident, but are more likely to have been caused by repetitive lifting, bending and twisting to the plaintiff’s spine in the course of his work. I am satisfied, on the basis of this evidence, that there is a causal link between the activities carried on by the plaintiff in the course of his work, and the onset of severe back pain in October 2012.
154. The plaintiff has received treatment in the form of physiotherapy and acupuncture which was carried out over six months in 2013. In addition, he also returned to his home country, Slovakia, and attended a spa there, where he received physiotherapy and massage treatments over a period of ten days. While this gave him considerable relief from his symptoms, this only lasted for approximately one month, before the back pain returned.
155. I am satisfied that the plaintiff has given a truthful account of his injuries and of their effect upon him. He states that at present, while there has been considerable improvement in the back pain, he continues to experience pain on a daily basis. He experiences pain on waking each morning, and has to do a series of exercises to loosen up his back. His back becomes sore after sitting for any appreciable period of time. He also has disturbed sleep, although it has to be noted that some disturbance of the sleep is due to unconnected urological problems. The plaintiff stated in evidence that at present, he does not require painkilling medication. The plaintiff stated that his back pain would be somewhat unpredictable and that on occasions it would radiate into his left leg and sometimes he would get pins and needles in the leg. The plaintiff goes swimming regularly, as this is helpful for his back. However, he is not able to play water polo or go cycling, as he had done prior to the accident.
156. Of some importance, is the fact that the plaintiff has been rendered unfit for his pre-accident employment as a result of his injuries. His doctors are of opinion that he is only fit for light duties and will be so disabled for the rest of his life. He has become somewhat depressed as a result of this disability and as a result of the financial hardship that it entails.
157. The plaintiff was offered the opportunity of having an epidural injection to ease his pain. However, due to fears that he had concerning the nature of this treatment, he declined to have this treatment. Mr. Keogh stated that it was reasonable for the plaintiff to have these concerns. He stated that he would not push this treatment onto his patients. He said that if that was him, he would not have the intervention unless he was in a very bad way. He stated that he would avoid surgery.
158. I am satisfied that the plaintiff has suffered a significant injury to his back, which has given rise to ongoing sequelae. Of more significance, it has rendered this relatively young man unfit for heavy work.
159. The defendant’s doctor, Mr. Hurson, was of the view that the plaintiff had sustained a soft tissue injury/sprain of his lumbar spine aggravating previously existing back complaints. In this regard, it has to be noted that the plaintiff did have pre-existing degenerative changes in his back. Furthermore, he had suffered previous injuries to his back in 2009 and 2011, which had rendered him unfit for work for a short period on each occasion.
160. Taking all of the medical evidence into account, I am satisfied that the plaintiff has suffered a significant injury to his lower back, which has rendered him permanently disabled in the work aspects of his life. I accept the plaintiff’s evidence that he continues to experience back pain on a frequent basis, particularly when he awakes in the morning. In the circumstances, I award the plaintiff €40,000.00 for general damages for pain and suffering to date.
161. In relation to the assessment of general damages into the future, while I note that the plaintiff has made considerable improvement, he has nevertheless been left with a significant disability into the future, in that he is now only fit for light work. In these circumstances, I award the plaintiff €30,000 for pain and suffering and disability into the future.
162. In relation to the plaintiff’s loss of earnings claim, the parties have agreed that the sum of €33,150.00 should be allowed for loss of earnings between the date of redundancy and the hearing of the action.
163. The final area is the plaintiff’s claim for future loss of earnings. I am satisfied, having regard to the evidence given by Mr. Keogh, that the plaintiff is capable of returning to light duties, on a full-time basis. Adopting the rates of pay as put forward by Ms. Coughlan and subtracting that from the plaintiff’s pre-accident net earnings, gives rises to a weekly loss of €81. Based on a retirement age of 68 years and assuming a real rate of return on a 1% basis, gives rise to a capital value of the loss of €76,788.00. If a real rate of return of 2.5% is used, the capital value of the loss until a retirement age of 68 years is €69,498.00.
164. The figures given by the actuary do not take account of any reduction along the lines of the decision in Reddy v. Bates. Indeed, in this case, a contingency provided for in that case actually occurred, in that the defendant company closed down in July 2014. Thus, even if the plaintiff had not been injured, he would have been made redundant at that time. The essential difference being that, but for the accident, he would have been put back into the labour market as a healthy man, capable of taking on heavy work. As a result of the accident, he finds himself in the labour market but only capable of doing light duties. This is a particular handicap to him, given that he has somewhat limited educational qualifications and does not speak fluent English. Thus, as postulated by Ms. Coughlan, his chances of securing full time light duties, when competing against younger and healthier candidates, who speak fluent English, must be seen as somewhat limited.
165. The picture is further complicated by the fact that just before the hearing, in or about January 2016, the plaintiff did, in fact, secure employment albeit on a part time basis, working in a public house. For the basis of this calculation, I am going to ignore the fact that the plaintiff has taken up part time light duties and I will assume that he would be able to find full time light duties if he wanted. This will give rise to an ongoing loss of €81 per week, which on a 2.5% basis until retirement at age 68, gives rise to a capital value of the loss of €69,498.00. As the plaintiff would have a further 21 years of working life ahead of him, it seems to me that there must be some reduction on the basis of the Reddy v. Bates decision. In the circumstances, I will allow the sum of €50,000 for future loss of earnings.
166. In the actuary’s report, it was suggested that there should be no reduction along the lines of Reddy v. Bates, due to the fact that, under current government proposals, all employers would be obliged to make occupational pension schemes available to their employees and to make contributions to those schemes on behalf of their employees. It was submitted that as the contribution to such scheme would be based on the employee’s earnings, the plaintiff would therefore suffer a loss due to the fact that, as he was only fit for light duties, his earnings would be less than would otherwise have been the case. In these circumstances, it was submitted that the loss of pension contribution should be set against the Reddy v. Bates deduction and that therefore no such deduction should be made from the figure given for the capital value for the loss of future earnings.
167. I do not propose to adopt this suggestion. There was no evidence before the court as to what the terms of this proposal might be, nor was it indicated when the particular scheme might be put in place. In these circumstances, it is not appropriate to take into account a particular scheme which has not yet been placed on a statutory footing, nor were any concrete figures given in relation to the scale of the contribution that might be made. For this reason, I think that it is appropriate to make the Reddy v. Bates deduction as outlined above.
168. Adding the component parts together, the plaintiff is entitled to judgment against the defendant in the sum of €153,150.00.
Ozoruchi v Crean
[2016] IEHC 613
JUDGMENT of Mr. Justice Cross delivered on the 4th day of November, 2016
1. The plaintiff was born on 20th March, 1973, and came to Ireland from Nigeria. She is married and in 2005, received permission to remain in this country and is a naturalised Irish citizen.
2. Having achieved her permission to remain, the plaintiff commenced training and obtained a degree in Social Services from her studies between 2007 and 2011 and commenced working with a home care agency in November 2012, and was subsequently employed since 29th October, 2012, by Cheshire Homes as a carer.
3. The plaintiff’s worked involved heavy and strenuous, physical labour of lifting of elderly infirm and immobile patients.
4. The plaintiff has now two Irish children.
5. On 12th January, 2013, the plaintiff was travelling on the public highway near Dromre West, Co. Sligo, heading to her home in Sligo from the Cheshire Homes in Co. Mayo when a motor vehicle, property of the third and fourth named defendant being driven by the second named defendant overtook the first named defendant’s vehicle and collided into the plaintiff.
6. Whereas there was an issue between the defendants due to allegations that the first named defendant’s vehicle which was towing a trailer was not properly lit, the case is now one for assessment of damages only from the plaintiff’s point of view.
7. The impact was a severe one, but initially the plaintiff was not aware of any particular pain though she was very frightened as she was trapped in the car and could not exit. She had to be removed from the vehicle by the services. She was taken to Sligo Hospital.
8. She suffered a significant fracture to her right hip, disruption of her symphysis pubis fracture of her pubic rama, fractures of her lumbar spine at L2/L3/L4, lacerations of her liver and an inferior vena cava injury. She had some soft tissue injuries to her neck and contusions from her seatbelts. As a result of her subsequent treatment, she has been left with a number of significant scars. She also had a depressive reaction and suffered from PTSD which has improved though not entirely.
9. The plaintiff was admitted by ambulances to Sligo General Hospital under the care of Mr. Gaine, Orthopaedic Surgeon and was then transferred to Tallaght Hospital under the care of Mr. McElwaine until 22nd February, 2013.
10. In hospital, the plaintiff had an operation including fixation of her acetabulum. The metal plate has been left in situ. The liver laceration and lumbar spine fractures were treated conservatively and she had inferior vena cava filter inserted. She was discharged for follow up care in Sligo Hospital.
11. The plaintiff was referred to cognitive behaviour therapy for her PTSD but she was unable to take up the cognitive behaviour therapy due to the length of the waiting lists.
12. She was prescribed a significant cocktail of heavy pain medication including anti-spasmatics, hypnotics, Paracetamol and Morphine based Codine painkillers in the form of Oxynorm. She also had Lyrica Morphine patches.
13. In Tallaght, she underwent two operations and when she was discharged home, she had to stay there on the strong medication which affected her ability to enjoy life and work. The pain continued and she suffered nightmares and was tearful. Her husband who had travelled with her to Dublin and taken time off work was then let go from his employment.
14. The plaintiff was left with two significant large operation scars, one at the front of her abdomen from her umbilicus down and a second very significant long scar from her buttocks to her right thigh. She also had some minor scarring in the region of her neck due to the insertion of the filter, but this has resolved.
15. The filter was removed in June 2013 and the plaintiff was seen by Dr. Theresa O’Connor, and she suffered from ongoing low back hip and thigh pain. An MRI scan taken in July 2013, indicated some disc protrusion.
16. The plaintiff attempted to return to work in January 2014, but was unable to persist due to the heavy physical nature of the work and she had to go off work after a few days. She has not been able to return to her pre-accident work.
17. The plaintiff’s husband, who was unable to find work in Ireland, went to the United Kingdom and the plaintiff followed him in August 2014 and settled in Manchester. She had a cancer scare in her breast while in Manchester but she was most relieved when the lump was found to benign caused, it is believed probably by the effect of the seatbelt in her trauma.
18. The plaintiff had martial difficulties and separated in January 2015.
19. In 2015, the plaintiff applied to study for a Masters Degree in Social Studies but was unable to do the full time work for financial reasons and also possibly because of the full time demanding nature of the work.
20. Since February 2016, the plaintiff has found work in England as a part time home care worker, working for an agency in a residential home catering for mildly mentally handicap adults. This work is light and involves supervision and she is employed on a contracted basis of 16 hours per week though she sometimes works for longer and sleeps overnight in the centre. The plaintiff enjoys this work.
21. During the time since the accident, a number of the plaintiff’s injuries have cleared up but she is still in constant pain in her right hip and is still on painkilling medication. The pain to her back and to her pubis region has resolved. The plate inserted has remained in place. The scars are permanent. The plaintiff’s medication has been reduced but she is still prescribed significant painkilling medication.
22. I have had the benefit of hearing the evidence and the cross examination of the plaintiff. She was, as both her own and the defendant’s experts attested, a positive optimistic person. I also heard from the plaintiff’s GP, Dr. Damien Teirnan, Mr. Michael Leonard, Orthopaedic Surgeon, and Dr. Theresa O’Connor, Pain Specialist, in addition I was furnished by agreement of the parties with the medical reports of Mr. Michael Sweeney, Orthopaedic Surgeon, Dr. Mohammed Zaib Khan, Consultant Surgeon, Prof. William Torreggiani, Interventional Radiologist, Mr. William Gaine, Consultant Orthopaedic Surgeon from Sligo, Mr. Matt McCue, Plastic Surgeon, Charles Gillispie, Physiotherapist, Dr. Mary Maguire, Consultant Psychiatrist.
23. Evidence was also furnished on behalf of the plaintiff by Ms. Ann Doherty, Vocational Assessor and an actuary. Ms. Doherty recommended that the plaintiff be entitled to home help in future in order to assist her around the house. The plaintiff, however, stated that she would continue to rely on her family and does not need the home help and thus reduced her claim by as much as €100,000.
24. On behalf of the defendant, evidence was given by their actuary and the reports of Laura Mannion, Consultant Psychiatrist and of Susan Tolan was also furnished.
25. In relation to the plaintiff’s physical injuries, there is clearly no conflict and no evidence or reports were led by the defendants and I accept the plaintiff as a truthful witness who did not exaggerate and indeed on occasions made light of her complaints.
26. In the words of Mr. Michael Leonard:-
“[the plaintiff] sustained a significant injury to her right acetabulum and pelvis…she also reports having sustained a liver laceration for which she was treated conservatively. She required two operative interventions from the point of view of her orthopaedic injury. This consisted of internal fixation of her right acetabulum and internal fixation of anterior pelvic ring.
Overall, she has recovered well considering the severity of her injuries. She does suffer with ongoing right hip pain which particularly bothers her with walking and activity…”
27. In his final report, Mr. Leonard said that the plaintiff made a satisfactory recovery post the fixation of her injuries. She has bursitis which she was injected for. She is happy to working part time.
28. Mr. Leonard stated:-
“Considering the severity of injuries [the plaintiff] would be unable to return to full time, physical demanding work which she was doing previously.”
29. In relation to the scarring injuries, I was not required to view the scars but I had the benefit of the extensive photography of Mr. Matt McCue. These photographs clearly attested the nature and severity of her scars. The plaintiff’s scars on her neck were not of any ongoing concern but were sited where the valve was inserted and were 1cm in diameter, they have essentially cleared up. She also had initially a scar some 2 inches length from her seatbelt which also settled.
30. On the front of her abdomen there is a scar some 6 inches in length which was broad and stretched and very obvious and visible. It is now not as long as it was but is as described by Mr. McCue in his last report in July 2016 “obvious and visible. It is a puckered type of scar and she is still very conscious of it.” The scar on her right buttock is “the most significant scar, it is now some 12 inches length, broad and stretched and goes from her buttock half way down to her right thigh”.
31. The plaintiff is upset about the appearance of the scars. They affect the clothes she wears, especially on holidays and she does not swim as she would have liked.
32. Mr. McCue is of the view that the latter two scars are not going to improve in the future and plastic surgery has nothing to offer.
33. There is nothing of significance to differentiate the reports from the plaintiff’s treating psychiatrist and Dr. Mannion who examined her on behalf of the defendant. Dr. Maguire stated the plaintiff sustained severe physical injuries but was very positive about her recovery and eager to return to work. “She was honest and genuine in reporting her psychological symptoms and the duration thereof”. The plaintiff developed Post Traumatic Stress Disorder as a result of the accident and her residual symptoms of catastrophic thoughts caused startle reflex and psychological distress.
34. The plaintiff’s sleep pattern was disturbed and Dr. Maguire prescribed increased medication which was of assistance to her. She developed a Post Traumatic Stress Disorder and an adjustment disorder and the depressive symptoms but in her last examination in September 2016, Dr. Maguire was of the view that the plaintiff had improved significantly.
35. Dr. Maguire did not seem to be aware of what the plaintiff freely stated in her evidence and indeed advised the defendant’s psychiatrist, Dr. Mannion, that she had previous episodes of depression before the accident. She had low mood when she arrived in Ireland following the traumatic events which caused her to do so and included depression in 2009/2010, for which she got treatment from her GP and accordingly, I accept as Dr. Mannion said that she was vulnerable to further psychiatric difficulties following stressful events.
36. Dr. Mannion agrees that the plaintiff did develop Post Traumatic Stress Disorder of a “mild to moderate degree” and whereas a certain resolution had occurred prior to Dr. Mannion’s examination in 2014, she does accept that ongoing physical pain leads to a degree of demoralisation and intermittent low mood. Her martial separation undoubtedly perpetuated her psychological difficulties somewhat.
37. Dr. Mannion is optimistic in relation to her future recovery, having observed the positive attitude of the plaintiff, I agree that her prognosis in relation to her psychological injuries is good.
38. In relation to the plaintiff’s working capacity, Ms. Doherty, Vocational Assessor, stated that due to her physical state she would not be suitable for the heavy work such as she did in Cheshire Homes but she was capable of doing the light work in England.
39. Ms. Tolan on behalf of the defendant in her report states:-
“If the accident had not occurred she would probably have continued to work as a careworker for Cheshire Homes and might well have been offered and accepted a full time post. She is no longer fit for the physical demands of care work and part time support work is likely to be the best she will achieve unless she can secure and cope with responsibilities of a supervisory or managerial position in a healthcare setting which might well be possible given the fact that she has a Level 8 degree in applied social sciences.”
40. Accordingly, the state of the evidence is all to the effect that the plaintiff had significant physical injuries in the accident the subject of the proceedings involving two operations. She had also soft tissue issues and she is left with an ongoing hip problem and the metal work is still in situ. She has two ongoing permanent and very unsightly scars. She suffered a mild to moderate psychological injury which though improving is still present. She is still in pain. She had significant medication and she is still on medication. She is a very pleasant lady who is optimistic as to the future and in no way exaggerates her complaints. She was a hard worker and enjoyed her work in Cheshire Homes and would have continued working there. After a long period of absence, they were pleased to take her back to work although unfortunately the plaintiff was unable to persevere after a short number of days. She is unfit for full time heavy work. She enjoys the type of work that she is doing at the moment.
41. The issue between the parties is not the pain and suffering of the plaintiff to date or into the future but rather the issue of the plaintiff’s loss of earnings.
42. In relation to her loss of earnings to date, the plaintiff contends that she had obtained work in Cheshire Homes on a contract of 22 hours per week but was in point of fact earning €799 gross per week.
43. The defendants contend that the plaintiff’s contract was only for 22 hours per week and she may not have been made permanent.
44. Given the plaintiff’s enthusiasm for work and her clear ability to do the work and the fact that though she was absent for a long period of time, her employers were prepared to take her back to work, I have no doubt but that had the accident not occurred, the plaintiff would have continued working earning, at least, the sum of €799 gross. And in that regard, Ms. Tolan on behalf of the defendant, in essence, agreed.
45. The plaintiff’s actuary has calculated her loss of earnings to date on that basis allowing for the earnings she is actually obtained recently in the United Kingdom and subject to certain deductions which I will deal with when coming to the quantification of damages, I believe that the methodology of the plaintiff’s actuary is reasonable.
46. In relation to the plaintiff’s future loss of earnings, the plaintiff’s current earnings in the United Kingdom amount to approximately €220 per week net and the plaintiff’s future loss assuming she would have moved to England and be working in a similar job though full time, i.e. 39 hours rather than 16 hours per week giving a net loss of €191 per week.
47. I think that this approach quite possibly underestimates the plaintiff’s future loss of earnings as had the accident not occurred, it is quite likely that the plaintiff may well have continued in Ireland with her family and be earning her pre-accident wages or greater.
48. However, in ease of the defendant, I will hold that even had the accident not occurred, the plaintiff’s husband would have left for England to find work and that the plaintiff would have followed him and accordingly, I accept the figure of €191 per week represents the plaintiff’s loss up to her retirement at the age of 68.
49. I will use the actuary’s figures as a guide and take into account an allowance for Reddy v. Bates.
Damages
50. The plaintiff seeks compensation for:-
(a) Special damages to date other than loss of earnings;
(b) loss of earnings to date;
(c) loss of earnings into the future;
(d) pain and suffering to date; and
(e) pain and suffering in the future
(a) Special Damages
51. Due to the sensible agreement of the parties, the out of pocket special damages have been agreed in the sum of €68,786.
(b) Loss of Earnings to Date
52. As stated above, I accept that the plaintiff, were it not for the accident, would have worked in Cheshire Homes earning approximately €799 gross per week and that her loss of earnings allowing for the deductions of the UK Social Welfare and her UK earnings have been actuarialised in the sum of €102,249 and noting the demand for carers both in Ireland and the United Kingdom, I believe that any reduction in respect of Reddy v. Bates ought to be minimal and I will award the sum of €100,000 for loss of earnings to date.
(c) Loss of Earnings into the Future
53. In accordance with the judgments of the Court of Appeal in the Gill Russell case, the appropriate rate of return is 1.5% and I find that the appropriate date for retirement is 68 years.
54. In addition to her present earnings, I note that the plaintiff is also being paid a sum, the exact basis of which is unclear in respect of tax credits in England which is apparently akin to our Social Welfare payment schemes. It seems that these figures are allowed by the actuary when he assessed loss of earnings to date but is not included in his figures for loss of earnings into the future.
55. The parties were unclear whether the plaintiff, at law, would be obliged to give credit to the defendants for whatever these sums may be but I will give the benefit of the doubt in this regard to the defendant on the basis that the plaintiff has to prove her losses and make a reduction.
56. I believe that the figure of €191 per week to age 68 is the appropriate guideline on the basis of 1.5% and that this totals on the actuary’s calculation €198,449. Given the Social Welfare payments and a relatively modest deduction for Reddy v. Bates, I will assess the loss of earnings into the future in the sum of €175,000.
(d)&(e) General Damages to Date and into the Future
57. My function in assessing general damages is to ascertain what sum, being fair and reasonable to both the plaintiff and the defendant were to place the plaintiff into the same position as she would have been had the accident not occurred.
58. It is trite law to reiterate that small or minor cases should required small damages, moderate cases should require moderate damages, severe or substantial cases should require severe damages.
59. Utilising the categories of injuries in the Book of Quantum, there is no doubt that the plaintiff has sustained a severe injury. Whereas there are a number of significant permanent consequences in relation to her injuries, the categorisation of severe, if required to be broken down further, would be broken by me into the moderately severe range though towards the higher end of that range.
60. Whereas I am obliged by law to have “regard” to the figures in the Book of Quantum when assessing my damages, I find that in this case with significant cocktail of injuries including psychiatric injuries and, in particular, severe scarring, I do not find the Book of Quantum of assistance to me.
61. Given the severity, however, of the injuries to date and being fair and reasonable to both of the parties, I believe that a figure for general damages to date to compensate the plaintiff for the accident, the physical pain and suffering, the emotional and psychological pain and the scarring she has undergone that the sum of €100,000 for pain and suffering to date is appropriate.
62. In relation to future pain and suffering for the permanent scarring and the ongoing though diminished pain, physical and psychological, I will award the sum of €50,000.
Summary
(a) special damages €68,786
(b) loss of earnings to date €100,000
(c) loss of earnings into the future €175,000
(d) Pain and suffering to date €100,000
(e) Pain and suffering into the future €50,000
Total €493,786
63. Having come to the said figures, I am obliged to have regard to the entirety of the award of €493,786, to ascertain whether the same is fair compensation for the plaintiff and I do so find and make that award.
Higgins v. Smith & Anor
[2004] IEHC 360 (15 November 2004)
Judgment of Mr Justice Michael Peart delivered the 15th day of November 2004:
This young lady is truly lucky to be alive, which is perhaps the only consolation she can derive from the appalling car accident in which she was involved as a rear seat passenger in the afternoon of the 7th May 2000 shortly after her eighteenth birthday. Certainly no money awarded by the Court will compensate her for the terrible injuries she sustained, and the trauma of the accident itself. Psychological and physicals remain and will no doubt do so for the rest of her life.
I have formed the view from the evidence which I have heard that while she has displayed a remarkable resilience and determination to overcome the psychological effects of her injuries, she is nevertheless still haunted by the memory of that day. Fortunately, liability was not an issue in the trial of this case before me, but nevertheless she was required to give evidence in relation to her injuries, and thereby having once again to relive the day itself and the long aftermath while she recovered.
It was mid to late afternoon on this day when the plaintiff was a rear seat passenger in a car being driven by a friend of her then boy-friend. Unfortunately she was not wearing a seatbelt. I should state at this point that at the commencement of the trial I was informed by her Counsel that it had been agreed that there should be a deduction of 5% from the damages assessed, in respect of this element of contributory negligence on her part.
The plaintiff gave evidence that prior to the impact this car was being driven at high speed along a road at Oldhead, Louisberg, Co. Mayo, when suddenly the car hit a telegraph pole, whereupon the car turned over, trapping those inside. She herself was completely trapped at the rear of the vehicle and her head was hanging out of the window. The position of the car was that it was hanging over a drop at the side of the road, which she described as being about two lengths of her own body, so it is safe to assume that it was a ten or eleven foot drop.
She lost consciousness for a short time. A shocking feature of this case is that following the accident she was trapped inside this vehicle for a period of about four hours before eventually being cut out of the vehicle and taken to hospital. She had been horribly injured and must have been in great pain. I will deal with those physical injuries shortly. But she stated that after she became conscious she became very panicky at first. She was aware that there was a sizeable drop below where the car was resting. She could also smell grass and petrol fumes and feared naturally that there might be a fire. While she wanted to get out of the car, she knew that she could not, and decided that since she knew that it would take some time to be rescued, she would try to relax, as she put it.
After the rescue services arrived there was a lot of noise involved in cutting her out of the vehicle and this was also a frightening experience. This plaintiff has not in any way attempted to exaggerate or in any way overplay the trauma of what happened on that day. In fact she has showed a remarkable maturity for her years in how she gave her evidence, confining her evidence to essential matters. I want her to know nevertheless that it is obvious to me that she has been severely and deeply affected by the tragic events of that afternoon, and that I admire more than it is possible to express in a judgment of this kind the way in which she has dealt with them and no doubt will continue to deal with them into the future.
The injuries:
While she was trapped in the car awaiting her rescue, she knew that her arm was broken because it was badly twisted, and she could taste blood in her mouth. She also had a sore face. She could not feel any pain in her legs which were trapped in the wreckage. Before the rescue services arrived, the driver of the car had attempted to get her out of the car but this was not possible. She was caused pain in that attempt. In addition as I understand it, the driver had knocked against her broken arm when he was trying to extricate himself from the vehicle.
She has stated that when the rescue services arrived, they were able to free her legs but that the pain was excruciating. She was placed on the ground lying on her stomach, and she was thereafter rolled over onto a stretcher. The driver of the car and his mother travelled to the hospital with her. When she arrived at Mayo General Hospital she was in a great deal of pain and she was given painkillers. X-rays were taken, and she was transferred to Marlin Park Hospital, which is a journey of about one and a half hours. She gave evidence of being sore everywhere at this time, and that she did not see her face at that time. She remembers being prepared for the operating theatre, and recalls knowing that she had fractures but did not appreciate the severity of them.
The earliest medical report is one dated 11th September 2000 (some four months post-accident) from Mr C.V.R.Prasad MB; FRCSI, Consultant Orthopaedic Surgeon at Merlin Park Regional Hospital, Galway. He states that she came under his care at 00.50am on the 8th May 2000. As already stated, she had first been brought by ambulance to Mayo General Hospital in Castlebar, but was transferred after a couple of hours to Merlin Park. Mr Prasad noted that on admission she had the following injuries:
Multiple abrasions to her face;
Fracture of the shaft of her right humerus with radial nerve palsy;
Fracture of the left femur;
Contusion and bruising to the right leg;
Bruising over the right breast.
Thereafter he states:
“After initial assessment and resuscitation, she was taken to operating theatre on the same day. The right humerus was exposed through a Henry extensile approach and radial nerve explored. The radial nerve was found to be in continuity with no obvious contusion. The nerve was protected and fracture reduced and fixed with a seven hole plate and screws. The fracture of the left femur was also reduced using a traction and stabilised with an intramedullary locking rod. Post operatively she was treated with a splint on the right hand and active physiotherapy. She was mobilised in a wheelchair.
On the 10th May 2000 she complained of chest discomfort and blood in the sputum. At that stage the attending doctor suspected pulmonary embolism and commenced her on anti- coagulation treatment. A ventilation perfusion scan was requested but this was not feasible due to deficiencies in the Western Health Board facilities. Her chest condition improved rapidly. I had assessed her overall picture and I felt that her chest condition was probably a fat embolism or due to blunt injury rather than a pulmonary embolism.
All her wounds were healing quite well and she was mobile in a wheelchair. Her compliance with physiotherapy was somewhat limited. Her family was from Dublin and hence discharge were discussed with them (sic) for further follow up in Beaumont Hospital. She was discharged on the 15th May 2000 for further follow up in Beaumont Hospital, Dublin.”
It is clear from this report that at that time the most serious injuries were the fracture to her right humerus with radial nerve palsy, and the fracture of the left femur. A feature of the case which has assumed now a greater importance than these fractures, is the scarring which has resulted from the surgery she underwent relating to the treatment of these fractures. There is also some residual scarring from the facial abrasions (to her left eyebrow and chin) which were noted by Mr Prasad on admission to Merlin Park Hospital, as set out above, and she has a mark on her neck of which she is very conscious. I will return to these matters in due course.
Following her discharge to Dublin from Merlin Park Hospital, Mr Prasad’s involvement with the plaintiff’s injuries ceased. Thereafter she came under the care of Mr Raymond Moran, Consultant Orthopaedic Surgeon at Beaumont Hospital.
Journey to Dublin
The hospital was unable to provide ambulance transport to Dublin. This necessitated a slow and most unpleasant journey in the family car. It was necessary for the plaintiff to lie down as best she could on the back seat since she was unable to bend her broken leg. She describes this journey as being “agony” and taking a long time because she wanted her father to drive slowly because of her pain. There was also the practical difficulty of not being able to stop and get out of the car in order to use a toilet. In order to overcome this, the hospital had provided some sort of cardboard device, but she says that it did not serve the purpose adequately, and she found this aspect very distressing on the journey. The pain and indeed the affront to her personal dignity which this journey entailed is also a matter which I am entitled to have in mind when assessing damages, and I will do so.
Beaumont Hospital:
Once she was home she was able to be accommodated downstairs. Her bed was brought down, and she was able to access the downstairs toilet. But, as appears from the report of Mr James Corbett to which I shall refer in more detail later, it appears that when she got home she was doubly incontinent and had to wear nappies for two days before she was admitted to Beaumont Hospital. This was naturally very distressing for her on top of the injuries themselves. She spent one night at home before going to Beaumont Hospital where she remained for nine days until her discharge from Beaumont Hospital on the 25th May 2000. On her return home she again was accommodated downstairs as she was in a wheelchair for three months. She was unable to go upstairs and spent much of her time watching television. Fortunately her mother was available to help in relation to toilet and other personal matters on account of her arm fracture and the problem with her thumb resulting from the nerve palsy in her right arm. She was able to use the crutches, but had to be careful about putting weight on her right arm. She apparently had two crutches of different lengths because of this problem, but she states that she never got used to using them. Eventually as her leg got stronger she was able to use just one crutch. There is some leg shortening which has required her to use a 2cm lift in her shoe in order to avoid the risk of arthritis degenerative changes in the future. She says also that she currently swims five to six times per week.
In relation to the nerve palsy in her right arm she states that her right thumb was affected and that she wore a splint in order to deal with that problem
Medical reports of Mr Raymond Moran, Consultant Orthopaedic Surgeon:
Mr Moran states in his first report that by the time of her discharge from hospital she was mobilising with the aid of a gutter crutch, and that she was managing about 80 degrees of flexion of her right knee. By October 2000 he was able to report that she was making good overall progress, and that she demonstrated a full range of movement of her right arm which was “non-tender”. He also states that the radial nerve was showing improvement, with “just slight weakness of extension of her finger”. He noted at that time that there was a full range of leg movement and that her wounds were “well healed”. He was optimistic that she would make a good recovery from these injuries.
By February 2002, Mr Moran reported that the plaintiff was still getting some intermittent discomfort in the middle aspect of her left thigh. It was just coming on suddenly and for no apparent reason. She took pain killers to deal with this difficulty. She thought that there was some association between this and cold weather. He reported that her right arm function was satisfactory, apart from some shooting pain if she bangs her right arm. By 2002 she had returned to some work in customer services and was managing her day to day activities.
He noted about 1cm muscle wasting in her left leg, and that her wounds were well healed, but was able to state that she had a full range of movement of her left hip and knee, and in relation to her right arm he remarks: “Her right arm shows a quite noticeable curved anterolateral incision. It is somewhat unsightly”. He also opined that increasing her exercise activity in a gym (which she intended doing at that time) would be helpful.
In his final report dated 14th October 2004, Mr Moran has stated that the plaintiff continuers to experience pain in her left knee which can be worse at the end of a day’s work if she is standing a lot. Her leg fracture has completely healed. He was hopeful still that any residual discomfort (which, he notes, seems genuine) would settle with time, and that she ought not to have any long-term functional disablement.
Report of Mr Martin Walshe, Consultant Orthopaedic Surgeon:
Mr Walshe has provided a report dated 14th August 2003 at the request of the defendants. He largely confirms the history of the orthopaedic injuries and their state of recovery referred to by Mr Moran. He also refers to the scarring and I will deal with his comments when dealing with these scars in due course. In general as far as her fractures are concerned, Mr Walshe is of the view that she has recovered, apart from some shortening of the left leg which is compensated for by an appropriate shoe raise, and the scarring.
Effect on the plaintiff’s work:
The plaintiff was due but for this accident to start work in a pharmacy where she hoped to be involved in the selling of over the counter remedies, and she also expected that this work would lead her onto a course. However following the accident she could not pursue this work because she was told that it was too physical in the sense of involving too much standing during the day’s work. She took up work as soon as she could as a telephonist in a courier company for nine months, and then joined a freight company where she did office and administration work for about a year and nine months. I understand she is now at college where she is undertaking a course in beauty and make-up.
Effect on physical activities:
Prior to this accident the plaintiff enjoyed in swimming and dancing. These were both severely curtailed by the injuries which she sustained, but she has got back to swimming and does so about five or six times a week, which presumably is as much part of a continuing exercise programme as well as for pleasure. Again the scarring of which the plaintiff is very conscious is a factor to be taken into account in relation to her swimming activity. As far as dancing is concerned, she had to be very careful after she had recovered at first, in order to avoid any damage. But as far as dancing is concerned she is conscious of the facial scars and also the scar on her right arm which is visible unless she wears a sleeve which is long enough to cover it up. I will deal with this aspect again shortly.
Psychiatric/Psychological Sequelae:
Following the accident and for a long time, the plaintiff would wake up at night screaming and shouting. This was very distressing for her and no doubt for her family. She had nightmares and flashbacks, and disturbed sleep pattern. Eventually she learned to deal with this problem with assistance form Mr James Corbett, Consultant Psychiatrist. She describes it as having to let them play out i.e. the nightmares and flashbacks. She described suffering from Post Traumatic Stress Syndrome (‘PTSD’) which Mr Corbett has confirmed. She was prescribed some medication for this, but chose or preferred not to take it.
She described also taking a long holiday on the Canary Islands because as she says herself “I needed to escape and find who I was”. She kept asking herself “why me?”, and so on. By September 2004 when she went back to Mr Corbett she felt she had improved, and the nightmares and flashbacks had reduced, even though she was still affected by the accident. It is convenient to refer now to the reports of Mr Corbett which have been admitted. She has stated to me that she is concentrating on trying to get better, but she can get depressed and very upset when she is on her own.
Reports of Dr. James Corbett, Consultant Psychiatrist:
He describes in March 2004, the nature of the flashbacks associated with the accident itself such as the smell of the petrol and grass. Her nightmares involved accidents, and she was also very anxious when travelling in a car. He describes her as being also unable to relax, in a state of hyperarousal and unduly sensitive to noise, and that she became irritable and impatient. He states also that her consumption of alcohol increased and that overall she was angry at her predicament. He describes her as having PTSD of “moderate to severe severity”, and that while she had at that time made some progress following upon psychotherapy, she still had ongoing symptoms. He noted that she had a positive personality and was well motivated.
In his report dated September 2004 which was prepared following the plaintiff’s return from her holiday in the Canaries. She reported that she had found work there in a beauty salon which she found fulfilling. He reported also that she had reported experiencing pain in this job because it involved standing during the day, and that this was a worry for her as far as her future career was concerned. She also reported to him that she was very conscious of the scar on her right arm. She continued to have distressing recollections of the accident. She is particularly prone to upset when she is on her own. She can become upset, such as when she hears the same music playing that was playing at the time the accident happened. The smell of grass even now can upset her. She still finds that she weeps and can become depressed by the accident.
Mr Corbett has noted that following the accident the relationship with her then boyfriend terminated and that she has since then had some difficulty maintaining a long-term relationship. As a general prognosis he opines that her symptoms will resolve over a three year period, conditional on a favourable outcome to her physical injuries.
The Scarring:
In my view this is the most serious aspect of this case, involving a young girl who is now, four years after the accident, 22 years of age.
It is best to refer first of all to the 3 reports of Mr Brian Kneafsey, Consultant Plastic and Reconstructive Surgeon, and thereafter to the plaintiff’s own evidence in relation to the effect this scarring has had on her. He refers in his first report to the history generally and to the fact that an intermedullary nail was inserted in her femur, and a plate was inserted in her right arm. He states that while in Beaumont Hospital the sutures associated with this surgery were removed, as well as some steri-strips which were used to hold together the facial lacerations. He states that when she was first referred to the Plastic Surgery Clinic in January 2001 it was noted that she had extensive scars over her right arm and left leg as well as some smaller scars on her chin and neck. He refers to them as being at that time “immature scars” and that she was advised to wait at least six to twelve months before any scar revision would be considered.
By the date of the first report in April 2001, it was almost twelve months post accident, and he noted that while the plaintiff stated that the scars had improved, she still had problems with them, some being lumpy and itchy. He then sets out five separate scars as follows:
“1. Left eyebrow and side of nose:
She has very minor scars in these regions which were treated with paper steri-strips and have settled after about a month and do not cause her any distress at all.
2. Left side of chin:
The scar on the left chin bothers Miss Higgins somewhat because it is quite lumpy and she feels that it is a little obvious. She does however admit that the symptoms of itchiness have greatly improved in this scar and that the red colour has also faded very well.
3. Left neck scar:
The scar on Miss Higgins left side of neck she is still quite embarrassed about. These are intermittently itchy and become quite red in hot weather. However this itchiness has reduced. The appearance of the scar sometimes leads to teasing and she has been accused of having a ‘love bite’ on the left side of her neck.
4. Right arm scar:
This scar bothers Miss Higgins considerably. She describes it as very red and ugly and particularly its colour has not greatly improved over the last year and also is associated with some abnormal sensation in the surrounding skin.
5. Left leg and buttock:
There are three scars in this region, which cause Miss Higgins some embarrassment particularly going swimming. These have not greatly improved in their appearance and remain a source of embarrassment for her.”
In his report he elaborates on these scars, describing those on her chin as two curved semi circular scars over the left chin prominence, and that they are very faint but “lumpy or pin-cushioned”. The scar on her neck he describes as “a slightly reddened stretched scar measuring 1.5cm x 1cm”. However he states that it is pale and not obvious. He describes the right arm scar as one which is a very large obvious scar which can be seen from across a room. It is C-shaped and measures 18cm x 1.5cm in width, but that when one includes the white line of intermittent scars from sutures, the width is 2.5cm. It is red/pink in colour and is stretched and obvious. He describes the scars on her left leg as being three in number, two of these being obvious. The first is located high up near the buttock and is 6cm x 1.5cm. It is purple in colour and slightly indented. The next is lower down on the lateral aspect of her left thigh with a contour deformity, being pale purple in colour. The third which is lower down the left thigh measures 1cm x 1.5cm and which is also pale purple in colour.
Mr Kneafsey describes the right arm scar as the worst but says that all scars will be permanent, even though they would improve over the following year or so. He expressed the view at that time that it might be possible to improve the right arm scar with “scar revision”, but that there would still be a permanent scar.
By the time Mr Kneafsey prepared his report in May 2003 he was able to report that the scars on her chin, eyebrow and neck “have essentially disappeared and are no longer a problem for her”. He also noted that the scars on the left leg had improved, but that the scar on her right arm had not greatly improved and was causing her concern. The plaintiff had reported to him at that time that her main concern was the scar on her right arm. She had also infirmed him that people noticed this scar and asked her about it. That scar was still quite tender and sensitive and that even if she receives a gentle knock in that area of her arm she gets a shooting pain down her arm and in fact her arm can go dead. The colour of this scar is also affected depending upon whether the weather is cold or warm. At that time the scars on her left thigh, even though improving, continued to bother her somewhat but not to the same extent as that on her arm. Mr Kneafsey notes in this report that the scars on her chin and neck were not noticeable from a distance, but that on closer examination they are evident but not very obvious. The scars on her leg were improving in as much as they were paler than when he had previously seen them.
Referring to the C-shaped scar on her arm, he states that this is an embarrassment to her in terms of its appearance and is also tender. He also believes that there is still some loss of sensation in the forearm. He expresses the view that while it would be possible to remove by surgery the “wider stretch portion of the scar” which would produce a thinner scar, that thinner scar would nevertheless remain red in colour for a year or two years post surgery, and of course it would also remain the same shape. The tenderness which she had at that time would not be improved by such scar revision surgery. Short of scar revision surgery he sees no prospect of further improvement in this scar in the medium to long term.
Mr Kneafsey’s final report is one dated 27th July 2004. He describes the plaintiff’s situation as being unchanged since his previous report. While all the other scars had “settled down” the scar on her right arm was still a problem for her. It is still tender to the touch and sensitive, and he describes her as having “hyper-sensitivity within the scar and surrounding area”. However he states as follows as far as the effect of the C-shaped scar on her arm:
“…However she is extremely self conscious about the scar on her right arm. She tells me that it is a constant reminder of her injury and people are constantly asking her what has happened and she often tells them that she was bitten by a shark but she finds the whole scar very distressing……….While she is still conscious of the other scars on her chin and legs they do not bother her too much and she is not that self conscious about them at all but she is extremely concerned about the scar on her arm”
He states that the scar on her arm could be improved with scar revision surgery and that the plaintiff is most anxious to have this carried out.
The plaintiff’s evidence regarding her scarring:
She stated that the sutures had been removed while she was in Beaumont Hospital. That was the first time that she was able to see the scars on her leg and her arm. She did not look at her facial scarring for some time after that. She described how when she saw the scar on her arm she thought it “gory and horrific” and that she “couldn’t handle it”. She recalls seeing the scars on her leg and buttock and wondering “are they real?” She found that she just had to keep looking at them.
She thinks that the scar on the side of her nose looks bumpy, and that the scars on her chin can get raised and red even nowadays, and this irritates her. She finds the mark on her neck to be very embarrassing because it can become red and she gets teased about it being a “love bite” and she is genuinely and understandably distressed about that. These scars become more red in heat.
But it is the scar on her right arm which upsets her most. When she goes out socialising in the evening she cannot wear clothing that she might wish to because she prefers now to wear clothing which conceals the large and obvious scar on her upper right arm. If it is visible, she is constantly asked about that scar and this upsets her greatly since it serves as a constant reminder of her accident and she is forced to relive it all over again and constantly. She stated that on some occasions she will go out in the evening in clothing which does not conceal this scar, but that she might cover it with a loose cardigan or shawl. While she might drop the shawl occasionally, this would be rare. She would hardly ever wear short sleeves. This is a significant problem in her life.
When she goes swimming this arm scar is visible and obvious and in fact become more red and purple after swimming.
She has been told, according to her evidence, though it is not mentioned by Mr Kneafsey in his reports, that she could get some laser treatment to improve the colour of the scar but that while it can minimise the scar there is no guarantee of success and it may not be worth the risk.
With regard to the scarring on her left leg and buttock, these bother her a lot when she goes swimming. These scars also change colour and become purple and red when she swims, presumably because of the water temperature. In swimwear these scars are visible and obvious. She is very conscious of them. When she is out socialising these scars are not visible because they are covered up.
Conclusions:
At the outset I should state that I had the opportunity to see all these scars for myself, and I am satisfied that the plaintiff has not exaggerated these in any way whatsoever. The impact of these scars on a girl of such youth is obvious and if anything I am of the view that she has underplayed the effect these scars have had upon her and her life generally. Particularly being at the age she is, these scars, and particularly that on her arm, but also to a still significant extent those on her leg and buttock are the cause of significant distress on a constant basis. The scar on her arm is a very unsightly and large scar, despite the best efforts of her surgeon. The scar on her buttock is a significant scar still and is one she is self conscious of when swimming, and very understandably so. Fortunately the other two scars on her thigh are of lesser impact. As far as her face is concerned, these scars were clearly visible to me on a close inspection, but fortunately, and if necessary with a small amount of makeup, I am satisfied that while they are there they are not too visible. The mark on her neck is a problem for her because she gets teased about it in the way she has described. At her age this would be naturally very tiresome and distressing, and there is not a lot she can do about it as far as covering it up is concerned. Its position on her neck does not permit her to cover it conveniently, and I can well understand the difficulty this causes her, particularly at her age, but perhaps at any age.
In my view what has happened to this plaintiff is shocking, and life changing for her. She has described the awful effect this accident has had on her in the four years since it occurred, and it will continue to haunt her for some time to come. As I stated at the outset I think this young girl has, certainly before me in Court, displayed remarkable courage and maturity for her years, and remarkable resilience in dealing with what happened to her. I admire her greatly, and I am sure that she will continue to deal with the impact of the accident upon her, and I certainly hope that in time she can lead a full life, no longer adversely affected by the visible and invisible scars which remain.
The Court unfortunately cannot give back to her the unblemished body she had before this accident. It is confined to awarding some amount of money commensurate with the seriousness of the injuries which she sustained and the extent to which she will continue to live with them into the future. I have absolutely no doubt that this plaintiff would swap all the money in the world if she could wind back the clock to a time before this accident.
In measuring general damages for past pain and suffering I am not overlooking the trauma of the accident itself, particularly the terror experienced by this plaintiff while she waited for the rescue services to arrive and eventually extricate her from the vehicle. Neither do I overlook the appalling experience of the journey from Galway to Dublin when she was subjected to such indignity. I take into account the fractures to her arm and leg and the seriousness of them, as well as the pain involved in the aftermath of surgery during a very long recovery period, and the fact she was confined to a wheelchair for such a long period. I take into account the disruption to her social life and the very serious psychological effects of the accident such as the nightmares and flashbacks experienced over a long period. I believe that the flashback and nightmares are largely eliminated now, although they return on occasions. Lastly of course and very importantly I take into account the scarring which I have described in great detail.
For past pain and suffering, including the scarring which will be permanent, I measure a sum of €130,000.
As far as the future is concerned she is of course left with the scarring, but I have included the permanent nature of the scarring in the figure just mentioned. As far as the fractures are concerned, it is pleasing to note that the plaintiff will in all probability not suffer greatly in the future, but she does retain a predisposition to some form of depression which comes against her from time to time, especially when she is on her own. I am optimistic that this also will improve as time goes by, given the very great courage and positive attitude which this young lady has displayed to date. Under this heading of future pain and suffering I award an additional sum of €25,000.
The total of general damages is therefore €155,000. From this sum I must make a reduction of 5% for agreed contributory negligence, which reduces general damages to the sum of €147,250.
Special damages are agreed at €28,000.
I therefore give judgment to the plaintiff in the sum of €175,250, and make an order in favour of the plaintiff in respect of the costs of the proceedings, including any reserved costs, same to be taxed in default of agreement between the parties.
Hackett v. Calla Associates Ltd. & Ors
[2004] IEHC 336 (21 October 2004)
Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:
Introduction:
This case arises out of an incident outside a nightclub known as Marleys Night Club, on the night of the 12th January 1996 or the very early hours of the 13th January 1996, when the plaintiff alleges that he sustained a very serious injury to his right eye and the area surrounding it as a result of a blow received from a blunt instrument wielded by what is commonly known as a ‘bouncer’ employed at the premises on the night in question. The circumstances giving rise to the injury are in dispute, as is the allegation that the injury was caused by any such bouncer on that night. The defendants deny that any baton or blunt instrument was used at all when a group of bouncers came out of the premises into the car-park to break up a crowd which was causing trouble outside the nightclub, and they maintain that no more than reasonable force was used, and that if the plaintiff suffered any injury it was entirely his own fault, or at least that he was guilty of contributory negligence.
The first named defendant is a limited liability company which owned the licensed premises of which Marleys forms a part. The second named defendant is the person in whose name the licence itself was held following an ad interim transfer application to the District Court on the 23rd September 1992. There is some dispute arising in these proceedings as to whether the bouncers on duty that night were employees of the first defendant or whether they were the employees of the second named defendant, and that is an issue which I will have to address later. Counsel appearing for both defendants stated that it was accepted by both of his clients that the bouncers in question were the employees of the first named defendant. The plaintiff does not accept that, and has attached some significance to the issue.
The claim is in effect only against the first and second named defendants at this stage, it being accepted that the employees in question were not the employees of the fifth named defendants, and that ground of defence has been withdrawn by the first and second named defendants.
One matter which is immediately obvious is that this injury occurred over eight years ago. The simple explanation for this is that the plaintiff has spent about six of these years in prison in relation to a matter entirely unrelated to this particular incident and I do not have to elaborate further in that regard. But it is undoubtedly a feature of this case that this passage of time has made it more difficult for witnesses called to give evidence to remember exactly what happened outside the nightclub on that night.
The injury:
As far as the actual injury itself is concerned, there is no dispute. The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff’s visual acuity in the right eye states “Perception of light only (totally blind)”. This condition is now regarded as permanent, and his level of vision is described in a report dated 13th May 2004 as:
“The condition of his right eye is now permanent and leaves the patient with no stereoscopic vision, diminished side of his visual field, an overall reduction in his visual acuity and an uncompensated blind spot in his left eye.”
There also remains a full thickness scar in the centre of his right eyelid, although the latest report notes that the cosmetic appearance has greatly improved.
The author of these reports, Mr Hugh Cassidy, Consultant Eye Surgeon, gave evidence. He said that the plaintiff had travelled to St. Vincent’s Hospital immediately after the injury was sustained and that on arrival there was extensive bruising to the right cheek and a laceration to the right eyelid. A blow over the right eye had caused the injury to the eye which is described in his reports. He described it as “a blunt trauma” which would have to be caused by a blow from a heavy solid object, and that it would require very severe force to cause a full thickness laceration of the eyelid. He said that in his practice he had seen similar type of injury caused by a blow from a hurley, and described it as a very severe injury, and one which was consistent with the account of the injury which was given. He described the right eye as being a write-off.
Summary of the evidence:
The plaintiff was born on the 9th March 1970 and was therefore almost 26 years of age on the date of this incident. He was unemployed at the time, and apart from the six or so years spent in prison between 1998 and March 2004, his employment record has been sporadic and uncertain.
On the 12th January 1996 the plaintiff had attended the funeral of a friend in the morning. Later in the day he and a couple of his friends “the Merediths”) went to a pub called the “Furry Bog” in the Whitechurch area of Rathfarnham. They were later joined by others, including a lady who gave evidence, namely Colette McGouran. Having spent a couple of hours there they all decided that they would go up to Marleys Night Club, which is operated in a premises which was known as Taylors Grange Hotel. They went by taxi. He and his companions had been in that premises on a number of occasions previously and were known there. In fact the plaintiff was someone who had previously been barred from that premises, but on this occasion he seems to have been able to gain entry to the premises without coming to the attention of the staff controlling entry on the night. He and his friends arrived at about midnight and paid an entry fee to the Night Club. Their jackets/coats were handed into a cloakroom from which they were collected on departure – a matter to which I will again refer.
I am satisfied that the plaintiff was someone who was barred from these premises for some time prior to this night, even though I have no evidence as to the precise reason for that and whether there was a particular incident which gave rise to it, or whether it was on account of the proprietors having formed a view generally about the plaintiff on account of what I might loosely call his “local reputation”. Counsel for the defendants certainly attempted by a certain line of questioning, to suggest that the plaintiff was someone who had a reputation in the area for violent behaviour, but I was not prepared to have that aspect of his character explored in detail since its relevance to what happened on the night in question is very limited indeed. Under cross-examination, the plaintiff accepted that he was ‘no angel’.
The plaintiff stated that after getting to the nightclub he and his friends stayed in a group together and that there was no trouble of any kind. He said that at about 2am on the 13th January 1996 they began to leave the nightclub. It appears that when they arrived the plaintiff had left the coats into the cloakroom but had given the tickets to Keith Meredith, and that the latter joined a queue to collect the coats. This queue was just inside the door of the night club which leads to the car-park outside. In other words, it is between the night club space itself, and the exit door. At any rate it appears that the plaintiff felt that this queue was not moving fast enough for his liking, and he also stated that there were others coming into the queue from his left, and that it was not what he called “a proper queue”. He took the tickets from Keith Meredith and made his way to the top of the queue, thereby giving rise to some difficulty with patrons at the head of the queue. The plaintiff stated in his evidence that when he went to the top of the queue he asked those at the head of the queue if they mind if he stepped in to get the coats, and that they agreed. It is relevant to say at this point that a man named James Clarke, and who was an off-duty security man on this night and who was situated at the head of the queue had some sort of altercation with the plaintiff in relation to his skipping the queue, and the plaintiff accepts that they exchanged words about it and that he “tipped” Mr Clarke in the face. What that means is that he appears to have slapped Mr Clarke’s face with an open hand, not a fist. One way or another I am satisfied that the plaintiff had an aggressive altercation with Mr Clarke at the head of the queue. In cross-examination the plaintiff also accepted that he suggested to this Mr Clarke that if he had any problem with the plaintiff they could settle the matter outside, meaning by way of a fight as far as I am concerned.
Neil Meredith was at the queue at this time also and while he heard some verbal exchanges between the plaintiff and Mr Clarke, he did not see the slap to Mr Clarke’s face or hear exactly what was being said. Similarly, Colette McGouran also was aware that there was something going on at the cloakroom queue but saw nothing and did not know who was involved.
Ms. Sharon Lawless, the Manager of the premises and who says she was employed since 1995 by Calla Associates to manage the night club, states that she heard raised voices at the cash desk and saw James Clarke a man, having an argument about the queue. She was told that the man was the plaintiff in these proceedings. She says that the plaintiff was being belligerent and aggressive and more than was necessary even making allowances.
The plaintiff states that he went to exit the premises into the car-park, but that at this point four or five other security men arrived and he was pushed from behind as he put on his jacket. He says that there was what he called “give and take” on both sides in the altercation, and he was eventually pushed out the door which was then closed behind him. This door is a double door which opens outwards, there being a crush bar in position on the inside of the doors. The fact that the doors do not open inwards is of some relevance because the evidence of the security men is that after the plaintiff was forcibly ejected from the premises, the plaintiff was attempting to push the door inwards from the outside and with such force that the plasterwork around the door frame was beginning to become loose and damaged.
The plaintiff states that after he was ejected there were about 20 or 30 other people in the car-park outside the premises. It was also raining and he says that a number of people were standing under a veranda immediately outside the doors. He says that some of these people, whom he did not know, started to kick at the door but that he ignored them and was intent on putting on his jacket. It was just at this point he says that a small door to the left (as one looks out of the premises) of the double doors was opened and that a number of bouncers emerged. With this, he says, all the others under the veranda disappeared and he was left there as he was still at that stage putting on his jacket. It is immediately after this moment that he says that he received a blow to his head which has caused the injury to his eye, but I want to deal with the other evidence which I heard in relation to this particular point of the evidence, because there are differences between what the plaintiff and his witnesses say happened and what the defendants’ witnesses say happened.
Neil Meredith:
Neil Meredith stated in relation to the kicking of the door that there were a lot of people gathered outside the double doors and that there was a lot of commotion, with some people trying to get back in to get their coats and the bouncers trying to get people out as quickly as they could. He says that after he went out and down the ramp he saw the plaintiff and a bouncer having an altercation. This man was not Mr Clarke. He says that three or four bouncers emerged then from the small side door and ran towards the plaintiff. He says that one of these men was carrying a baton about 12 inches in length and that he caught hold of the plaintiff. He says that two of the other bouncers were carrying larger batons which were maybe about three feet in length. He says that these bouncers ran generally at everybody who was gathered outside the premises and that there was an element of panic in the situation. He says that he saw the plaintiff stumble forward. Under cross examination he was asked whether he saw people outside throwing glasses and stones at the windows of the premises, but he said he did not see that happening. He said also that he did not see the plaintiff doing anything outside the door in the way of kicking the door and so on. It was asked, if that was so, then why did the bouncers come running out the small door and head straight for the plaintiff. Mr Meredith reiterated that they just came out and that one of them hit the plaintiff in the face with a baton and that it was something that he would never forget. He thinks that there were four or five bouncers and that they generally laid into the crowd, but he does not know if any other persons besides the plaintiff were hit.
Under cross examination he was asked to explain how certain aspects of the statement which he made to the Gardai after the incident differed from what he was now stating in his evidence – for example that in his statement he had described the weapons used by the bouncers as “iron bars” rather than batons. Mr Meredith sought to minimise the distinction by saying that a baton is a long object made of either wood or iron, or words to that effect. He could not remember using the term “iron bars” but that it was about eight years ago at this stage. There was also a reference in his statement to the bouncers “swinging digs”, but he could not remember saying that either. It was also put to him that in his statement he had referred to some of the people throwing stones and breaking windows, but that now he says in his evidence that he did not see that happening. He accepted that the statement contained what it contained, but that nothing could take away from the fact that he saw the plaintiff being hit with a bar, and that things would have been fresher in his mind eight years ago.
Colette McGauran:
Ms. Mc Gauran says in relation to this part of the incident that she had heard people banging on the double doors and also that a group of bouncers came running out of the small door, and that one of them charged at the plaintiff and hit him over the head with a baton, and that the plaintiff staggered and went towards the road beyond the car park . In cross examination it was put to her that what she had said in her statement to the Gardai after this incident was somewhat different to what she was now saying in court. She could not remember exactly how she had described matters in her statement and agreed that what was in her statement was likely to be correct given the length of time which has now passed since the incident. However her statement was not put into evidence, but it is suggested on behalf of the defendants that her evidence should not be relied upon given the differences. It is a factor which I will bear in mind as going to the weight of her evidence, but it is necessary for me to reach any conclusions on the evidence heard before me, and the statement is not in evidence. The same applies to the criticism made of the evidence of Mr Meredith in so far as his evidence differs in some respects to what is contained in his statement.
Mrs. Sandra Hackett:
Mrs Hackett is a sister in law of the plaintiff and she was at the nightclub on this night. She had not gone there with the plaintiff but saw him there. As she was leaving the premises at the end of the night she remembers seeing the plaintiff and saying goodnight to him. She did not have to collect any coat from the cloakroom. She said it was slow to get out of the premises because of the amount of people at the entrance lobby. She remembers being just outside the main doors a few feet from a pole which is identified in the photographs produced to the court. She had moved onto a grass area and was just moving through the crowds when she heard a bang. She said there was what she described as total confusion and a lot of people burst out of a door. These were the bouncers, and she said it felt as if there might have been about ten of them, but that it was probably about five and that they had batons in their hands. She described these as being like American baseball bats. She did not see the plaintiff being struck. She described seeing what she called “a scrum” but does not know exactly was involved in that, but she said that some bouncers were involved in it and they would have had batons. She thinks about fifteen minutes might have passed between her exiting the premises and the trouble starting. She thinks that she became aware that the plaintiff had been hit when somebody shouted that he had been hit. She saw blood on his face when he was coming towards her in the car park. She said there was blood everywhere and that the plaintiff was holding his eye. There was also blood on a white car that she was standing at. She says that at this stage the bouncers were looking out of the door down towards the car park where she and the plaintiff were. They did not have anything in their hands at that time.
Under cross examination it was put to her that in her statement to the Gardai after this incident she had stated that she had seen a bouncer hit the plaintiff. She said that it was eight years ago at this stage and that what she has stated in her evidence to this court is what she now can remember. It was suggested to her by Counsel that at this stage possibly she can remember nothing well.
Sharon Lawless:
For the defendants, Ms Lawless stated that after the bouncers had removed the plaintiff from the premises, he was standing outside the double doors shouting back at the bouncers who were inside, and that there was a lot of people outside at that time, presumably waiting for taxis. She says that she telephoned the Gardai as a result of the commotion and what was happening in relation to the kicking of the door. She says that she rang the Gardai because she did not want what she described as “a situation to arise”, because the plaintiff had been barred from the premises and she feared that something might arise outside on account of that fact. She thinks she called the Gardai at about 2.30am. While she did not see exactly what was happening outside because she was inside behind the doors, she says that the doors were being kicked with such force that the hinges at the top of the doors came loose and she was afraid that they would give way under the force of the kicks. She also heard a group of people chanting “One, two, three” and that was followed by more kicking of the door. She says that it was at this point that the bouncers went out into the crowd by means of the small door to the left (as one looks out). She said that she heard glass breaking, and she stated also that a glass bottle came into the premises just past her face and landed beside the cash desk. She went upstairs to call the Gardai and at that point she says that she saw some windows of the premises broken. The bouncers returned to inside the premises and she says that one of the bouncers, a Mr Leydon, had a cut on his head as far as she recalls. She described the incident as being “a riot” and as being “under siege” and that it was very frightening. She was cross-examined of course and she was asked why the bouncers had been sent out to deal with the crowd. She said that when people become aggressive with drink, sometimes the situation can be diffused quickly and this was the reason they went out – in order to “show a presence”. She stated in fact that they were successful in this since the incident died down after a few minutes. The kicking of the doors ceased during this time and the crowd dispersed. She agreed that she did not see exactly what took place outside the doors as she was inside.
She also gave evidence relevant to the issue as to whom the bouncers were employed by, and her own employment at the premises. She stated that she was employed by calla Associates Ltd to manage the night club. She stated in cross examination that she had never worked at any other premises owned by Calla, or even in any other premises owned by Mr Philip Smyth or any other company of his. On taking up her position there was already in place what is referred to as a “suits policy”. All security personnel were obliged to wear suit and bow tie, so that they would be recognised a part of the security team. According to her, Mr O’Reilly was simply the licencee of the bar and had charge of that area, but that she was responsible for the premises as a whole as manageress. She said that it was part of policy that no batons would be used by security personnel and that they were never used at any time and that there were no batons on the premises at any time. She also stated that the person to whom she reported within the company was Brenda Flood and that she was not aware of who the other directors of Calla were. It was put to her that the reason why the bouncers emerged into the crowd through the small side door and not out the main double doors was so that they could fetch their batons from a room behind that small door on their way out. She denied this completely saying that they never used any weapons on that night and that they never have weapons. She said that the reason they did not go out the double doors was that the crowd was outside those doors trying to kick them in.
She also stated that the plaintiff had been barred from the premises for as long as she had been employed as a manager of the premises, and that he must have gained entry through a fire-door entrance as the doormen would surely have recognised him coming through the main door. In any event the plaintiff was known to be in the premises on the night and was not ejected or asked to leave because a decision was made that it would probably cause more trouble to do so, and that in fact there had been no trouble that night before the incident after he had left the premises. She felt that it was better simply to keep an eye on him during the course of the evening.
Clive Leydon:
Evidence for the defendants was also given by Mr Clive Leydon, who was a barman and who also had some responsibility for the bedrooms and function room within the hotel itself as opposed to the night club area. He was responsible for the cash receipts in the bars and as part of his duty he would remove the cash to an office upstairs. He was employed by the company named as the fifth named defendants, Crooked Staff Limited. He said that in all his time in these premises he had never seen any security men with batons or other weaponry, and that most of the doormen were older men with families. He said that on this night he had gone to the night club area to do the cash, and he became aware that an incident had occurred which had resulted in some windows being broken on the bedroom corridor of the hotel. He was concerned that the residents in some of those bedrooms were alright. He said that the incident itself had been a very frightening and traumatic experience. As he looked down a corridor he was hit on the head by a bottle which had come through a window. He retreated to the night club area, and also stated that there was quite a crowd outside and that he briefly saw a bouncer whom he named as John Murphy, in confrontation with somebody. He felt that this crowd was very agitated and ready to use force. Under cross examination he conformed that he worked for Calla Associates Ltd, and that all the bouncers worked for Calla. He also said that in fact it was Mr Christopher O’Reilly, who was involved in the bar area, who paid the bouncers and himself their wages, and that his P60 refers to Crooked Staff Limited as his employer. He also confirmed that Mr O’Reilly was there most days from about 10am, and he would enquire about whether there were any problems with staff or functions, and that in relation to annual leave, it was Mr O’Reilly he would go to. He was asked whether the bouncers would report to him (Mr Leydon), but he said they did not and that he had no responsibility in relation to security matters.
Liam Connolly:
Liam Connolly gave evidence that he had been a part-time doorman for about 8 years, and that at the time of this incident he would have been about 40 years of age. He has never had any trouble as a doorman, and has never either used or even carried a baton as part of his duty as a bouncer. He also said that he had never worked with any other bouncer who used a baton. He has never brought a baton to work, and that this night club was not a dangerous place, and that if it was he would go and work elsewhere.
He remembered that on this night there had been a bit of trouble at the cloakroom queue and that a man had received a blow with an open hand, and that it was not a punch as such. He and another bouncer walked the man to the front door of the night and that there was no resistance. This man was of course the plaintiff, and while Mr Connolly remembers a bit of shouting he took no particular notice of it. He says that at this time the plaintiff asked for what he referred to as ” a straightener”. I gather this is a somewhat euphemistic reference to an opportunity to settle differences outside. He remembers a crowd gathered outside the doors, and that when the doors were closed, some people started to kick the doors. He says that the plaintiff and others were kicking the doors, and that the doorframe was beginning to give because the door itself was plated with steel. He says that he and some other bouncers went out by the side door in order to try and calm things down. He says that when they went out they were jumped upon by the crowd and that there was a lot of glasses and bottles being thrown. He says that he saw the plaintiff on the back of the bouncer named John Murphy and that he pulled him away from Mr Murphy. He goes on to state that he was knocked into the corner at the double doors, and saw what he described as “sticks, stones, bottles and ashtrays” thrown at the double doors. It would appear that at this point those still inside the doors pulled Mr Connolly back inside the premises. He said that he had never seen anything like this before. There were windows broken in the hotel corridor and he says that people in the crowd were pulling stones up from the grass verge and throwing them at the premises.
Mr Connolly was cross examined and was asked about whether the plaintiff was wearing a jacket when he saw him outside. He could not remember. It was put to him that one of the bouncers must have struck the plaintiff but he denied that this had happened and stated that he had simply seen some wrestling going on with John Murphy, and that he had pulled the plaintiff off Mr Murphy’s back. He does not know how the plaintiff sustained his injury. He says that he certainly used no baton but said he could not speak for the others. He also suggested that perhaps the injury was caused by a glass being thrown. In relation to how he was paid his wages he stated that he would be paid in cash at the end of an evening by Sharon Lawless, and he has no knowledge as to who she works for.
John Murphy:
He was employed as a doorman at these premises since about 1987 and he says that his wages were paid to him by Ms. Lawless. He stated that the doormen were not permitted to have batons or iron bars. On this night he was on duty at the night club from about midnight. He walked around and saw some people who he knew to be barred from the premises, but that it was decided to leave them alone as there had been trouble with them before. Nothing in fact happened that night until the incident giving rise to this case. Mr Murphy gave evidence about the incident at the cloakroom queue, and he said that after the plaintiff was put out there were a lot of people coming and going at the entrance lobby. Eventually, he say that they got the doors closed, but that people outside then started kicking at the doors. He says that he looked out through a spy hole in the door and saw maybe seven or eight men, some of whom he recognised, including the plaintiff, and who were all engaged upon kicking the door and shouting abuse at those inside. He described how the force of the kicks was beginning to disturb the plaster around the door frame, some of which was falling to the ground. He stated that at that point they were in some trouble with the crowd. He stated that they decided to use the small side door and when it was opened he states that sticks, bottles, glasses, stones etc came raining down on them. He described being grabbed and that it was “complete mayhem”.He also stated that some windows had been broken prior to this. He says that he was grabbed by the plaintiff, and that the plaintiff had pulled Mr Murphy’s coat over his head and that at this point someone pulled Mr Murphy off him and was pulled back into the premises. He says that the plaintiff was on his back, but that there were no blows, and that he was very frightened as was everybody else. He understood that the Gardai had been called on two occasions and were on their way at this time. He says that when the Gardai arrived they were shown the broken windows and the damage to the doors. He says that about one month later the Gardai returned to the hotel in the company of the plaintiff who identified him (Mr Murphy) as the man who had assaulted him that night.
When cross examined he stated that he was the head doorman on the night. He also said that he could not be certain if he had pulled the plaintiff’s jacket off. It was put to him that security had broken down on this night, but he replied to the effect that it depended how you looked at the situation, and that people were there who ought not to have been there. It was possible, he said, that some of the doormen may not have known who these people were when they arrived. He also confirmed that some of the people who had been outside the doors kicking the door and shouting were some of those who were barred from the premises.
In relation to putting the plaintiff outside the door he stated that it was not a major problem. Mr Murphy stated that because of the scale of the melee outside the premises it was necessary to go out all together rather than one person going out on his own. He says that he may have been the first man to exit, possibly the second, and certainly was not the last. He says that he did not head straight for the plaintiff. He described again the hail of stones, bottles, rocks etc that came down upon them when they went out. He said also that what happened in relation to pulling the plaintiff’s jacket in fact occurred during the earlier encounter when he was putting the plaintiff out of the premises, and not after the bouncers went out of the small door. He says that on this latter occasion he did not go anywhere near the plaintiff, and that he never carries a baton and did not have one. He presumes also that none of his colleagues had batons as it was not permitted by the Management. He also stated that he was not aware that the plaintiff had received any injury until the occasion when the Gardai called to the premises about a month later.
Evidence was also given by Ms Ann Groome who had a franchise for the kitchen on the premises. She says that at about 1.45am she set up her stand near the exit in order to serve hot food to patrons leaving the premises. She saw a good deal of what took place, but her evidence adds nothing further to what has already been set out by way of summary of the evidence given.
Garda Pat Hession from Rathfarnham Garda Station also gave evidence of having been called to an incident at the Grange Hotel on this night. When he arrived he saw a man standing beside a telegraph pole with blood on his face. He spoke to the man and enquired if he wanted any medical attention and whether he had any complaint to make. The man said he did not. This was a short distance from the hotel premises and the Gardai then proceeded to the premises where he saw a lot of broken glass in the car-park and there may have been stones also. He also saw two broken windows near the entrance to the disco area. By this time the crowd had disappeared from the car-park.
Mr Sean Moylan SC on behalf of the defendants submitted at the close of the evidence that there was no evidence whatsoever that any of the bouncers was employed by the second named defendant, Christopher O’Reilly. It will be recalled that at the commencement of the case, he had accepted that these men were the employees of the first named defendant. He submitted that the evidence showed that the bouncers were all paid by Calla. This is a reference to the evidence that they received their wages at the end of the night in cash from Ms. Lawless, the Manager employed by Calla. He urged that there was one body in control of these premises and that was calla, and not Mr O’Reilly who was the holder of the licence and who had charge of the bar facility.
Mr Richard McDonnell SC on behalf of the plaintiff urged on the other hand that under the provisions of the Occupiers Liability Act, 1995 an occupier is a person exercising control , and that where there is more than one such person, the critical factor is the degree of control exercised by each. Mr McDonnell stated that the plaintiff was led to believe that the 2nd named defendant was a mere licencee, but that the reality was that he was certainly in control of the bar areas, including the entrance fee paid by patrons to the night club, and that there was no evidence as to who benefited from that fee. He also stated that the evidence had shown that in fact Mr O’Reilly was very active on a day to day basis in relation to the management of the premises. Therefore Mr McDonnell submitted that since the plaintiff was a visitor to the premises on this night, Mr O’Reilly cannot abrogate his responsibility on the basis that he does not pay the wages of the bouncers. He submitted that Mr O’Reilly was not a mere licencee but was to be regarded as a joint occupier with a joint responsibility for what happened on this night.
In response Mr Moylan highlighted the need to look at the degree of control; exercised by a person in relation to a premises when deciding whether they came within the definition of an occupier under the said Act.
Before stating my conclusions, I want to refer to a document which was handed to the Court, namely a copy of an Agreement dated 22nd September 1992 made between Calla Associates Limited and Christopher O’Reilly. By this document, Calla lets the premises in question to Mr O’Reilly, including all contents and fixtures and equipment on a week to week basis until terminated, and it is stated that “This letting is made for the temporary convenience of the Lessor until such time as it may require the premises for its own use for trading purposes, or for the use of any person nominated by the Lessor…”
Paragraph 4 thereof states that the Lessee shall carry on the business of a licensed hotel and public bar business “and with the right to hold public dances in the premises in accordance with the licences in force from time to time………and shall do all things necessary to ensure that the premises are conducted as an hotel in accordance with the standards and requirements of Bord Failte………”
Paragraph 5 provides that the “lessee shall fully comply with all the requirements of the Intoxicating Liquor Acts in relation to the conduct and management of the premises and in particular in relation to the non-admission of persons under a legal age, the hours of opening and closing the premises whether the statutory provisions in force, or by virtue of special exemptions or otherwise granted in respect of the premises and he shall co-operate with the Garda authorities in relation to such matters as required from time to time.”
The Agreement contains many more covenants on the part of Mr O’Reilly which one would expect to find in a document of this kind, including one which states that a weekly rent of an unspecified amount but one which shall be agreed from time to time, shall be paid to Calla by Banker’s Order; another which obliges Mr O’Reilly to keep the premises in good order; another by which the Lessee shall be responsible for all claims which may be brought by members of staff under the heading of Employers Liability; and another by which Mr O’Reilly covenants to conduct business in the hotel “in a manner consistent with the grading and status of the hotel, as a licensed hotel having a Public Dance Licence.
The Lessor on the other hand covenants with the Lessee, Mr O’Reilly in a number of matters of relevance, including the following:
“B. To keep the premises hereby let insured against all risks which the Lessor shall decide, such risks including fore insurance on the premises and contents thereof, and all public liability insurance, but excluding Employers Liability which shall be the responsibility of the Lessee and the Lessor covenants to indemnify the Lessee against all public liability claims that arise from incidents or occurrences during the term of the letting, save and except such claims that may be repudiated by the Lessors Insurers or Underwriters by reason of breach on the Lessee’s part of conditions contained in the relevant insurance policies in force………The Lessor shall have the interest of the Lessee as occupier noted on all relevant policies and the Lessee covenants to cooperate with the Lessor in relation to the making of all claims under the various Insurance Policies in force ……..” (my emphasis)
Neither Mr O’Reilly nor Mr Philip Smyth gave evidence to this Court, so I am entitled to assume that this agreement was still in force at the time of this incident. The precise nature of the arrangement between the two parties is somewhat unclear, given the fact that under the terms of the agreement it is the Lessee and not Calla who are to be responsible for staffing, whereas the evidence has been that Ms Lawless paid the security staff who say that they were employed by Calla as was she also. I have no idea of the precise nature of the arrangements as far as who received the proceeds of the night club’s takings are concerned, such evidence being quite easily provided by the defendants if they had chosen to lead it. Mr Moylan was obviously instructed to indicate to the Court that it was accepted by the first named defendant that the bouncers were in the employment of Calla, but in view of the fact that the only evidence which I received in relation to that matter was from Ms. Lawless and not from either of the principals, I am entitled to look behind that concession or admission in the particular circumstances of this case. I prefer to look at the matter from the point of view of the documents, and in particular the said Agreement, which must have formed the basis of the Ad Interim Transfer of the licence to Mr O’Reilly, and as I understand the position to remain that Mr O’Reilly was on the date of this incident still the holder of the licence.
It is clearly recognised in this Agreement that Mr O’Reilly’s interest as occupier is to be noted on the insurance policies which the Lessor Calla has covenanted to put in place. It is also clearly stated as one would expect that Calla will indemnify Mr O’Reilly against all Public Liability Claims arising from incidents at the premises. That implies that Mr O’Reilly is intended to be the first target of any such claim, and that Calla will simply indemnify him in respect of same. I do not believe that the fact that the bouncers are stated to have been paid in cash at the end of the night by an employee of Calla can render nugatory the terms of a legally binding agreement which has formed the basis of a licence transfer in the District Court and under which Mr O’Reilly holds the licence to run the premises. I am not privy to what precise arrangements have or have not been made outside the terms of that agreement, and they ought not to interfere with what appears to be the legal position arising from the document itself.
It is also relevant that under the Agreement, as set forth above, Mr O’Reilly has responsibility for Employee Liability insurance claims, as well as ensuring that the premises are run properly.
In my view there is such a mingling of functions between both Calla and Mr O’Reilly, according to the evidence, and such a relationship created by the Agreement, that it can reasonably and properly be said that both the defendants are occupiers of the premises and that each owe a duty to the visiting public, including the plaintiff. Since the Agreement actually refers to Mr O’Reilly as an occupier for the purposes of insurance, he cannot now say that he is not an occupier, particularly as he is the holder of the licence by virtue of the Transfer of the licence to him by virtue of this agreement. Equally, Calla has accepted that as a matter of fact the bouncers were their employees. I am satisfied therefore that the liability to the plaintiff is one which is joint and several. The plaintiff ought to be entitled to recover from either defendant, and the paying defendant will be entitled on the basis of joint ands several liability to recover appropriately from the non-paying defendant.
As far as the facts giving rise to the injury to the plaintiff is concerned, I make the following findings of fact. The plaintiff and some of his friends were lawfully upon the premises on the occasion having been admitted, even though the plaintiff and possibly some of his friends were barred. I have no doubt that the disturbance at the cloakroom was orchestrated by the plaintiff and that the security staff at the entrance were entitled to remove the plaintiff in the manner they did prior to closing the double doors. I am satisfied that the plaintiff then orchestrated further disturbance from outside which commenced with the kicking of the doors and the shouting of abuse, and I am also satisfied that this initial disturbance led inevitably to the wider disturbance which resulted in the hurling of missiles of various kinds at the premises and which resulted in some damage to windows. In my view up to this point, it is on the balance of probabilities reasonable to attach full blame to the plaintiff, who I am satisfied was the ringleader of what occurred, although I am not fully aware of what grievance he had that night having been allowed remain in the premises, or why so many people outside the premises would have seen fit to join him in his violent exploits outside. It was not simply the few friends he was with. I am satisfied that up to 25-30 persons may have been involved.
The evidence of what happened after the bouncers emerged from the small side door is less clear. There is conflicting evidence which has been given by each side. In addition some of the evidence given in court by the plaintiff and his eye witnesses is inconsistent in at least some respects with what they may have stated to the Gardai when they made their statements. Indeed if it were not for the undoubted fact that the plaintiff attended immediately at St. Vincent’s Hospital that night and for the evidence of Mr Cassidy as to the serious nature of the injury and that it must have been inflicted by a heavy blow from a blunt instrument, this Court may not have been able to be satisfied to the degree necessary that the injury was sustained in the scuffles that took place outside these premises. But it is the independent evidence of the injury itself, the manner in which it must have been inflicted and the fact that the plaintiff was immediately brought to the hospital which satisfies me on the balance of probabilities that he was injured by a heavy blow to the face outside the premises. The remaining question is who may have inflicted the blow given the sworn evidence of some of the men who formed part of the security team on this night that none of the men used weapons of any kind. It is not possible to reconcile that evidence with the objective evidence of injury. I accept the evidence that it was not management policy that weapons of any kind should be available for use or used at the premises. But I am not satisfied that the suggestion that the plaintiff may have sustained his injury from a flying glass or other missile, rather than from a blow delivered by one of the security staff, given the very clear and convincing evidence from Mr Cassidy that this injury must have resulted from a heavy or severe blow from a blunt instrument. While I cannot go so far as to accept everything that was said in evidence by each of the witnesses called by the plaintiff, I am sufficiently satisfied on the balance of probabilities that at least one of the bouncers must have had a weapon even if he ought not to have under the management guidelines. There is no other plausible or reasonable explanation for the injury to the plaintiff which I am satisfied was inflicted outside these premises.
Another matter to be addressed is whether in the circumstances which have been described the actions of the bouncers were justified in the sense that if the plaintiff was injured in the way he was, whether those actions constitute more than reasonable force, and therefore amounted to negligence, and whether the claims of negligence as made out in the Statement of Claim are properly made out. In my view the owners/occupiers of a premises such as that in this case are reasonably entitled to employ suitably trained staff in order to ensure as reasonably and lawfully possible the business of the premises is conducted in a proper fashion, and that the safety of those who patronise the premises, as well as those who work in the premises, and the premises themselves are properly safeguarded against violent or other improper conduct by other persons. The owners and occupiers of the premises are also obliged to ensure to a reasonable extent that the said staff members are supervised in the sense that there is some management control and guidance as to how they carry out their duties. It is alleged in this case that the first and second named defendants failed to employ competent security staff. I do not find that plea made out. The only evidence which I have heard satisfies me that the staff concerned were experienced and that the manager provided appropriate guidelines.
It is also pleaded that that they failed to adequately or at all supervise the conduct of the security staff on this occasion. Again, there appears to have been a management presence at the entrance area on the night in question.
It is pleaded also that the defendants:
“caused allowed or permitted the said servants or agents acting for and on behalf of the defendants on the occasion to act in a violent, aggressive, bellicose, threatening and intimidating manner on the occasion and to assault and beat the plaintiff as occurred on the dates in question.”
The relevant plea contained in the Defence delivered is that contained at paragraph 9 in which it is pleaded that:
“the staff present used no more force than was reasonably necessary in the circumstances to defend themselves, their colleagues, the premises and other patrons.”
The defendants have also pleaded contributory negligence on the part of the plaintiff on the basis that he was violently attacking the premises and was violently attacking members of the staff and was “engaging in behaviour whereby it became essential for the members of the staff present at Marley’s Club to protect themselves and others from assault.”
I should perhaps at the outset deal with the plaintiff’s plea in the Statement of Claim that the defendants are in breach of statutory liability to him by virtue of failing to comply with Section 3 of the Occupiers Liability Act, 1995. Section 3, subsection (1) of that Act provides that an occupier of premises owes a duty of care towards a visitor, except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5. Section 3(2) provides that this duty is to take such care as is reasonable in all the circumstances to ensure that a visitor to the premises “does not suffer injury or damage by reason of any danger existing thereon.” It is important to note that the word “danger” is defined in Section 1 as meaning “in relation to any premises, means a danger due to the state of the premises.” It must follow from this that the plaintiff’s claim is not one coming within the duty of care imposed by Section 3 as the allegations of negligence are not related in any way to the state of the premises but rather the behaviour of the bouncers on the night in question. It is necessary to consider this claim by reference to the more usual non-statutory criteria in relation to the possible breach of the common law duty of care owed to the plaintiff by the owners/occupier of the premises, diluted possibly by the contribution which the plaintiff’s own behaviour made to what befell him at the hands of their employees, servants or agents.
As I have stated the defendants are perfectly entitled, indeed it could be argued that they would be obliged, to employ suitably trained and supervised security staff, bearing in mind the nature of the premises to which they admit their patrons, namely a night club where the sale of intoxicating liquor is sold, and a large number of persons are in all likelihood going to congregate, in order to ensure that the safety of the patrons, staff and the premises is safeguarded. In this case there is no doubt in my mind that since the plaintiff gained admission and his presence there was at least permitted throughout the evening, the necessary relationship of proximity exists for the purpose of establishing the duty of care. The fact that he had been barred previously and ought not to have gained entry is irrelevant since he was known to be there and was observed throughout the evening. A decision was apparently taken that he would not be removed.
It is trite law that these security staff members are not entitled to use more force than is reasonably necessary in any particular circumstances which might present during the evening. Each case will have to be considered on its own facts, since the variety of situations giving rise to intervention by security staff in this type of premises is infinite. But the requirement to use only reasonable force never disappears. It is beyond doubt that it is reasonably foreseeable that an excessive use of force by staff of this nature has the potential to cause injury to others. The next hurdle to be overcome under the test for liability as pronounced by Keane CJ in Glencar Exploration Limited v. Mayo County Council [2002] 1 ILRM 481 is to exclude any public policy consideration which ought to exclude liability arising. In my view there could be no public policy consideration which should result in no duty of care being owed by employers of security staff to members of the public in the circumstances of facts such as have occurred in this case. In fact the opposite would be the case, since a situation would then exist in which security could go about their tasks with complete impunity regarding the level of force they might use, and in effect a situation would exist where it was permissible for the owners of licensed premises and other such premises to hire their own private army in order to enforce their version of law and order. That could never be acceptable. The final hurdle to be overcome by a plaintiff under the Glencar principles is that the Court must be satisfied that it would be fair, just and reasonable that the law should impose a duty of care on the defendants for the benefit of the plaintiff in this case. That consideration is for the purpose of this case quite closely linked to the public policy consideration, and there is also some blurring between consideration of that concept of fairness and reasonableness and the concept of any contributory negligence on the part of the plaintiff. One could consider the concept of fairness, justice and reasonableness also from the point of view of the ‘ex turpi causa’ principle. In other words, the actions of the plaintiff as proven in this case are so egregious that he ought not to be allowed to recover damages for an injury sustained which results from that behaviour.
The latter methodology must in my view be reserved for the very worst type of behaviour in order to serve the punitive purpose of denying an injured plaintiff any remedy for otherwise culpable behaviour on the part of a defendant. I believe that in the present case it is fair, just and reasonable that the defendants remain under the duty of care towards the plaintiff and other patrons even in the unpleasant and potentially dangerous circumstances which arose outside the premises on this night. The whole purpose of the job of being security staff member is to deal with situations which arise in premises of this kind and which cannot be reasonably dealt with by what I might conveniently describe as ‘ordinary staff’. It is part of the normal working life of such security men to encounter patrons in various states of intoxication, and who even when not intoxicated, are nevertheless aggressive and sometimes violent. Such staff ought to be, and in most cases, are trained to deal efficiently with such situations. It is perfectly fair, just and reasonable that such persons should carry out their duties in a way which is consistent with a reasonable use of force and restraint, and I can see no reason why any special dispensation should be extended to them in the manner in which they carry out their tasks.
I am satisfied therefore that a duty of care was and ought to be owed by the defendants and their servants and agents towards the plaintiff, and that this duty extended to avoiding causing injury to the plaintiff through an unreasonable or unnecessary use of force or violence in dealing with the situation which existed outside the premises in the car park. In this case, a decision was taken at some stage that the appropriate action to take was to allow the bouncers to run out of the side door and get in amongst the crowd outside and disperse them. In my view the appropriate course of action was to contact the Gardai and to wait for them to arrive in order to deal with the situation. In the present case that was done according to the evidence, but the management did not wait for the Gardai to arrive. This was not a disturbance within the premises themselves. It was a disturbance outside. The staff of the premises were inside the premises, and even though there may have been some shouting and kicking of the doors, and even a couple of windows broken, it does not seem to me that it was appropriate for the management to send out their own troops, so to speak, in order to break up the disturbance. That action led to direct confrontation between the troublemakers outside and the security staff and it was inevitable that somebody would be injured.
In the case of the plaintiff, as I have said, I am satisfied on the balance of probabilities that he was the ringleader of the trouble which happened. As such he would have been the object of the Garda attention following any complaint by the defendants when the Gardai arrived. The fact that he may have been the instigator of much of the disturbance does not mean that the security staff can single him out in any way or treat him with more than reasonable force. There is no doubt in my mind that it was an unreasonable use of force to hit him so severely in the face with some sort of heavy blunt instrument that he has effectively been rendered blind in his right eye. I am satisfied that this is how the injury was sustained. Even if a security man did not intend to cause an injury of that magnitude, it matters not. It was a reckless, negligent and dangerous act committed after the security staff had taken the inappropriate step of going out to themselves deal with the trouble outside, rather than allowing the members of An Garda Siochana to arrive and intervene. What happened amounts to negligent behaviour giving rise to a right of recovery on the part of the plaintiff.
However, the plaintiff has to share in the responsibility for what happened to him that night. His involvement, as found by me, amounts to contributory negligence. The question as always is to what degree. One is more accustomed to assessing contributory negligence in the context of a car accident or an accident at work. In such cases it would be unusual to make a large deduction on account of contributory negligence, because in most cases the element of contributory negligence arises due to perhaps not wearing a seat-belt, exceeding a speed limit, failing to observe an on-coming car and so forth. What I am trying to convey is that in such cases the plaintiff is guilty of relatively minor negligence not worthy of being severely marked by a large reduction in damages. In the present case the plaintiff’s behaviour is of a different character. It was criminal behaviour such as should not be implicitly condoned by a sympathetic approach to contributory negligence. It cannot be equated to the type of contributory negligence more commonly found in road accidents or workplace accidents. It is culpable behaviour for which the plaintiff must retain responsibility. In my view, even though the defendants are liable to him for an unreasonable use of force, and even though the Court feels great sympathy for the fact that the plaintiff has now only the use of one eye, he has himself to blame to a significant extent, and to an extent far in excess of the more normal type of case to which I have referred. In my view it is right to attribute to the plaintiff a finding of contributory negligence to the extent of 50%.
As far as damages are concerned, I assess general damages for the loss of sight in the right eye, and the scarring due to the blow received in the sum of €100,000. I take into account the fact that the plaintiff is a young man and that given the normal expectation of life, he could have to live with this disadvantage for about 50 years. His employment prospects have not in my view been affected adversely given his employment history to date, and it has not been urged upon the Court that such ought to be taken into account in any specific way.
Allowing for the finding of contributory negligence, I therefore give against the first and second defendants for the sum of €50,000, and the usual order for costs, to include all reserved costs, to be taxed in default of agreement.
O’Connor v. O’Driscoll
[2004] IEHC 19 (23 February 2004)
O’Connor v. O’Driscoll [2004] IEHC 19 (23 February 2004)
Judgment delivered by Ryan J. on the 23rd February 2004
The plaintiff Mr Paul O’Connor is married with three children. He lives in Cork. He is by occupation a senior bank executive with Bank of Ireland. He was born on the 3rd June 1951 so he is now aged 52 years. He sustained injuries in an accident on the 14th September 1997. Liability is not in issue and the action is accordingly an assessment of damages.
The case is highly unusual. The physical injuries sustained by the plaintiff were soft tissue damage to his neck and low back as well as some relatively minor damage to three upper teeth on the left side. The plaintiff in addition to these physical injuries also underwent a severe psychological reaction to the accident. Within a few weeks of the accident he developed a very serious Post-Traumatic Stress Disorder. He has also suffered from a major depressive illness and his condition has been complicated by generalised anxiety disorder.
The combination of physical and psychiatric illness which continues to afflict Mr O’Connor has had a devastating affect on his health and well-being. He has not worked at the bank or at all since the 27th January 2003. He suffers severe physical pain and discomfort. He is depressed. His Post-Traumatic Stress Disorder continues more or less unabated. The prognoses for his various aliments are gloomy. He is not going to be able to get back to his banking job or even similar work. It is going to take some considerable time before there is a prospect of any work on the horizon.
There is no serious dispute among the doctors. The plaintiff’s experts are his General Practitioner Dr Frank Matthews, a Consultant Rheumatologist Dr Mark Phelan and a Consultant Psychiatrist Dr David Walshe. These are his treating doctors. He also attended a vocational expert Dr Martin Hogan for assessment. The defendant’s doctor was Dr David Dunne, Consultant Psychiatrist. There is no significant area of disagreement between these experts.
Having regard to the evidence and to the submissions, the following matters are not in dispute in this case:-
1. The plaintiff was an ambitious and highly successful bank executive prior to this accident;
2. He had and has enormous drive and thirst for success and his personality is A1 or alpha male to a very high degree;
3. In the accident, the plaintiff sustained soft tissue injuries to his neck and low back as well as minor dental damage as mentioned above;
4. He also suffered a severe Post-Traumatic Stress Disorder which manifested itself within a number of weeks of the accident;
5. The plaintiffs problems affected his work to the extent that he was unable to work as successfully as he had before the accident and he had difficulties with pain, discomfort and loss of concentration as well as nightmares and other Post-Traumatic Stress Disorder symptoms;
6. As time went on, the plaintiff’s conditions worsened. Stress and tension also increased because of life events and changes at work, which the plaintiff would in normal circumstances have been able to overcome but which he now found too much for him;
7. The physical and psychological conditions waxed and waned over the years since the accident but the general pattern has been of deterioration;
8. The physical problems and the psychological condition are inter-reacting in a very adverse way for the plaintiffs physical and mental health;
9. Mr O’Connor is now diagnosed as having Chronic Post-Traumatic Stress Disorder, which has no more than a prospect of improvement and which is also accompanied by depression;
10. The physical problems similarly appear to be of a chronic nature;
11. The plaintiff will not be able to go back to work either with his former employer Bank of Ireland or even in the banking or financial sector;
12. Because of the injuries physical and psychiatric and their consequences the best prospect for the plaintiff is that he may be able to do some kind of light, sedentary work but he is going to have immense difficulties in getting a suitable job;
13. The plaintiff is as a result deprived of his earning capacity in his former employment, in which he earned approximately €85,000 per annum. He is now on half pay, which will come to an end on the 31st March 2004, after which he will have no income from the bank.
It is clear in the circumstances that damages in this case are going to be very substantial.
In this judgment, I propose initially to review the plaintiff’s evidence, then to consider the medical evidence, then to look at the evidence concerning the plaintiffs earning capacity before and after the accident, then the vocational and actuarial evidence and, finally, the issue of damages.
The Plaintiff’s Career
Mr O’Connor joined Bank of Ireland after leaving school in 1968. He worked as a bank official in the Waterford, Kilkenny and Carlow area for some 17 years. He returned to his native city Cork with the status of full manager, at the age of 36. His job at that time was systems manager travelling counties Waterford and Cork. In 1989 he won promotion to the position of Area Superintendent Manager. Two years later he was promoted again and after a similar period, he was elevated to Area Operations Manager in 1993. In 1996 the plaintiff was seconded to Irish Civil Service Building Society as area manager for a period of some 15 months. In 1997, shortly before the accident, the plaintiff was offered a new position. This was a two-year posting to be the head of a new mortgage venture called TMB, which had been set up by Bank of Ireland and which was based in the IFSC in Dublin. Mr O’Connor had not decided to take this job at the time of the road accident on the 14th September 1997. While though I do not think the matter is important, for what it is worth it seems to me that it was likely that the plaintiff would indeed have elected to take up this new posting.
Mr O’Connor was stopped in a line of cars at Silversprings, Cork when the defendant crashed into the rear of his car. The collision was heavy. The plaintiff felt a severe impact. He said that there was “a massive explosion”. The driver’s seat was broken and Mr O’Connor was thrown forward and to the left. He was initially very shocked and was also worried for his wife who was a front seat passenger.
After the accident, Mr O’Connor had pain in his low back and his neck. He had bruising of the legs from knees down to his feet. He suffered damage to his teeth in the form of two pieces which were broken off from upper left 4 and upper left 5 and a chip which broke off upper left 3. The plaintiff said that he felt pain everywhere including his testicles.
The accident happened on Sunday afternoon. Mr O’Connor went into the office on the following day and continued at work until the 9th October 1997. His pain and discomfort persisted and he took over the counter medication but he did not seek professional help until he went to his physiotherapist on the 6th October 1997. During the post accident period the plaintiffs physical problems continued in that he had ongoing pain and discomfort of the neck and back and within two or three weeks he began to suffer nightmares. He says that he avoided going to bed at night, which I take to mean that he put off doing so until the early hours of the morning. The nightmares focussed on death. On the 6th October 1997 he went to a physiotherapist Ms Mary Mensenkamff and he continued to attend her until December 1997, during which period he had repeated sessions of physiotherapy. He originally thought that he had had 36 sessions but subsequently agreed that 15 was the correct number. The plaintiff prior to the accident had suffered from back trouble. He said that he would have episodes some three or four times a year which would keep him in bed for a couple of days but he was not out of work prior to the accident because of his back and indeed had a very good work record. On the 9th October 1997 the plaintiff attended his General Practitioner Dr Frank Matthews, who prescribed analgesia. He visited the doctor again on the 7th November 1997 and also on the 5th December 1997. From early October 1997 the plaintiff was out of work for some four months. Dr Matthews saw him in early December and recommended that he go back to work.
During his period of absence from work, the plaintiff found that his neck and back were very sore and did not change very much. He lived a very inactive life except for periods when he was having physiotherapy. He said he was very despondent and did not improve. He had prior to the accident been a very keen and competitive tennis player and the tennis club was a major part of his life.
In mid-December 1997 the plaintiff notified the bank that he would indeed take up the new job. It was of course a major challenge. He was keen to get back to work and this job offered flexibility and he knew that he had good support people working in TMB. He was in charge of over 300 people and the work entailed driving long distances around the country. His normal pattern of work was that he would be at home in Cork at home for the weekend and also on a Monday, and the other days he would be in Dublin or anywhere else in the country. He drove a great deal – his annual mileage was about 29,000. He said that the only time he got peace was when he was driving. His neck and back continued to trouble him but he was able to minimise the problems by carefully managing his diary, by using a leisure centre a few times a week and by walking on soft ground. He had been given back and neck exercises by the physiotherapist but eventually he had to stop them because they hurt too much.
Mr O’Connor described his time with TMB as being satisfactory for the bank but not for him. By this he meant that his performance in the job was less than he demanded of himself or indeed thought of as his capacity. Having said that, while he believed that the bank regarded his performance as satisfactory or acceptable, it was in no respect exceptional and Mr O’Connor’s view was that it would have to be in his own words, “an Oscar winning performance” for his work in this job to have qualified him for the next level of promotion that he was aiming at.
The TMB job ended in March 2000. There was at the time a big reorganisation going on at the bank and it would have been Mr O’Connor’s intention to apply for one of the 48 senior, executive jobs that were available in the reorganisation. He did not apply for one of those jobs because he knew perfectly well that he had no chance of getting one. His two-year stint in the IFSC had simply not been up to the appropriate standard. In addition, my impression is that Mr O’Connor was not feeling sufficiently full of enthusiasm and capacity to be able set his sights on one of these jobs. As of March 2000 he was finished with his secondment and the next step was for him to come back to Cork. It was explained by Mr O’Neill the plaintiff’s supervisor that the only job that was available was as second in command in Bank of Ireland Private Banking in Cork. Mr O’Connor did this job from June 2000 for one year. In April 2001, the head of Private Banking in Cork resigned and the plaintiff secured the position, but only after a lengthy and gruelling interview process and perhaps somewhat against the odds or expectations of senior management in the bank. The plaintiff did not regard this as promotion however because there was no increase in pay or as he saw it in status.
In January 2001, Mr O’Connor saw Dr Phelan, Consultant Rheumatologist and Dr Walshe, Consultant Psychiatrist for the first time. It was clear at this stage that his General Practitioner was of the view that the plaintiff’s condition was sufficiently worrying to warrant specialist intervention both in respect of the physical and psychiatric aspects.
The plaintiff said that he got through to Christmas 2001 with difficulty. He continued to suffer with his neck and his low back and also with the nightmares and other psychological features. He had increased pain when he was under stress. Mr O’Connor said that he had a very helpful personal assistant and he was extremely careful. “The least thing would make me mental”
During 2002, the plaintiff had problems at work. His evidence was that in normal circumstances he would be able to overcome these difficulties and indeed would thrive on them but now they were getting him down. He struggled on during 2002 but in August/September he had a severe regression lasting 7 weeks. This consisted of severe pain in the back of his head, pain in the neck, pain in the back, the pain radiated into all four limbs and his mind was in overdrive. Nothing helped the pain. He sought relief by lying on the floor at home. Looking back, Mr O’Connor said that he thought that he made a big mistake in staying at work instead of putting in a medical certificate and getting somebody to replace him. Mr O’Connor’s interpretation of Dr Phelan’s view in November 2002 was that he had lost his fighting spirit, which is more I think of a reflection of Mr O’Connor’s thinking than it is necessarily what Dr Phelan was saying. Mr O’Connor said, “I realised that day I was finished”. Lying at home on the floor crying was not the Paul O’Connor that he knew.
At this stage, at the end of 2002, the plaintiff was on a variety of drugs which the doctors prescribed and which were of some limited benefit.
The plaintiffs last day at work was the 27th January 2003. He felt then that he could not take any more. He believed that there was an exit mechanism in the form of a severance package and he now set about negotiating a suitable arrangement. From February 2003 the plaintiff has been engaged in efforts to achieve an acceptable severance package. His failure to get what he thinks is what he deserves having regard to his service with the bank is a further source of frustration and distress to Mr O’Connor. On the fourth day of the hearing of this case, Mr O’Connor returned to the witness box to say that he was hopeful even then that the package available to him from the bank and which had caused him so much distress and disappointment when it was offered might now be significantly improved. The relevance of that is that if some such agreement were to be reached to Mr O’Connor’s reasonable satisfaction, one could expect an alleviation of his symptoms and particularly of the bitterness that he feels towards his employers.
The plaintiff’s evidence in essence is that he suffered significant physical injuries in the accident. They are still with him. He also within a few weeks began to suffer nightmares, to which other abnormal psychological symptoms were added. He struggled on with difficulty in his new job for two years. Because of the physical and mental problems, his work suffered, although his capacity did not entirely collapse. The physical and mental problems worsened and in early 2001 he was referred for specialist care to a Rheumatologist and a Psychiatrist. He has continued under their care but despite their best efforts there has really been little in the way of improvement. His problems are chronic and disabling. The ups and downs of life in the bank would have been quite manageable to Mr O’Connor if he had been in normal health as he was pre accident. Similarly with life events such as the discovery of the illness of his son and his mothers death in November 1998. By late 2002 and early 2003, the plaintiff was quite unable to do his job and was suffering very severe symptoms in both the physical and psychiatric areas. Despite being out of work since January 2003 his condition has not improved. His efforts to achieve a reasonable deal in respect of severance from the bank have not proved successful and have added to his woes.
The Medical Evidence
I am scheduling to this judgment the dates of the various medical reports which were handed in to me during the course of the hearing. Dr Matthews, Dr Phelan and Dr Walshe gave evidence for the plaintiff. They are respectively his General Practitioner, his Consultant Rheumatologist and his Consultant Psychiatrist. During the course of their evidence, reference was made to each of the reports so the contents can be taken as evidence of the experts, in addition to their oral testimony. The defendant’s medical witness was Dr David Dunne, Consultant Psychiatrist, whose own report is also in evidence.
The medical evidence can be summarised as follows. The plaintiff’s personality is that of a highly motivated person with immense ambition and drive. He thirsts for success. He is intolerant of failure. Before the accident, it was clear that he was destined for high achievement in the bank. He thrived under pressure and lived for work and competition. Even his social life was consumed by a competitive urge, which was expressed in his tennis playing. The injuries he sustained were soft tissue in nature to the neck and low back as well as some minor dental damage. Soon after the accident the plaintiff began to suffer from nightmares and other features of Post-Traumatic Stress Disorder. After a period out of work of some four months he went back and took up a new challenge. He sought to put his illness behind him and made good efforts to do so. He was not motivated by a desire for compensation and in fact his disposition is rather hostile to seeking damages, a view which is held even more strongly by his wife. The physical injuries did not respond to over the counter medication which the plaintiff took for about a two-year period. During that time his Post-Traumatic Stress Disorder waxed and waned, sometimes showing significant improvement and generally being controlled by the plaintiff in that he managed his life and schedule with a view to minimising stresses and strains. He was also greatly helped during 1998 and 1999 by the fact that he was doing a lot of driving around the country, which he found particularly helpful. It was the only time he got peace, he said. Mr O’Connor sought help initially from his General Practitioner in October 1997. Dr Matthews was at that stage quite optimistic that the physical and psychiatric conditions were going to improve in the fairly near future. Following a two-year gap during which the plaintiff did not attend his doctor for any accident-related problems, he re-attended on the 30th November 1999. When there was no improvement over the months following, the doctor became increasingly concerned and in mid 2000 began to suggest that the plaintiff should seek specialist assistance. In November 2000, Dr Matthews arranged appointments for the plaintiff to see Dr Mark Phelan and Dr David Walshe in January 2001. The plaintiff was continuing to have physical and psychiatric symptoms which were causing Dr Matthews considerable concern. Mr O’Connor was having difficulty accepting that he had a problem of a kind that required specialist intervention. This, it seems, is a feature of somebody with Mr O’Connor’s type of personality. The Consultant Rheumatologist Dr Phelan is of the opinion that the psychological and physical problems are impacting on each other to produce a worsening of the plaintiff’s problems in each area. The psychological problems are retarding his improvement. He found that the plaintiff was having sensations of distress and palpitations bringing on physical discomfort. When he was at work, problems there brought on pain. Mr O’Connor was very aware of his condition and brought with him bundles of files and papers on visits to Dr Phelan. This suggests a type of person who is at this stage exhibiting a morbid almost obsessional interest in his problems, which is no doubt contributing to the overall picture.
I think that the plaintiff’s condition is summarised in the medical reports and evidence in the following quotations:-
Dr Matthews
“Mr O’Connor continues to complain of ongoing symptoms relating to injuries sustained in a road traffic accident. He suffers from a combination of physical and psychological problems … I think he was a bad subject for the accident in that his occupation was a stressful demanding one and his personality was such that it drove him to continue to attempt to perform at a high level to the detriment of his general health. His pain interfered with his ability to cope with the stresses of the job and indeed the stresses of the job caused his pain to be more severe. He is in negotiation with his employers attempting to get a mutually agreeable severance package. If he were to obtain this I think it would be beneficial to his general health in the long term. I feel the prognosis for the future is guarded. I do not see any significant improvement in Mr O’Connor’s symptoms over the last seven years. This applies to both his physical and psychological symptoms. I think the probability for a continuation of his symptoms is quite high”. – Report dated 5th September 2003 and confirmed in evidence.
Dr Walshe
“The impression is that Mr O’Connor continues to meet the criteria for Post-Traumatic Stress Disorder. At present he meets the criteria also for major depression which is very much a reaction to his deterioration and physical status in recent months. The Generalised Anxiety Disorder which is present has been subsumed by this depression and depression is a greater feature than anxiety at present. Overall his condition is very much as before and to date has failed to respond to psychiatric treatments. Prognosis: The prognosis is guarded in this man. This is largely due to his ongoing pain and physical disability and an improvement in his mental status would require a sustained improvement in these areas. Mr O’Connor would appear to have made every effort to overcome his pain and disability through his attitude and his activities and his strong desire to put this behind him and get on with his life. He has not in any sense fallen into an illness role but is struggling with recent deterioration in his physical status. From a psychological and psychiatric point of view I would expect that his psychotic conditions will persist unless he manages to get better pain relief. In the interim I will continue to undertake different treatment strategies for this condition. I recommenced Mr O’Connor on a different anti-depressant. Mr O’Connor will require ongoing psychiatric support to help him cope with this condition. – Report of 12th December 2002.
Dr Dunne
” In my opinion it is very clear that Mr O’Connor developed a very serious Post-Traumatic Stress Disorder which was present within two weeks of the accident.
…
After the accident, between his pain but most of all between the tension from his Post-Traumatic Stress Disorder when he was unable to work and at times didn’t want to have anything to do with people, the frustration of his basic drive to achieve also added to the tension of the Post-Traumatic Stress Disorder, with the result that in the end he developed quite a severe depressive disorder but fortunately one that he has come out of.
At the same time it has made it increasingly difficult for him to perform at work and at the level to which he was performing. He worked in very responsible situations. He enjoyed the responsibility. Now the anxiety and the greatly increased tension to which he is subject to makes it impossible for him to concentrate and also indeed to tolerate other people. This problem with tolerating other people is a direct consequence of the Post-Traumatic Stress Disorder but has probably increased by the frustration. He is now very intolerant indeed, intolerant to such degree that would make it very difficult for him to work with other people. Indeed, this could put terrible stress on him and he is already very stressed.
…
Yet, he didn’t recover he got worse and had to stop work. This is a clear indication of how serious the matter is in my opinion and how badly it is likely to do and that he is likely to be left to some degree the way he is and perhaps for the reminder of his life.
In other words he has a serious Post-Traumatic Stress Disorder which is now a long-term one and unlikely to respond to treatment. In turn because of his need to do things very correctly and to succeed and be a winner when added to the Post-Traumatic Stress Disorder, means that it is virtually impossible for him to do his job or to continue to do it in other practical terms or because the stress would be so detrimental to his health. Such is my opinion”. – Report of 12th January 2004.
Dr Phelan’s view was that there was a combination of psychological and physical symptoms impacting on each other. The psychological element was not so over-bearing in the early stages but at the latter end it began to dominate in his opinion.
The defendant’s expert Dr David Dunne, who is a Consultant Psychiatrist, examined the plaintiff in the course of a long interview on the 8th January 2004. He agrees with the diagnosis that the plaintiff is suffering from Post-Traumatic Stress Disorder. He also agrees that he had a major depressive episode some years back and that he is still in a depressive condition. As to the future, his view is that the Post-Traumatic Stress Disorder will take a very long time to clear up, if it ever does so. The plaintiff’s personality he found was of a highly strung, competitive and proud person. Mr O’Connor was angry because of his demotion from competing in a higher league to a lower one. He also had issues relating to his treatment by the bank on the question of severance. Dr Dunne’s view was that the plaintiff’s tension and anxiety will improve even if the Post-Traumatic Stress Disorder remains. When the litigation comes to an end and when there is a solution to the severance issue with the bank, there will be a reduction in tension. This will mean that the plaintiff can cope better with his Post-Traumatic Stress Disorder. The plaintiff in Dr Dunne’s view had integrity and self-knowledge. He saw the possibility that he might be able to do a job as an independent advisor in regard to finance or something of that kind. Dr Dunne was careful, however, to add that the plaintiff at present “certainly could not do” such a job. He like the other doctors was very much in favour of employment for the plaintiff. However, he was not in favour of that at this moment because he thought that the plaintiff was not capable of doing so. In cross examination Dr Dunne referred to an observation that he had made earlier, which was that the plaintiff’s personality was such that there was a risk of burn out as a person gets older. He said there was some risk of this happening before retirement, assuming that no accident had occurred. He did not of course say that this was a likelihood but merely identified the possibility. As to the future, he confirmed that he believed that the plaintiff would improve somewhat when the pressures of the bank severance and the litigation arising out of his accident were terminated. He believed that the plaintiff would be able to cope with his Post-Traumatic Stress Disorder. He was much less certain in regard to the latter condition, believing that there was a prospect but no more than that of the plaintiff getting clear of the disorder. He believed that the plaintiff could look forward to doing work as a self-employed person advising people about financial matters but he said that two years or more would be needed before he was in a condition to undertake such work. As to the present, Mr O’Connor lives a very restricted life which is full of tensions and Dr Dunne was of the view that he was clearly incapable of work at the present time.
For my part, I am impressed by Dr Dunne’s evidence and by the level of agreement there is in this case as to what is wrong with the plaintiff.
Issues
There is as I have said no issue in regard to the medical evidence. One may find nuanced points which reflect some minor variations but the overall picture emerging from the medical evidence is agreed, clear and bleak.
A question that was canvassed in the course of cross-examination of the plaintiff was whether he had failed to mitigate his loss by opting for a psychiatric treatment at an earlier stage. It will be recalled that Dr Matthews was considering specialist consultation in respect of his Post-Traumatic Stress Disorder in mid 2000. In addition, when the plaintiff attended Dr David Walshe in early 2001, he was hesitant at first to take medication and unwilling to undergo counselling. His reluctance to undergo either of these therapies is explained in different terms by the plaintiff in his evidence and by Dr Walshe in his evidence and reports but I do not think it matters greatly which explanation is correct. Dr Matthews and Dr Walshe made clear that they were not urging or persuading the plaintiff to undergo this treatment. They regarded his attitude as being reasonable and were of course respectful of the plaintiff’s entitlement to choose, particularly in regard to psychiatric treatment. His rational was understandable, as it seems to me and the doctors were of the same view and the position was not so black-and-white even to Dr Walsh, who understandably did not want to oversell the benefits of the therapy he was recommending. In the circumstances, I do not think that the plaintiff cannot be faulted for hesitating to undergo either drug therapy or counselling or even for rejecting the idea of counselling. I also think that the medical evidence is clear that the plaintiffs personality was such that it would have been difficult for him to accept that the problem was as large as we now know it was becoming.
My conclusions on this point make it unnecessary for me to consider whether a specific plea in respect of failure to mitigate loss would have been necessary.
Another matter that was raised in cross-examination was why the plaintiff had not sought medical treatment for his injuries, in the period between the 5th December 1997 and the 30th November 1999. I think that the evidence of the plaintiff is essentially endorsed by the doctors in this respect. They accept that the plaintiff was trying to put the complaints behind him by working and by managing his time and his activities in such a way as to minimise the problems. His job enabled him to have a considerable degree of flexibility and to drive long distances which oddly enough he found to be therapeutic.
In all the circumstances, it seems to me that the plaintiff’s account of the history of his illness is essentially correct. Any inconsistencies that exist, and they are small, seem to me to be quite unimportant. As I have said a number of times in the course of this judgement, the medical evidence is to the same effect. I think that is a tribute to the personnel involved and it makes my task a great deal easier than might otherwise have been the case.
Job Prospects
It is agreed all round that the plaintiff cannot return to Bank of Ireland. I accept also that he is not suited to going back to some similar type of work with another employer. My reasons for saying that are the views of Dr Matthews, Dr Walshe and Dr Dunne, fortified as they are by the evidence of the vocational experts Dr Hogan and Mr White for the plaintiff and Ms Horgan for the defendant. It is true that the defendant might get some comfort in the evidence and reports of Dr Phelan but I do not think that that amounts to a basis for deciding that the plaintiff has any capacity to return to work of a similar kind to any of the various jobs he was doing in Bank of Ireland.
I accept Dr Dunne’s evidence that the plaintiff is not going to be able to work at all for a minimum of two years and probably for somewhat longer than that. At that stage, I believe that he has the capacity to work in a meaningful way. He will not be able to do a job which subjects him to stress but I think he could contemplate some kind of work probably along the lines suggested by Dr Dunne which would involve giving financial advice in a relatively stress-free situation. It is of course impossible to be exact about this and one has to do the best one can in seeking to assess the probabilities. My view is that the plaintiff could expect to be able to do work of that kind and probably that he could earn €500 per week or somewhat more, but in accordance with the medical evidence I do not think that he will be able to do such work for some two to three years.
The plaintiff himself raised the possibility that he might be in the position to do a driving job, moving lorries or cars. He said he always had an interest in this business and had found driving to be a peaceful and somewhat therapeutic activity even in times when he was quite troubled by his physical and psychiatric problems. I have to say I rather agree with Mr White that the prospects of the plaintiff actually getting such a job seem to me to be remote. But even if I am wrong in that, I do not think that the earnings would be a great deal different from what I have suggested and I also think it is clear that the plaintiff would not be able to contemplate such work for a number of years.
Reddy v Bates
An issue arises as to the application of the principles enunciated by the Supreme Court in the case of Reddy v Bates. Mr Creed S. C. for the defendant submits that some account should be taken in the consideration of the claim for future loss of earnings and other benefits of the possibility that Mr O’Connor might have suffered burn out or some similar psychological crisis, even if there had been no accident. Mr O’Driscoll S.C. for the plaintiff argues that before such a reduction could be considered to be appropriate, there would have to be specific evidence relating to the plaintiff to suggest in some particular way that he was vulnerable to some such illness or crisis. My view is that if there is evidence to show that the plaintiff would have been at risk in the absence of an accident, that is a feature that is particular to that case and must be reflected in the assessment of damages in proportion to the scale of the risk. The Supreme Court did not intend in Reddy v Bates and other cases to give an exhaustive list of the matters that are to be taken into account in considering future loss of earnings. The principle is that life’s uncertainties and exigencies have to be taken into account in general terms so as to modify the certainties implied by actuarial calculations, which are based on the assumption that events will progress to a particular date without any disruption or interruption. If there are particular circumstances in a case, then they obviously must be taken into account.
In this case, the principle in Reddy v Bates has application. Apart from the basic and general principle, one has particular features in the nature of Mr O’Connor’s personality, the high stress levels to which he was exposed and the different kinds of job in the Bank of Ireland network which he was asked to do. As he progressed upwards in the banks management structure, I think it likely that the stresses and strains would have increased. These factors make very real the possibility expressed by Dr Dunne of burnout, which I understand to be a psychological crisis which would have rendered Mr O’Connor either incapable of continuing to work or much less capable of doing so.
Damages
The plaintiff if he had been able to continue in his job in the bank would be entitled to a lucrative package of salary and benefits which will soon come to an end. Any alternative income is going to be greatly reduced and there will not be extra benefits available to him. There is little disagreement between the actuaries in the approach to calculating the plaintiff’s loss of earning capacity in the future.
Mr O’Connor’s basic earnings are €87,551 per annum. He is in addition entitled to bonus payments annually as appropriate. On the basis of the most recent figures, his actuary Mr. Lynch took a figure for bonus payment of €13,000. That makes a total of €100,551. The net weekly equivalent is €1,264. Applying the appropriate multiplier which is 411 gives a capital sum of €519,504. If a smaller figure of – say – €5,000 were to be allowed for bonus, the result is a capital sum of €484,148. Because of bonus variability, I think this figure should be taken as €500,000.
The plaintiff will have a loss of share bonus ranging from a little over €14,000 to almost €25,000 depending on the percentage of basic pay which is allowed by the bank in each year. I propose to take a figure of €20,000 here on the basis that there is no clear evidence as to whether the lower or the higher figures is likely to turn out to be correct.
The loss of the plaintiff’s company car is capitalised at €40,934.
The plaintiff will suffer a loss in his pension. Normal retirement age in the bank is 62 years. Mr. O’Connor has a choice. He can wait until age 62 and then take up his pension but he is going to have a loss in that he will receive less per annum in pension payment than if he had worked out his time until age 62. The alternative is that he can take a payment starting on his departure from the bank and this would be €24,032 per annum of which the net weekly equivalent is €453. If he does this, the result is that his payments from age 62 are of course even further reduced. If Mr. O’Connor opts for the immediate payment on an annual basis of €24,032 his loss under this heading of pension entitlement is €202,730. If, on the other hand, the loss is to be calculated on the basis of a pension taken up at age 62, the amount is less than half that sum. Mr. Lynch calculates this alternative loss basis as €97,485. The defendant’s actuary Ms Frances Kehoe calculates it at €63,000. The reason for this discrepancy is the basis of calculation, as to which the actuaries gave evidence. On that dispute, I accept the evidence of Mr. Lynch and so I take the appropriate figure here to be €97,485 if the lesser quantum of loss is to be allowed. My view is that it is. While the plaintiff may very well opt for the immediate payment which will ultimately result in a greater loss, I think that is a matter of choice for him. And I do not think that he can increase the defendant’s liability to compensate him by simply deciding that he will take the immediate payment.
There is a loss in respect of death benefit calculated by Mr. Lynch at €27,281.
The total of all these sums is €685,700. From this must be deducted the capitalised value of Mr O’Connor’s residual earning capacity. I propose to take a figure of €500 per week as the basis of calculation, which nets down to €454. But he is of course not going to be able to do such work for a period of two years at least. If one were to take earnings of that weekly amount up to age 62, the capital value would be €191,588. I think that €150,000 is appropriate here because of the time lapse before a return to work can be envisaged. The sum of €685,700 must accordingly be reduced by this €150,000 and the result is €535,000.
Having regard to the evidence of the psychiatrists and particularly Dr. Dunne as to the risk of burn-out in a person in the plaintiff’s position, the evidence of the severe stresses to which his work exposed the plaintiff, the evidence of his own personality with its high demands made on himself, his perfectionist tendencies and intolerance of failure, a substantial reduction has to be made by reason of Reddy v. Bates. I make a reduction of a sum that is between one-quarter and one–third in order to take account of these risks and uncertainties, which brings the €535,000 down to €380,000.
The plaintiff is going to need some medical care and medication into the future. In respect of these various items which are dealt with at paragraph 8 of Mr. Lynch’s report, I do not propose to deal in detail. My general approach is that the plaintiff is entitled to payment for his estimated reasonable medical expenses in the future but I do not think it is reasonable to allow any significant amount for treatment for the rest of the plaintiff’s life. Neither do I think there is any basis for allowing physiotherapy for a similar period. I do not believe that the plaintiff is going to have to attend his General Practitioner or indeed his consultants for the rest of his life arising out of this accident because I think that his position is going to stabilise albeit unfortunately in a lessened condition. I do not allow the claim for a special chair to be replaced every five years for the rest of the plaintiff’s life. Any approach to this issue is speculative to a degree but I think a reasonable figure here is €30,000.
The plaintiff has suffered a loss in respect of wages and bonus payments since he has been on half pay. I allow €11,500. In addition special damages are agreed in the amount of €7,725.
General damages must be added. Mr. O’Connor has had a miserable time since this accident. The evidence is clear as to his gradual deterioration, especially following his return from the TMB venture in Dublin. He is going to have continuing trouble into the future, albeit it at a lesser level and one which he is likely to be able to contain or control. In this respect I award €100,000 for past pain and suffering and €50,000 for the future.
My calculations make this a total of €579,225 and I propose to give judgment for that amount.
Schedule: Medical Reports
Dr Frank Matthews
9th December 1999
20th July 2000
22nd January 2001
15th October 2001
17th September 2002
5th September 2003
Dr David Walshe
10th April 2001
2nd January 2002
19th February 2002
12th December 2002
Dr Mark Phelan
26th February 2001
11th March 2002
8th November 2002
20th August 2003
Dr David Dunne
12th January 2004
McEneaney v Monaghan County Council
[2001] I.E.H.C. 114, O’Sullivan J.
JUDGMENT of O’Sullivan J. delivered on the 26th day of July, 2001
INTRODUCTION
1. The plaintiff was born on the 9th December 1972 the second of six children of Seamus and Helen McEneaney of Castleblaney, Co. Monaghan.
2. When aged 15 the plaintiff got a part-time job in a garage, he became an apprentice mechanic in 1989, qualified in 1993 and started to work as a mechanic from home and then got a job driving a delivery van around the north east of the country.
3. He is of a sociable disposition, interested in sports particularly the G.A.A., where he trained regularly twice a week with the junior club and played a match once a week; he was interested in motor sports.
4. In the beginning of 1994 he met Maeve McCaughey and they started going out together once or twice a week. On the evening of Sunday the 13th February, 1994 they decided to go out to celebrate the eve of St. Valentine’s Day and the plaintiff collected
5. Ms. McCaughey at between 6 and 7pm having travelled some twelve miles to her home at Castleshane outside Castleblayney. They went to the Glencairn Hotel, later to the Spectrum Pub and later again back to the Glencairn where there was a disco which went on to 2:00 or 2:30am. The plaintiff and Ms. McCaughey left about an hour before that, however, because
the plaintiff had to work the next morning. It was a cold night and he set off to drive
6. Ms. McCaughey to her home at Castleshane travelling in the Monaghan direction. As they were travelling he had to slow down to pass through a line of cones which he did without difficulty and then resumed his speed travelling in a northerly direction on the newly surfaced national road between Castleblayney and Monaghan. As he approached a fast super-elevated bend to his left, his car suddenly went out of control having skidded on a patch of ice, travelled across the centre of the road, across the oncoming carriageway, the hard shoulder, the soft shoulder, through a fence and eventually hit a tree. While it was careering across the road it went through a turn of approximately 180 degrees so that the impact with the tree occurred at the right hand rear corner of the car. The plaintiff was found facing down some 10 feet further on away from the car and most likely was catapulted backwards out through the rear window. His passenger Ms. Caughey was found hanging by her seat belt, the car having come to rest on its left side. The plaintiff was not wearing a seat belt.
7. The plaintiff sustained catastrophic injuries as a result of this accident. His spinal cord has been severed between the fifth and sixth thoracic vertebrae resulting in complete paralysis below the level of the nipples of his chest with the inevitable tragic paraplegia, loss of all sensation and useful movement below this level, loss of control of bladder and bowel function, loss of sexual sensation and meaningful function and continuing vulnerability to injury including pressure sores to the lower portion of his body. In this context fractures to his left jaw, breastbone and two ribs pale into insignificance. He was taken to Monaghan General Hospital and later the same day to the Mater Hospital in Dublin where he was noted to have sustained fractures to the laminae of his 4th, 5th, 6th and 7th thoracic vertebrae as a result of which a metal implant was inserted from his 1st to his 9th thoracic vertebrae. As a consequence of this catastrophic injury the plaintiff has, to the date of the hearing of this action in June, 2001 had more than seven years of almost uninterrupted pain and suffering, commencing with the operation in the Mater Hospital in Dublin, followed by a stay in the rehabilitation clinic in Dun Laoghaire. I will set out a summary of the plaintiff’s injuries, efforts to rehabilitate himself and prepare himself for some kind of working life in the future at a later point in this judgment.
THE CASE AGAINST THE DEFENDANTS
8. Against the first defendant as Road Authority the plaintiff says that they were negligent and in breach of their duty to him in and about the design and maintenance of their road and in particular because at the bend in question they failed to provide a french drain which would have collected water which seeped from the slope on the adjoining lands to the east (that is to the plaintiff’s right as he approached the bend and owned by the second defendant) and travelled onto the road, thereby creating a localised hazard so that it was foreseeable that on a night such as the one in question a patch of black ice would form in circumstances which would not be predictable to the driver of a car.
9. This road was realigned in 1965 and had just been resurfaced in the months prior to the accident and indeed some of the cones associated with those works were still in place on the night of the accident. The 1965 realigned road replaced an earlier one further to the west (and further from the second defendant’s lands) which was about 1 metre higher and which did have a drain to the east thereof unlike the road built in 1965 and resurfaced just prior to the accident.
10. Against the second defendant the plaintiff suggests that their lands (which sloped upwards from the road at a gradient of approximately 1 in 5) contained some channels which facilitated the flow of water onto the first defendant’s road and it was further claimed by the first defendant against the second defendant that the latter had a duty under Section 76 (5) (b) of the Roads Act 1993 to take reasonable steps to prevent such water flowing onto the public highway.
NO CASE AGAINST SECOND DEFENDANT
11. At the conclusion of the plaintiff’s evidence on liability, counsel for the second defendant applied for a dismiss of the plaintiff’s claim against his client and both defendants having intimated that they intended to go into evidence should that application not succeed, I deferred an adjudication thereon until I had heard all the evidence. Following this the first defendant called one witness and one witness only, namely Mr. Eugene Daly, a hydrogeologist who gave evidence that it would have been possible for the second defendant to prevent the water flowing from the second defendant’s lands onto the roadway by constructing an interceptor drain some 200-300 yards long and 1 – 1½ metres deep at a cost of some £5,000.
12. Following this counsel for the second defendant made an application for a nonsuit of the first defendant’s claim for contribution and indemnity against his client to which I acceded; my reasons are available on the transcript. At this point counsel for the second defendant renewed his application for a nonsuit of the plaintiff’s claim against him and counsel for the plaintiff indicated that he was not opposing such application and accordingly I acceded to the application with the result that the second defendant had no more interest in the case save in regard to costs.
13. As a result the issues on liability with which I have to deal in this judgment concern only the issues arising between the plaintiff and the first defendant.
14. In the absence of rebutting evidence called on behalf of the first defendant it is necessary only to summarise briefly the evidence on liability called by the plaintiff.
EVIDENCE ON LIABILITY
15. Mr. Paul Romeril, the well known forensic engineer, gave evidence that the design speed of the road in wet conditions was 120 kilometres per hour and certainly 112 kilometres per hour equating to 70 miles per hour. In dry conditions the speed limit would be determined by the vehicle.
16. The source of the water at the point of the accident was ground water seeping through a vertical face which had been cut into the rising terrain to accommodate the super elevated curve of the road. The “springline” had been cut through and he referred to photographs showing water emerging from the cut. Because there had been no rain for two or three days before the accident he concluded that it was likely that it was ground water rather than rain water that had seeped onto the road and had turned to ice and in light of this he suggested that a hydrogeologist be consulted.
17. He said that it was basic engineering to provide a french drain to protect the road and he was not surprised to discover that ice had formed once water was permitted onto the road given the type of weather on the night of the accident. He said that given the problem there should have been manual and mechanical spreading of salt and a warning sign but the fundamental defect was the lack of the drain. He noted that ice was most dangerous when it was wet (just after forming) because then it was most slippy. The point at which the water seeped out onto the road coincided with the highest point of the second defendant’s lands abutting the public road. In his view 100% of the water which had seeped out onto the road came from the second defendant’s adjoining land. It was foreseeable that if you cut into the bank there was a risk that you would get ground water flowing out as happened in this case.
18. The provision of a drain was so basic that it was extraordinary that there was not one. It should have been obvious to the engineers that it was essential to have a drain. This applied also to the recent resurfacing works in the event that such drain had not been provided at the time of the original realignment in 1965. In engineering terms the cause of the water on the road was the provision of the road without a drain.
19. Evidence was given by Dr. John Sweeney meteorologist to the effect that at around midnight on the night of the accident, the temperature at the location of the accident would have been around freezing point producing a fairly rapid formation of ice at that point and given that water expands by some 11% on the formation of ice, it could well have expanded above the pebble line on the road to form a sheet of slippery ice. There had been heavy rainfall on the previous Thursday but by the early morning of the following Monday all the surface water would have long since drained away so that the water forming the ice came from the ground water.
20. Dr. David Ball, a hydrogeologist gave evidence that the heavy rainfall the previous Thursday or Friday morning would have produced the flow of ground water onto the road by the following Sunday evening or Monday morning. He said that the Road Authority should not have cut into the second defendant’s lands without incorporating a french drain.
21. Apart from photographic and mapping evidence, this was the evidence called by the plaintiff in relation to the liability of the first defendant. Whilst this evidence was subjected to cross examination, no countervailing evidence was called on behalf of the first defendant and these witnesses maintained their opinions and conclusions throughout their evidence.
22. I accept this evidence and it is clear, accordingly, that in the absence of a drain to collect the water flowing onto the road at the point of the accident, it was foreseeable that ice would form in conditions such as obtained on the night in question and present a hazard to a motorist who would not be alerted to the possibility of ice on the road in the absence of recent rain or any warning. Clearly this constituted a breach of duty owed by the first defendant to the plaintiff which amounted to negligence.
CONTRIBUTORY NEGLIGENCE
23. The first defendant submits that there was contributory negligence on the part of the plaintiff under three headings, namely:
(a) he had consumed too much alcohol,
(b) he was driving too fast,
(c) he failed to wear a seat belt.
24. I will deal with each of these in turn.
ALCOHOL CONSUMPTION
25. The plaintiff said that he had a clear recollection of what he drank that night. He thought he might have had four small bottles of Heineken throughout the evening. He said he would be very conscious of drinking and driving and also that he had to work next day.
26. Maeve McCaughey said that the plaintiff had a couple of drinks towards the early part of the evening and after that was drinking water. As far as she could remember the plaintiff was drinking bottles of Heineken. She never recalled the plaintiff drinking pints. Whilst it was put to the plaintiff that there was a medical record of his having drunk pints and that a nurse’s note contained a reference to “alcohol + +” , I accept Mr. Whelehan’s submission that this suggestion of itself is of no probative value, the authors of these references not having being called and the plaintiff not having had an opportunity of cross-examining them. I note also that the plaintiff said that he was confused and might have said anything to a doctor or nurse after the accident and indeed so was Ms. McCaughey who after the accident told garda Carlisle that there were four people in the car when this was clearly incorrect. Moreover, garda Carlisle said that he did not get any smell of alcohol from the plaintiff at the scene of the accident. Accordingly the evidence in relation to the plaintiff’s consumption of alcohol is that he had at most four small bottles of Heineken over an evening commencing about 7 or 7:30pm and continuing until 1:30am the following morning. The evening included water-drinking by the plaintiff and also presumably some physical activity at the disco.
27. In my view alcohol did not affect or impair the plaintiff’s judgment or ability to drive. I note in particular that Ms. McCaughey gave evidence that he had negotiated a single lane bounded by cones placed by the Road Authority shortly before he met with his accident. To do this he would have had to slow down to perhaps 40 miles an hour and thereafter speed up again. I hold that the plaintiff was not guilty of contributory negligence by reason of the consumption of alcohol.
SPEED
28. In my view the probability is that the plaintiff was travelling at approximately 70 miles an hour. This is, of course, in breach of the speed limit but on the evidence was within the design capacity of the road and therefore but for the ice there would have been no accident.
29. Mr. O’Hagan, counsel for the first defendant submits, nonetheless, that in these circumstances “ there must be a finding of contributory negligence ”.
30. Mr. Whelehan, counsel for the plaintiff submits that there should be no such finding as there is no evidence that the plaintiff’s injuries would have been different had he been travelling 10 miles per hour slower, nor was such a suggestion put to the doctors or engineer who gave evidence. Indeed, so to conclude would be pure speculation.
Section 34(1) of the Civil Liability Act, 1961 which deals with contributory negligence provides where relevant as follows:-
“Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff …. and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant….”
31. By definition (S.2) “negligence” includes breach of statutory duty so that
breach of a speed limit can, of itself, amount to contributory negligence. It seems to me in
addition that any motorist travelling in excess of the national speed limit without a particular
justifying excuse (there is none in the present case) must be guilty of a want of care for his
own safety in addition to breach of statutory duty. The consequence of this want of care is an
enhanced risk of serious damage (including personal injury) should something unforeseen
occur on the road. Driving a fast motor vehicle is inherently dangerous and unforeseen
accidents cannot be ruled out. To travel in excess of the national speed limit without
justifying excuse involves in my view incurring an enhanced risk of serious consequences
should an unforeseeable accident occur.
32. But did this extra speed cause the plaintiff’s injuries?
In Sinnott -v- Quinnsworth [1984] ILRM 523 the Supreme Court dealt with contributory negligence in a car accident case where the plaintiff failed to wear a seat belt, as so found by the jury. O’Higgins C.J. (with whom three other members of the Court agreed) dealt with the issue of causation in the context of contributory negligence at page 528 as follows:
“Part of the evidence to support the allegation was that of Mr. Patrick Carey, the well known neuro-surgeon. He stated that having regard to the facial and other injuries suffered by the plaintiff the probability was that he had not been wearing a seat belt. He went on to say that had the plaintiff been wearing a seat belt the chances of his sustaining the appalling injury which he suffered would have been reduced by about 25%. In the light of this evidence, if the jury had found that there was no contributory negligence on the part of the plaintiff such finding would have been perverse. The jury apportioned only 2% on the plaintiff. This Court has frequently stated that in no case can such a small percentage as 2% be warranted. The evidence in this case, in my view, justified and required a finding of at least 15%. I would substitute this percentage for that recorded by the jury.”
33. The foregoing conclusion and the basis upon which it is made contrasts with the dissenting judgment of McCarthy J. who found it impossible to understand how the wearing of a seat belt could have lessened the physical movement of the plaintiff’s neck in the car associated with his injuries. In that event he held that the defendants had not discharged the onus of proof that the plaintiff’s failure to wear a seat belt had a bearing on the injuries sustained.
Section 34(1) of the Civil Liability Act 1961 establishes as a precondition to a finding of contributory negligence that (inter alia ) a want of care on the part of the plaintiff is shown to have caused the damage. The approach of McCarthy J. requires a defendant to establish a cause and effect chain between the want of care and the injury before contributory negligence is established. The approach of the majority, in contrast, accepts that a finding of fault (blameworthiness) can be laid at the door of a plaintiff if his want of care enhances the risk that in the event of an accident his injuries will be serious. Evidence of a statistical reduction of chances of serious injury by 25% if the plaintiff had been wearing a seat belt translated into a finding of 15% fault in that case.
34. The requirement that want of care on the part of a plaintiff be shown to have caused (in part) his damage was satisfied in Sinnott -v- Quinnsworth by establishing that his want of care enhanced his risk of injury. A somewhat similar approach was adopted by Lynch J. in Conley -v- Strain [1988] IR 628 at pages 632/633. This was a case where the plaintiff was not wearing a seat belt and had been thrown out of the car. Lynch J. said:-
“The plaintiff’s surgeon gave evidence that a person thrown out of a motor vehicle is thirty times more likely to suffer serious injuries in a road traffic accident than a person who remains in the crashed vehicle. This evidence together with the evidence that the plaintiff was lying under the Opel motor car when it finished its journey upside-down in D’Alton Drive leads me to the inevitable conclusion that the plaintiff’s failure to wear the seat belt which was available to him contributed to the gravity of his injuries. I find therefore that the first defendant has discharged the onus of proving that the plaintiff was guilty of contributory negligence within the meaning of that term as used in S.34 of the Civil Liability Act, 1961, and I must therefore establish the degrees of fault of the first defendant’s son and the plaintiff respectively .”
35. It is noteworthy that in Hamill -v- Oliver [1977] IR 73 at p.76 the Supreme Court held that:-
“The question is whether the wearing of a safety belt would have prevented or reduced the injuries. Here, as in most cases, no special evidence was required on the point. The jury could not but have come to the conclusion that the impact injuries the plaintiff received when her right chest and ribs struck the gear lever would not have happened if she had been wearing a seat belt.”
36. From the foregoing it seems, firstly, that the prerequisite causation required by section 34(1) of the Civil Liability Act 1961 can be established, inter alia , by statistical proof of enhanced risk, and secondly, that in regard to causation no special evidence is required in an obvious case.
37. To put the foregoing in another way, the law regards the accident in this context as sufficiently proximate to the injuries as to be capable of being, with little proof or persuasion, the causa causans thereof rather than merely the causa sine qua non .
38. As I have indicated it seems to me that a driver of a car at 10 miles per hour in excess of the maximum national speed limit without appropriate excuse is guilty of a want of care for his own safety in that he thereby incurs an enhanced risk that the consequences of any unforeseeable accident will be worse by reason of this excess speed. Notwithstanding the absence of evidence comparable to the statistical evidence given to the Court in Quinnsworth and Conley it seems to me within the competence of a court to assign fault as between the plaintiff and the defendant in the circumstances of this case. The foregoing reasoning appears to me consistent with the decision of the Supreme Court in Reeves -v- Carthy [1984] IR 348 and particularly the observations of Griffin J. at pp. 366/7 where he said:-
“On behalf of the plaintiff, Mr. McGrath submitted that, once damage of a type which is foreseeable occurs, the full extent of that damage is the liability of the defendants although the extent of the damage might not have been foreseeable … Since the Wagon Mound (1) and Burke -v- John Paul and Co Limited, the law has not required that the precise nature of the injury must be reasonably foreseeable before liability for its consequences follows. In Salmond on the Law of Torts (16th ed., para. 202 at p. 564) Professor Heuston, with his customary clarity, has concisely and conveniently summarised this branch of the law as follows:-
“Type of damage must be foreseen . It has been made plain that the precise details of the accident, or the exact concatenation of circumstances, need not be foreseen. It is sufficient if the type, kind, degree, category or order of harm could have been foreseen in a general way. The question is, was the accident a variant of the perils originally brought about by the defendant’s negligence? The law of negligence has not been fragmented into a number of distinct torts.”
In this case, the damage which occurred was of a type that was foreseeable (i.e., circulatory damage and shock) so that, even if the stroke was not foreseeable by the defendants, if either of them was held to have been negligent then he would be answerable for the stroke because that was the extent of the damage suffered.”
39. I note particularly the word “degree” in the above quotation from Salmond.
40. If this applies in relation to allegations by a plaintiff against a defendant I cannot see why it does not apply the other way round. If I am correct in identifying an enhanced risk of serious consequences should an unforeseen accident occur as a type of damage for which an excessively speeding plaintiff must accept responsibility then the extent of that damage (namely the actual injuries suffered) must also be part of his responsibility. This is because his injury is of such a kind as the reasonable man should have foreseen to use the test adopted by the Supreme Court in Burke -v- John Paul and Company Limited [1967] IR 277 from The Wagon Mound (1 ) [1961)A.C. 388.
41. In the circumstances of this case I consider that by reason of excessive speed the plaintiff was guilty of contributory negligence and must accept one third of the fault for the accident, and accordingly his damages must be reduced by that fraction.
THE SEAT BELT ISSUE
42. As already indicated the evidence is that the plaintiff shot backwards out through the rear window, ending up face downwards some ten feet away from his car. Mr. Romeril says that in those circumstances even if the plaintiff had been wearing a seat belt it would have done nothing to interfere with his trajectory or reduce his injuries. The suggestion has been made by counsel for the first defendant that if the plaintiff had been wearing a seat belt he would have probably ended up hanging out of it like Ms. McCaughey whose injuries were relatively minor. However, Mr. Romerill says that this does not follow at all because the impact at the rear corner of the car meant that the forces were askew and not parallel, that the weight of the driver and his holding the steering wheel established quite different physics to those applying to Ms. McCaughey’s case and that these physics are quite complex and it would be impossible for him to say whether the plaintiff sustained the injury to his back by bouncing off the car as suggested by counsel for the first defendant or not.
43. His evidence was that as a matter of probability the plaintiff shot clean out of the back of his seat causing it to be flattened and through the rear window and that a seat belt if worn would not have prevented that happening. In the absence of any other evidence on this topic, I cannot speculate and I hold that the first defendant has not discharged the onus on it to establish that the plaintiff contributed to his injury by not wearing a seat belt. The medical evidence was agreed and submitted by way of written report with the exception of Dr. Patrick Murray, consultant with the Rehabilitation institute and the plaintiff’s general practitioner, Dr. Clarke, who gave evidence which will be referred to later. It was not suggested to Dr. Murray or to Dr. Clarke that the wearing of a seat belt would have affected the plaintiff’s injury. In these circumstances there is no evidence before me which suggests that conclusion and accordingly I hold that the plaintiff was not guilty of contributory negligence on this count.
44. It may be worth noting here that the difference in the context of the contributory negligence allegation in this case between the speed and safety-belt issues is that there was no evidence to rebut the inference that the plaintiff’s excessive speed contributed to his injuries whereas there was evidence to rebut the inference that a seat-belt could have reduced them.
QUANTUM ISSUES
45. Before summarising the course of the plaintiff’s medical, therapeutic, training and work history in the seven year period since his accident, I will identify a number of issues relating to quantum which have been raised in this case.
ASCERTAINABLE LOSS
46. There is an issue about the amount of earnings that the plaintiff would have achieved had there been no accident and which he can achieve in the future, given his present physical and medical condition.
47. There is no agreement as to the cost of care which the plaintiff will require from now on; there is evidence that the cost of care has risen at a rate of 3% higher than the general rate of inflation (itself put at some 3%) coupled with the suggestion that the court should factor this into its assessment of future costs of care and care related expenditure. There is agreement between the parties as to the particular aids and appliances which the plaintiff will need in the future and as to the cost of these. However, in relation to all future ascertainable losses (by which I mean loss of earnings and future costs) the plaintiff challenges the conventional basis upon which actuaries compute future losses by reference to an assumed 4% real rate of interest, it being submitted that a calculation on this basis under- compensates a plaintiff because the real rate of interest is approximately 2%.
48. Furthermore it is submitted that the equivalent of the figure in the region of £150,000 indicated by the Supreme Court for general damages in the case of a quadriplegic in Sinnott -v- Quinnsworth [1984] I.L.R.M. 523 at page 533 would in June 2001 (some 17 years later) be considerably more, being somewhere between £230,000 and £600,000 depending upon the criteria used.
49. I will return to deal with these issues having summarised the relevant evidence but first it is necessary that I now summarise the plaintiff’s experiences during the last seven years and four months.
THE PLAINTIFF’S LIFE SINCE THE ACCIDENT
50. The plaintiff said he is now 28. His father works in the St. John of God’s residential unit in Drumcar and also as a forester: his mother works full time at home. He trained as a mechanic, qualifying in 1993 then he took a job driving a van for C.K. Foods, for which he was paid £180 a week and also did about £70 worth of work per week at home as a mechanic for friends and acquaintances. Prior to the accident he was involved with the GAA and was in fact captain of a team on the morning of his accident. He was interested in motor sports and socialising.
51. I have already summarised his account of the events leading up to the accident. The plaintiff said that he remembered his car coming off the road around the bend and going out of control and seeing lights. He remembers his father and his brother, Terry, at his bedside in the theatre in Monaghan Hospital and knows that he was taken by ambulance to the Mater Hospital Dublin. There was a lot of unbearable pain in his back. His fractured jaw was not really sore, his chest was sore. In the Mater he remembers wanting the nurse to knock him out and give him something for his pain. He cannot remember being asked whether he had drink taken. He remembers being told by a doctor in the Mater that he wouldn’t walk again and that was a blow.
52. He was operated on twice in the Mater, once to deal with his back and next to deal with his jaw and a third time later in the Rehabilitation Institute, to remove the wires from his jaw. His chest and ribs were very painful but his jaw was not sore. He got a chest infection in the Mater Hospital and was very uncomfortable. In the Rehabilitation Institute he got a viral illness and was ill for the next six weeks with a high temperature and perspiration, which was very uncomfortable. During his time in the Rehabilitation Institute he trained on the wheelchair and sat up for the first time on St. Patrick’s Day, 1994. He was very stiff but managed and began to go home for weekends in May. He was re-trained in the use of his bowel and bladder and had to empty his bladder every four hours. He got a kidney infection and eventually was put on a Convene drainage bag system. He was discharged from the Rehabilitation Institute in September. When he went home his friends had arranged fund-raising for an adapted car and alteration to his house. They raised £26,000. He was coping well in the Rehabilitation Institute and now returned to live at home with his parents rather than with his grandmother where he had been living before. He moved into his sister’s bedroom which was adapted to provide a shower, toilet, a small kitchen and a small living room as well as a bedroom for himself. He went to a FÁS course in Dundalk on computerised mechanics.
53. Coming up to the anniversary of his accident he got depressed because this was his own target date for walking again and he failed to reach that target. He went back to the Rehabilitation Institute for a few days and was then committed to St. Davnet’s Psychiatric Hospital in Monaghan, where he was very low and depressed, and he was in and out of St. Davnet’s for the next year or so. It was a bad year. He couldn’t believe that he would have to face the rest of his life in a wheelchair. At the end of 1995 he got a clot in his right leg which swelled up and he had to go to hospital. He was there for about three weeks but it was not painful. In the first half of 1996 he attended a course in Dundalk for computers, driving himself daily. In August he was put on placement in a garage where he worked as a mechanic and with computers. He was able to manage and the experience was “just o.k.”. (Catherine Logan, occupational therapist, reports that in October of 1996 he began employer based training for twelve months in Dundalk, working in a garage as a workshop clerk, four days a week.)
54. The plaintiff said that he went to Spain with friends in 1997 for a holiday. The heat got to him and the holiday did not work out and he was sent back. It is clear that the plaintiff returned from Spain suffering from an interruption in his regime of medication and general health management. The plaintiff said he returned to his job in 1997, working on computers, earning £20 per week and receiving disability benefit of £85.50. However he was “ just let go ” from this job. Later he went to Newry to follow another course on computers and in fact the plaintiff has earned four computer awards all of which are, it seems, fairly basic. He was trying out everything he could. In 1998 he went on a disabled course to the United States of America. This course was beneficial. He had not been in the States before. He was impressed with the public buildings, especially in Pittsburg. The plaintiff is now secretary to the Access Committee for the disabled in Castleblayney. (It is instructive to contrast the plaintiff’s account of his U.S. trip with his G.P.’s account. Dr. Clarke recalling this trip said that the plaintiff had major problems in the United States and ended up in a psychiatric institution. The plaintiff rang him (Dr. Clarke) several times. He was going with a group of people and he had been strongly advised to strictly supervise the medication that he was on).
55. The plaintiff said that in 1999 he was not too bad mentally. In 1999 he got work with a computer and engraving for a short time in a factory but he was let go as there was no work for him at the time. He thought that there would be maybe in the future. When this was over he had a job with a friend of his who operated his own garage in the vicinity. The plaintiff said that he was able to sweep the floor, rub down the bumpers and bonnets of cars, strip down door panels and do a certain amount of polishing. He was very happy doing this job. He loved working with his hands and he said he did heavy work sweeping the floor every morning and that this work did not burden him. His hours were from 9 a.m. to 3 p.m. His friend did not put him under pressure and he accepted that this was more in the line of occupational therapy. He found it very therapeutic physically and mentally. He did computerised estimates on a spreadsheet for the damages to a car and he managed well with the numbers. In this context he said that he rang the manager of a Toyota garage in Castleblayney in response to a job advertisement and the manager told him, “ You couldn’t do the work.” He said that his friend, James Connor, was keeping the job open for him and he thought maybe he would be able to earn £50 or £60 a week. At present he is supposed to be in bed for most of the day (to take him away from his wheelchair in the context of curing the pressure sores to which I will refer later). But once this period is over (by next September, hopefully) he would hope to take up this or some other job.
56. Once again it is instructive to contrast the plaintiff’s evidence in this connection with the evidence given by his friend, James Connor. Mr. Connor said that he does have a garage in Castleblayney and he is self-employed there for 3 years, having worked in a Toyota garage. He is a qualified mechanic. The plaintiff used to call into him for some “craic” and he told him that he could come and try and work there. The plaintiff came in when it suited him. He could polish a bonnet if the bonnet was put on the table for him. He tried some sweeping but the plaintiff was “in the dirt more often than out of it ”. Mr. Connor said that he let the plaintiff feel that he could do the work. He would have to check the work after the plaintiff and go over the job. He might have given him £50 one week, but not two, but more often it would be £10 a week. There was “very, very little that he could do ”. The plaintiff did not do all the things that he said he did. He could not get into a car to do any work. He would come in between 9.30 and 10 in the morning and Mr. O’Connor would have him out by 1 or 2 o’clock. He did prepare a computer estimate but it was all set out for him by Mr. O’Connor and all the plaintiff had to do was have it typed. He liked the plaintiff for his company but it was not profitable for him to pay him anything like £50 a week and the plaintiff was not fit for the garage business. He couldn’t give him a reference. He could answer the phone and he could drive off and get a message, providing there was somebody at the other end to meet him when he arrived.
57. The plaintiff said that in January, 2000 he got a clot in his leg which developed into a pressure sore and he has been in bed more or less continuously as a result of that for the period leading up to the date of the hearing. He suffered from temperatures, sweating and being in bad form. He got a hospital bug and suffered from high temperatures and when at home he had to rely on his mother all the time, particularly with heavy sweats and the changeover of linen and clothing. He would have accidents with his bladder and bowel and he became very depressed during this time. At times he wanted to drive his car away to get it all off his mind. Before Christmas he went to Belfast to a consultant and was admitted to Monaghan Hospital for ten days and then Navan for four weeks, to have an operation for the septic arthritis in his left hip. In March he had two operations and the problem is still there but he is hopeful that by September next (2001) he would have cured the infection from his left hip and would be able for some job.
58. He went to Lourdes in 1999.
59. Regarding the next few years he hopes that he might take on a part-time job which would be nice and easy with no pressure. He said his sexual function is not working now and he would have liked to have had a family. His mother and father are a tremendous help to him during his low periods because he needs someone to talk to. He has not socialised since the millennium and he would like to have his own house some day. He said he is young and wants to live a bit. At present his normal day requires him to stay in bed for most of the time. When he was attending the course in Newry (which lasted twelve months) he would get up at 7.30 in the morning, leave the house at 9 a.m. for the course at 10 a.m. and drive home for 5 or 6 p.m. It was an hour’s drive.
60. In cross-examination he said that prior to his accident he was earning £250 a week on average between his pay as a driver and as a mechanic. None of this was taxed. He had been thinking of acquiring a HGV licence though he was happy doing what he was doing. Since the accident he has had three cars and has driven approximately 75,000 miles up to the beginning of his illness in hospital at the beginning of the year 2000. He travelled to Dundalk for a course, which is 15 miles away and Newry which is 20 miles away and in Newry he would have put in a full day. He would be happy to get a 5 day a week job with the weekend off and he would love light assembly work. He did not want to be stuck at home watching television but rather he would love to work in the open market.
61. His father has offered him a site, which would be some 200 yards away from home. His father’s holding is 36 acres. He would like his house to be as normal as possible and it would be great to be independent. He might require nursing care for one hour in the morning and one hour in the evening, or more when he had a particular problem but hopefully “ next year ” he would not need a nurse. In thirty years’ time he might, when his is 55. The Health Board have provided him with a number of aides and facilities including wheelchairs and a mattress for his bedsores. He gets this through the local chemist and he is not charged. He has gone out since the accident (but not since the millennium because he has been more or less continuously in hospital). He would go out on Friday or Saturday night to a local pub and enjoys talking with his friends. They talk about football, motor vehicles, girls and sport. He keeps himself fit and goes to the gym and looks after his upper body. If he got a job he would require toilet facilities and access facilities but a job would do an enormous amount for his depression. He said he was well motivated regarding training and work. He hoped to get a HGV licence for continental driving as a break but did nothing before his accident about getting one.
THE PLAINTIFF’S PARENTS’ EVIDENCE
62. The plaintiff’s mother, Helen McEneaney, said that in the first year since the plaintiff’s accident he had spent a large number of months in hospital and coped pretty well. Coming up to the anniversary he was on a high because he thought he would walk. He asked her to hold him up and was very depressed when he could not walk. He became angry and aggressive and they were worried about him when he was like that because, for example, on one occasion he took off to Kerry and they had to alert the Gardai. At times they had to try and keep the keys of the car away from him. He has had bad pressure sores during the last 18 months. His mental condition (depression) flares up about twice a year for maybe six weeks. She would notify St. Davnet’s Hospital when this happened. Typically it would happen in February and in the summer. Then he would get aggressive and angry, couldn’t sleep, couldn’t be reasoned with and would go up and down the hall at night in his wheelchair. In between these bouts, even when he was well, he could fall when transferring from the chair or in the shower and she would have to help him. There would always have to be somebody to look out for him. He has three sisters at home.
63. When she went away they arranged for her sister-in-law to be in the house but she did not tell Brendan because she likes to let him think that he is independent and not a burden. He can’t look after himself when he is ill or depressed and there must be always someone for him to ring or call. When he is ill his symptoms are high temperature and perspiration. There had to be two dryers working full-time in the house when he was ill, due to the sweating and washing. During the last one and a half years there were only two months when he was not in hospital. The times when he is “ well” are very few now. She said she thought his hope of working next September is not realistic. He is still very positive and they keep him like that but in the seven-odd years since his accident he has not got open work. The reality is employers would not want to employ him. If he has a bladder accident when away he rings and says he is coming home. He asked her to put in for a carer’s allowance so that she could give him £30 per week to finance a car for him.
64. She thought it would be better if he had a home further away from the house so that he could be more independent. She did not think he could look after himself given his record of illnesses. She was unable to give enough time to her youngest daughter who is aged fourteen because of looking after the plaintiff. She agreed that the plaintiff is independent minded and determined to make a go of whatever he can do and that he is happiest when he is at work. He enjoyed doing the courses in Dundalk and Newry and when he can be out of the house he feels better physically and mentally.
65. She thought he would require more than assistance for one hour in the morning and one hour in the evening. She leaves the Convene bags out for him and everything ready for him, gives him physiotherapy on his back in the morning and during the day, checks his medicine three times a day, cooks and does his laundry, collects medicine at the chemist (he can do this himself on occasion) and does the shopping. This could not be done in two single hours in the day. The plaintiff is not really aware of the things that are done for him. He can get depressed at any time. He did have a period of unemployment before his accident (but this was not quantified). His post-accident work was arranged by friends, James Connor in his garage but also in the other garage where he had a friend there as well. She believes he is at high risk of further pressure sores and that he is not a candidate for full employment.
66. Seamus McEneaney, the plaintiff’s father, said that the plaintiff was a good worker before his accident and very pleasant. He was into football in the Gaelic club and he encouraged him to do that. In the evening he would work at home on the car or on the farm for a neighbour and he liked driving a tractor. He was friendly and people knew him and liked him. He never stayed at home watching t.v. because he was anxious to make a few pounds. Regarding his aspiration to get a HGV licence he had told the plaintiff that this was a tough job and it was not a great job. Since his accident they had tried to get the keys of the car from him on five or six occasions. They encouraged him not to look back and to stay positive and he agreed that the plaintiff was better doing something even if it was only driving the car. He thought he would be better living further away from the house than a couple of hundred yards away but he could have a site for a house if he wanted it. He thought that he would probably have continued driving a van and doing repairs if he did not have his accident. He did not think his son was cut out to be a computer wizard but that garage work and driving was nearer to his heart.
MEDICAL EVIDENCE
67. Oral medical evidence was given by only two doctors, namely Dr. Patrick Murray from the Rehabilitation Institute and the plaintiff’s G.P., Dr. Clarke. Dr. Murray said that the plaintiff had tried very hard indeed to cope. It was almost impossible for a young man who was paralysed and doubly incontinent. He was doing reasonably well given his double problem. It was desirable that his attitude and optimism regarding employment should be kept alive but the reality in the market is a problem. It was not untypical that he hadn’t had a steady job since his accident. Given his mental illness it was also difficult for him and he would need to be watched and helped from the point of view of his mental health. His life expectancy was 39 years from now. He had no sexual sensation. He should be able to live on his own independently but it would be extremely difficult to look after himself from a wheelchair and he would need home help. When he is mentally ill his attitude is not under his control and when he is mentally ill he would need more help than at other times. He might not be able to get out of bed at these periods.
68. Dr. Clarke, the plaintiff’s G.P., said that he attended on the plaintiff four or five times a year since his accident. He had a urinary tract problem involving infection in the beginning until he was put on a Convene system. He would suffer from fevers, sweating, loss of appetite, nausea, weakness and couldn’t get in or out of bed. He had a thrombosis in his lower limbs which exposed him to the risk of clotting in his deep veins. He has been on Warferin since that happened at the beginning of last year (2000). He needs constant care because he would not recognise this condition at an early stage. A trained carer would be needed to recognise it. He would be on high risk for another episode of thrombosis. He has had pressure sores during the last year and a half and has been in hospital with them. He has been on oral antibiotics and had a major operation in Navan hospital where part of his pelvis and hip bone was removed due to deep infection from this pressure sore. He is at high risk for a recurrence of this. He is on a special mattress at present and even when he gets over the present infection episode he would need to be on this special mattress for probably two hours a day into the indefinite future. He could never see him spending a full day in a wheelchair and would be at high risk for bed sores or pressure sores. This had “huge implications ” regarding his holding down a job. If he tried a five or six hour a day job he would in a short time become incapable of working.
69. He had seen the plaintiff when he was depressed and then he would stay in bed would not eat or sleep or would not see other people and was withdrawn. He understood that he would be aggressive as well. He was stabilised after his 1995 depression but since then he has had manic episodes on and off in the years between 1996 and 2000. His mental health will require close management into the future involving observation and checking his medication. At present he is being closely monitored by his mother regarding his medication and the pressure sores. He is taking up to six different kinds of drugs daily at present. His work expectations are “totally unreasonable ” as being over optimistic. He is unemployable given his psychosis on top of paraplegia.
70. He admires and approves the attitude of the plaintiff’s parents in encouraging him to remain positive but on an ongoing basis into the future he will need intermittent attention throughout the day and night and should have somebody to call at all times for the periods of his depression amounting to some 16 weeks a year (2 episodes of about 8 weeks each). A low percentage of paraplegic patients ever return to meaningful employment and given his additional psychosis the position was worse for the plaintiff. It would not be a nurse’s role to supervise medication but rather the role of a carer. The plaintiff needs help with meals, showers, laundry, medication, checking his limbs, checking his psychological health, supervision to ensure that he moves from side to side frequently and regularly and help when he will fall moving from the chair to the bed or in the bathroom. It is not a question of 10 minutes’ checking 3 times a day or checking twice for an hour a day. It requires much more care and supervision than that. On occasion he will not take his tablets and needs very close supervision.
71. There is no problem with him driving a car so long as he is taking his medication in a compliant way. In Dr. Clarke’s opinion the plaintiff was not likely to make a huge improvement in the future. Regarding his attitude to work the plaintiff blows hot and cold in that he can be very determined to work one day and fed up with it another day. Since he has had the convene drain he has not had a recurrence of his bladder infection. There was some mention some years ago of the plaintiff taking illicit drugs but not in association with one of his more serious psychological episodes. Whilst his psychotic condition is independent of his injuries from his accident (there is no history of psychological illness in his family) he believes that in all likelihood it was precipitated by the accident.
AGREED MEDICAL REPORTS
72. Mr. Maloney County Surgeon, County Monaghan reported that the plaintiff was admitted to the County hospital at about 2 a.m on the 14th of February, 1994. He had a broken lower jaw bone without loss of teeth, fracture of the breastbone and some (apparently two) ribs, also a fractured dislocation of the dorsal spine at TV 5-6 with paraplegia below. He was transferred to the Mater hospital Dublin.
73. Mr. Martin Walsh confirms a fractured dislocation of the 5th/6th thoracic vertebrae with no level of spinal cord function below. There were fractures of the lamina of his 4th, 5th, 6th and 7th thoracic vertebrae and a metal implant was extended from his 1st to his 9th thoracic vertebrae in the Mater hospital. He had a respiratory tract infection while there and also a fracture to his left jaw. He later refers to “ old” fractures to his 6th and 9th ribs. He will be left with long term paraplegia and prone to further episodes of skin pressure. Mr. Mark Dolan reported that in February 2000 the plaintiff developed a pressure sore over the left greater trochanter leading to infection of his underlying femur and hip joint subsequently developing septic arthritis with a dislocation of the left hip. He had an operation in January 2001 involving removal of one quarter of the femur and of part of his hip because of the septic arthritis and osteomylitis of his left hip and proximal femur.
74. He will require constant review to monitor his paraplegia and the change in his seating arrangements. He could get a recurrence of the infection at any stage in the future and whilst he did not suffer pain because of his paraplegia he did suffer significant sweating which discomforted him significantly. He will have to have careful alteration of his wheelchair following this operation and will require in the future to be constantly vigilant; this applies to himself, his family and other personnel to ensure that he does not get any further ulcers in the areas at risk (around his buttocks and hips).
75. Mr. Ronald Grainger, Consultant Urologist, reported that the plaintiff was first put on self catheterisation but he developed infections and was subsequently started on convene drainage being an external urinary collection device. As a result of his accident he has not normal bladder control and has not normal sexual function. He will require a follow up visit by a urologist once a year.
76. Doctor Bereen Chief Psychiatrist of St. Brigids hospital Ardee says that after the accident the plaintiff suffered symptoms of depression more severe than those of tension and anxiety requiring medicine and psychotherapy. He had a further severe bout of psychiatric symptomatology in 1995 and three later admissions because of this. He reported that “other than the road traffic accident and the ensuing injuries and subsequent dysfunction no other precipitating factors are in evidence .” He is probably vulnerable to further psychiatric illness and the prognosis is guarded. He is now on long term medical therapy and he coped well with the trauma of having his left hip removed due to infection by treatment resistant bacteria. His symptomatology is recurrent on a regular basis and this is probably going to be so in the future. The prognosis continues to be guarded.
77. Dr. Owens Chief Psychiatrist of St. Davnetts hospital Monaghan reports that he examined the plaintiff in June 2001. He refers to his physical injuries, and says he presented with an episode of psychotic mania in February 1995. He was admitted to St. Davnett’s in 1995 and had three further admissions to St. Davnetts Hospital in that year. He was diagnosed as having a mixed affected psychosis with schizo affected disorder and psychotic mania and psychotic depression. He had a further episode of florid disturbance in January 1999. There is no family history of psychiatric illness. The plaintiff has a fairly typical bipolar mood disorder (manic depressive illness). After 1999 he apparently had a more recent further manic relapse. Bipolar mood disorder is essentially biological in origin and episodic in nature. One of the plaintiff’s relapses was thought to have been associated with the use of illicit drugs.
78. There is no specific relationship between paraplegia and bipolar mood disorder; it is more likely to be a separated unrelated illness. It is possible, however, that the emotional trauma of the accident and in particular the resulting lifelong disability could be a factor in inducing the illness in one already predisposed to this disorder. Further in the report Dr. Owens says that the treatment of mood disorder has been already and will likely continue to be compromised by his physical abnormality. The major life restriction due to his physical abnormality will likely have effects on his psychiatric rehabilitation. Mr. Whelehan for the plaintiff has submitted in this connection that even if I accept that the plaintiff’s depression is unrelated to and uncaused by his post accident injuries it is clear that the treatment of this depression has been compromised by these injuries so that the plaintiff is entitled to be compensated for the effect of his depression on his lifestyle and in particular during the serious bouts of his depression which on the evidence occur twice yearly.
CONCLUSIONS
79. The impression of the plaintiff’s history since his accident from this evidence is of a man who is highly motivated, outgoing and determined to get work suitable to himself and to do any training necessary in that regard. He has had the enormous difficulty of paraplegia coupled with depression and further debilitating lengthy episodes in hospital for thrombosis and bed sores. His family co-operate to keep his hopes up but realistically it must be said that his hopes of work and for his future are significantly over-optimistic and unrealistic.
80. From the evidence it was quite clear that the plaintiff himself would do almost anything to train himself or to get work and that he retains hope of a job from his friend James Connor which is quite unrealistic or in the open market which again is unrealistic. He has battled continually and repeatedly with ill health and disappointment and on the evidence this is likely to remain his lot for the rest of his life. Given this evidence and the evidence of the Doctors who gave evidence and whose reports were furnished my conclusion is that the plaintiff is not likely to work again in the open market or otherwise so as to achieve any kind of significant wage. In this connection there was a suggestion that he might after the case is over possibly acquire and operate his own garage business. His father seemed to me not to think this likely and given the plaintiff’s own academic ability (he left school aged fifteen with a mediocre Intermediate Certificate except in metal and wood work where he achieved an A and B respectively) and his serious health problems, I do not think it likely that this will happen. Accordingly the case must be approached on the basis that the plaintiff’s earning capacity has been eliminated by his injuries.
WORK RELATED EVIDENCE
81. Evidence was given by Catherine Logan, Occupational Therapist, that van drivers would today earn between £300 and £450 including bonuses. A car mechanic would earn £320 per week plus PPF 5.5% from April 2001.
82. I do not think on the evidence to which I have referred that the plaintiff is likely to have worked as a intercontinental truck driver for any significant period. He was thinking about it, his father discouraged it, he did nothing about it before his accident. He was a very social man involved in his locality and interested in sports, socialising, cars and garages. He may indeed have tried the somewhat monastic life of a HGV intercontinental truck driver but I do not think he would have made a career of it in a way that would have had a significant impact on his earnings.
83. Rather I think that he would have continued either as a driver or a mechanic (in both cases working for himself outside of this job). Given that the evidence is that a car mechanic would today earn £337.60 (since the 1st of April, 2001) and a van driver up to £450 a week I think the likelihood is that the plaintiff would today be earning approximately £450 per week from all sources which would, of course, be subject to tax in the ordinary way.
FUTURE CARE NEEDS
84. Evidence was given by Noreen Roche Nursing Consultant and Ergonomist, concerning the plaintiff’s future care needs. (All past special damages have been agreed between the parties).
85. Between July and September of this present year (2001) she assesses that he will require the attendance of a carer for 7 hours for 5 days each week of this ten week period and also for 7 hours on each Saturday and Sunday and she sets out the appropriate costings. She allows for holidays, safety audits, the payment of PRSI plus administration costs on the basis that an agency would charge these, the alternative being that the plaintiff as direct employer would be himself responsible for the payment of PAYE as well as PRSI. It is agreed between the parties that the plaintiff will incur an additional 2% on whatever is the appropriate sum for carers as the cost of additional increments to his house insurance premium given that these employees will be continually at work therein.
86. The foregoing assessment is based on the evidence that the plaintiff will require constant attendance while he is on the pressure relief mattress until next September. The evidence is that he will require to be on this mattress for 7 hours a day. Ms. Roche said that a carer would be a mature person who would be trained by a nurse and would be somebody who would be compatible with the plaintiff and professionally capable of coping with his change of moods, psychological states, medication regime and other health requirements. A carer should have the support of a nurse and would be required to manage the plaintiff. In her opinion it would not work for a carer simply to walk in for an hour in the morning and an hour in the evening because this would be too autocratic a regime; nobody could be got to carry out duties broken up like this and in any event the plaintiff needs more from the carer than simple monitoring and medicine management. He requires somebody to turn him over, structure his life and take care of his domestic needs.
87. Regarding the long term, ideally a carer would be somebody who would be flexible, who would socialise with the plaintiff perhaps for example taking him off to a match to get him out of himself. The Health Board are “staff starved” and under pressure and if he is not entitled to a medical card it is unlikely that they will be able to provide significant services for him. (This was later confirmed by Kathleen Curry representing the Public Health Nursing Division of the Cavan/Monaghan Health Board). The carer would be trained to check for deep vein thrombosis but it would be essential that a nurse would check the plaintiff on alternate days as a carer given the best of intentions would not be fully competent to do this without supervisory checking by a professional nurse as well. No nurse would provide this service simply over the telephone; it would have to be a physical examination of the patient. The programme she envisaged is proactive involving monitoring the plaintiff’s calf for thrombosis, checking his medication, ensuring that he moves and shifts position regularly in order to avoid pressure, indeed giving him a pep talk and also taking care of his nutrition. The regime must be proactive so that what has happened before regarding his bed sores could not be allowed to happen again.
88. There is no room for lack of professionalism from a well intentioned volunteer where there could be a personality clash; carers and nurses are trained how to cope with patients such as the plaintiff. Ms. Roche said that she had last seen the plaintiff on the 3rd of April, 2001 and it became clear that he would require more care attendant cover than she had thought prior to that. He now had physical, psychological and supervision requirements. She thought that he would need 6 or 7 hours’ care a day during his current phase (to next September) because he had not improved as much as she thought he would have. He has had good nutrition recently and that is helping him. She would not agree that 4 hours’ care would be sufficient during this period. He had looked so emaciated on an earlier occasion and now he looks well given the proper care.
89. If the carer becomes ill it would be necessary to have access to an agency who have to make out cards for the employees and ensure that all the documentation concerning the revenue commissioners is in order. She also said that a 2% additional house insurance premium would be required given that professional carers would be working in the house in the future. An 8% additional allowance for holidays is required and she prepared her schedule for the future costs taking all this into account and allowing for carers for 12 hours a day for 16 weeks in the year to cover the anticipated twice annual deep depression episodes of 8 weeks each, together with all night call care for the remaining 36 weeks with 4 hours care a day. In addition there should be an allowance for nursing supervision on alternate days throughout the year and an allowance for food for carers should also be included. There must be provision for administration costs on the basis that an agency is employed or alternatively an allowance for the plaintiff’s responsibility for PAYE and PRSI deductions. She said in evidence that one must pay carers for a minimum of 4 hours a day to retain their services given that they are trained professional carers. She anticipated that carers would be drawn from a six to ten mile radius but she had not allowed for travel expenses or additional petrol. She thought the carers would require a car as there was not an adequate bus service. The carers had to be in for the “ long haul ” and in fact the plaintiff would require a team of 2 or 3 individuals to provide the caring service.
90. I have already indicated that no countervailing evidence was called by the defendants to oppose the case made by the plaintiff with the exception of Mr. Eugene Daly the hydrogeologist already referred to. In these circumstances the court is left with the assessment of future care needs presented by the plaintiff’s witnesses which is not seriously challenged on behalf of the defendant. This is clearly a very large element of the claim for future expenses and whilst the court must scrutinise the evidence with care I do not think the absence of countervailing evidence should induce the court to be unduly sceptical or unreceptive in a way which it otherwise would not be.
91. With regard to Ms. Roche’s assessment of the plaintiff’s needs until the end of next September (totalling £5,933.49) my view is that this estimate is a little excessive given that the judgment in this case will only be available after one or two of the 10 weeks concerned have elapsed. On the other hand I have the distinct impression that the plaintiff’s mother, Helen McEneaney, has been working very hard and has been under pressure because the plaintiff has not had carers available to him and I think it is particularly desirable that her wish to be more available to her 14 year old daughter should be accommodated as soon as possible. I think a realistic figure in light of the evidence for this element of future care is £4,000.
92. By far the most significant part of Ms. Roche’s evidence relates to the future regime following next September 2001. She has provided for round the clock (day and night) care for 16 weeks on the basis that the plaintiff is likely in the future to have two eight week episodes of deep depression where he will be totally dependant on the care of others. He will require round the clock monitoring for the reasons already indicated during these periods.
93. Dr. Clarke said that during some of the equivalent episodes in the past the plaintiff was unable to get out of bed and was prone not to take his medication. Generally it should be recalled that Dr. Clarke’s evidence was that the plaintiff will require assistance with his meals, showering, laundry, clothes management, medication, checking for the onset of thrombosis, continual reminders to change position in his wheelchair, supervision for moving from his wheelchair and help to be available at all times in case he falls unexpectedly when moving from his wheelchair. These are the needs for the plaintiff when he is not in deep depression. In light of Dr. Clarke’s evidence and the evidence of Ms. Roche against the background of the general medical evidence in the case I do not think it is unreasonable for Ms. Roche to assess the plaintiff’s care needs at the level at which she has done and of course I must accept her cost estimates and evidence in relation to administration overheads and insurance since there is no evidence on these aspects to the contrary. Her evidence is that for the years following September, 2001 and annually thereafter the plaintiff under this head will incur an overall annual total cost of £51,088.73.
HOME AIDS AND DOMESTIC HELP
94. The parties have reached agreement in relation to the future costs in this category. Depending on how I approach the capitalisation issues, the parties have agreed the appropriate amount to be awarded and accordingly I will return to this at the end of the judgment.
DAMAGES ISSUES
95. As indicated earlier in this judgment the plaintiff submits:-
(a) That the traditional 4% used by actuaries in computing future losses/costs to allow for real growth is excessively optimistic and results in the under compensation of plaintiffs. They contend for a rate closer to 2%;
(b) With regard to the specific costs of future medical care and appliances, it is submitted that the cost of these has increased historically at 3% per annum in excess of the general rate of inflation and that an actuarial discount figure of closer to 0% should be considered;
(c) With regard to general damages in cases of catastrophic injury they say that the guideline figure established by the Supreme Court in June, 1984 in Sinnott -v- Quinnsworth Limited & Ors ., [1984] ILRM 523 is the equivalent of a figure today of between £230,000 and £600,000.
96. I turn now to consider the evidence upon which these submissions are based and note in so doing that, once again, no countervailing evidence was advanced on behalf of the defendant, although it was clear at one point that it was intended by one or other of the defendants to call a well known economist who attended in court, presumably to respond to the evidence of Mr. Moore McDowell who gave evidence for the plaintiff. However, such evidence was not in the event adduced. The evidence on these topics tendered on behalf of the plaintiff was furnished by Mr. Moore McDowell, senior lecturer in economics, University College, Dublin and Mr. Desmond Peelo, chartered accountant with experience as non executive director of a large fund managing company.
THE DISCOUNT RATE
97. Mr. Moore McDowell, in evidence, described the principle of an annuity, and then said that once the rate of loss per annum has been determined (in “rate of loss ” he includes future annual costs) the key elements to be considered are firstly the length of time for which the plaintiff is expected to live (in this case 39 years) and secondly the relevant interest rate which is used to translate the expected loss into a capital sum equivalent. The real rate of interest (i.e. the nominal rate less the rate of inflation) had traditionally been taken by actuaries calculating these sums at 4%. This is referred to as the discount rate. To provide for future loss, therefore, it is necessary to predict future inflation or more relevantly the difference between future nominal yields and inflation. This is in general done by examining what the real interest rate had been in the past on the basis that these provide a good estimator of long term stable values for the real return on financial assets in the future. The economist expects nominal interest rates to adjust in the future as they have in the past to take account of future inflation. Any departure from expected rates in the future will only be temporary because nominal rates will be adjusted to take account of unexpected levels of inflation. Accordingly an examination of the level of real return on securities over a period of years in the past will enable conclusions to be made as to the future if and in so far as these remain reasonably constant or at least vary predictably.
98. Mr. McDowell said that the value of 4% which has been used in the past appears to be an arbitrary figure based on what was felt to be an appropriate value for the return a prudent person might expect after inflation on a relatively risk free portfolio in the early 1980’s. He then considered the speech in the House of Lords of Lord Lloyd of Berwick in Wells -v- Wells [1998] 1 AC 345 to the effect that an injured party should not be obliged to accept non negligible risk in the portfolio of assets in which the capital underpinning his annuity was to be invested. I have been invited by Mr. Whelehan SC for the plaintiff to adopt the principles set out in Wells -v- Wells and accordingly I will return to this at a later point. Sufficient for present purposes to note that Mr. McDowell has incorporated these principles into his evidence to the court. He notes that plaintiff investors require income certainty over the period of the annuity as they cannot, for example, postpone the choice of spending. Thus if the capital value and yield of the fund are variable a plaintiff investor may be required to eat into capital to maintain a constant revenue flow which would impact on future flows. In the case of Wells -v- Wells the House of Lords had available to it a risk free investment in the form of the Index Linked Government Securities issued by H. M. Government in the UK. (Irish plaintiffs cannot purchase these on the same basis as English plaintiffs because of uncertainties in the exchange rate). The return on these had been fairly constant at around 3% and accordingly the House of Lords applied a 3% discount rate in computing the award in that case. Prior to that the UK Courts had been operating on a conventional discount rate of 4.5%. In fact, the rates returned by the ILGS appear to be somewhat lower in recent times.
99. A liquid market in instruments such as the ILGS in the UK does not exist in Ireland or in the other ten countries of the Eurozone. Mr. McDowell said that the closest equivalent to the ILGS in this country is long term government bonds whereon the yield has been, after inflation, about 2%.
100. On the 15th March, 2001 the nominal redemption yield on Irish Government securities (now denominated in euros) was between 4.5% and 5.2%. The relevant inflation rate to use to calculate a reasonable value for the real rate of return is not now the current Irish CPI value but rather the expected Eurozone average inflation rates. He assumed that Eurozone inflation is likely to be in the range of 2% to 3% in the medium term, the conclusion being that the prospective real rate of return on Irish Government securities is in the range of 1.5 % to 3.2% with a mean value of 2.4%. The equivalent figure in respect of German Government bonds is 2.3% and in the case of US Government bonds 2.4%. These figures give an indication of what is implied for real rates of return on the basis of current nominal rates and expectations as to inflation.
101. It is also useful to examine what has happened in the past, to see what was actually earned by way of real yield on investments in “ risk free ” assets on the basis that this is an indicator of what may well happen in the future. He provided the court with a table setting out nine different types of fixed interest securities over different time periods ranging from 1926 to 1998, which show that a value of 2% for the real rate of interest is conservatively high. In fact only two, UK corporates (low risk) (1926-1983) and UK long dated gilts (1945-1998) attained 2% with five yielding between 0.4 and 0.7, the remaining two yielding 1 and 1.6 respectively. He concluded that in the context of a long term compensation package assets in long term gilts should provide both the required degree of certainty and produce an income stream valued at approximately 2% which was observed for the UK long term gilt holdings to which he referred.
102. In this country (with the possible exception of the years 1979 to 1982 during which real rates of return were high reflecting higher risk due to exchange rate volatility) long term real returns on gilts have not been near the 4% level favoured by actuaries and adopted by the Irish Courts. From 1993 onwards Irish interest rates fell sharply, the current prospective real rate being in the order of 1% or less but it is likely to rise to around 2% over the next year as inflation falls and nominal rates rise. Mr. McDowell’s conclusion is that if the court accepts the principle adopted by the House of Lords in Wells -v- Wells that a plaintiff’s damages should be calculated on the basis of minimum risk exposure then the appropriate real rate should be the real rate of return on long term government debt paper in respect of which historical evidence and the generality of economics opinion indicates a real rate of around 2%.
MEDICAL INFLATION
103. Mr. McDowell said it is well known that the cost of health care services has tended to rise more rapidly than most other commodities of service in the representative bundle used to calculate the inflation rate by means of the CPI. In Ireland he said the CPI rose by approximately 65% between 1983 and 2000, an annual average rate of increase in the overall price level of approximately 3%. The medical care component rose by about 160%, an annual average rate of increase of nearly 6%. There were several reasons for this. Firstly, health care is labour intensive thereby reducing the degree to which productivity increases can offset rising input costs. Secondly, health care services are characterised by intense technical change which is associated with rising costs of research and development. Thirdly, there are specific problems in determining the level, intensity and quality of health care arising from the manner from which it is generally financed: he said “free” or insurance financed health care has endemic difficulties arising from defective incentives facing both service suppliers and service users. Finally, he said that the extension in scope and depth of the threat of litigation has resulted in both rising insurance costs and increased costs associated with the delivery of care on a basis designed to minimise exposure to insurance claims.
104. He said that as a result a consumption pattern which is heavily biased towards the use of health care services will experience a higher inflation rate than a statistically “normal” pattern. He said that if it is accepted that medical cost inflation could exceed general inflation by about 3% (this he says was borne out by the rate of increase in VHI premium charges) the appropriate discount rate for calculating a capital sum in the context of future care provision would approach 0. He concluded by saying this consideration reinforces the proposition that the discount rate adopted to arrive at a capital sum should be much lower than the 4% figure which has been customary in Ireland for over a decade. In his opinion a court would be well advised to consider the degree to which future medical care costs are the basis for which the award is to be made. He conceded it would be asking perhaps too much to ask a court to accept a shift from 4% to 0%, however, he submitted that all these considerations point towards the court choosing a lower rather than an upper value for the appropriate discount rate in implementing the principles enunciated in Wells -v- Wells . The figure of 2% in his view was far from unreasonable.
105. I pause to note that while this judgment was in the course of preparation it was announced that the Voluntary Health Insurance Board had obtained ministerial sanction for for a 9% increase in premiums from next September, coming within months of the grant of an earlier increase of some 6.25% (in February 2001).
106. Evidence as to the discount rate was also given by Mr. Desmond Peelo. He presented a report, the purpose of which was to challenge the assumption that a 4% real rate of return was appropriate. He explained the annuity approach and with reference to the usage of a 4% per annum real rate of return having had its origins in 1985 pointed out that a comparison of then deposit rates and inflation does show that a real rate of return of 4% per annum could be earned from risk averse investments at that time. Accordingly in order to attain a real rate of return of 4% in the mid 1980’s a plaintiff did not have to invest in equities.
107. Whilst he acknowledged that under the Finance Act of 1990 permanently incapacitated plaintiffs were designated free of income tax, capital gains are not exempt in their case from capital gains tax except for gilts. Until recently the accepted view was that trustee type investments for incapacitated persons should not involve risk. The Wards of Court office, for example, was bound by legislation to invest only in gilts and bank or building society deposits with the addition of the AIB and Bank of Ireland. This policy was relaxed by Order in 1998 allowing the office freedom to invest in equities subject to certain conditions.
108. The relevant parameters (being investment conditions, interest rates, inflation and related circumstances) have changed markedly in recent times compared with those prevalent in the mid 1980’s. In recent times those with large awards to invest must receive professional investment advice given that many professional persons such as solicitors, accountants and stockbrokers will not now give advice in trustee type investment situations. This advice together with a fee for fund management (involved in the pooling necessitated by the required diversification needed to protect a plaintiff’s lump sum from the high degree of risk involved in concentrating an investment into a small number of shares) would involve a cost of 1% per annum on a fund of up to say £2.5 million and perhaps negotiable above that figure. This implies that the traditional 4% real rate assumed should be reduced by as much as 1% (depending on the proportion invested in equities) to take account of such fees.
109. Because of Ireland’s participation in the Eurozone interest rates are anticipated to remain low by comparison with historical rates. Large deposits are currently attracting rates of about 4%. Average inflation over the six years to 1999 was 2.3%, and while current higher rates (5.5% to 6%) are expected to decline, the achievement of a real rate of return of 4% in current circumstances will inevitably involve an investment in equities. The substantial growth in Irish equities since 1992 may not be repeated given that two relevant factors (namely lower interest rates and lower inflation both of which mean higher stock valuations) may have run their course and not be repeated. The downturn and lack of growth in values in 1999 and 2000 illustrates this. Again gains such as happened since 1999 may actually have been brought about by currency fluctuations (for example the downward trend in the euro exchanged against Sterling and the US dollar). The investment of a substantial proportion of available resources in equities may be suitable for a prudent long term investor but assuming the principles adopted by the House of Lords in Wells -v- Wells this would not be true for a plaintiff investor.
110. In the case of a plaintiff investor if there were a substantial fall in equities during the first 5 or so years during which the plaintiff will have to call on part of his capital to meet his needs in a depressed market then there is no chance of recovery because the money is spent. Therefore the plaintiff’s portfolio should be managed in such a way that he would not have to call on equities during an initial period of 5 years on the assumption that five years would be sufficient for the plaintiff to “ ride out ” any down turn in the equity market. Accordingly a plaintiff requires security of funding for his needs for at least an initial period of 5 years without appreciable risk of loss to the capital draw down in that period. This would entail holding a proportion of the available funds in non risk assets to cover this period.
111. The longer a plaintiff’s life expectancy the greater is the proportion of the fund that could reasonably be invested in equities. In the case of a plaintiff investor with a life expectancy of 30 years it might be reasonable to invest 70% of the fund in equities. (In the present case the plaintiff’s life expectancy is 39 years and given that no advisor appears to suggest a higher proportion than 70% investment in equities this ratio presumably applies to the plaintiff as well). During the last 10 years of any life expectancy period prudence would demand growing certainty as to available capital with the result that the equity proportion during the 10th to the 6th last years should be gradually reduced (by 20% per annum) and during the last 5 years of a plaintiff investor’s life expectancy the investments should comprise only non-equity investment.
112. Mr. Peelo then carried out a calculation to show that in the case of an investment over 25 years, given that 70% of the fund only would be invested be in equities and given an annual 1% management charge in respect of this portion of the investment and allowing for capital gains taxes of 20% and for the fact that during the last 10 year period the equities will be reduced in the manner already described the annual nominal return on the equities portion of the investment is required to be 12.1% to achieve an overall real rate of return of 4%. He conceded that this is not a precise calculation (and I assume that in the case of a longer term of life expectancy namely 39 years rather than the 25 in Mr. Peelo’s example the figure of 12.1% would be somewhat reduced). Mr. Peelo noted that based on historical experience where the return on equities were in the order of 5.7% to 6.5% and even allowing for expected higher returns given lower inflation in the future these returns are unlikely to exceed 7% to 8%, that is, well short of the 12.1% already referred to. This shortfall (in the order of 4%) implies that the actuarial discount rate should be 2.5% rather than the existing conventional 4%.
113. Before I turn to consider the legal principles applicable it is noteworthy that both expert witnesses adopted the approach of the House of Lords in Wells -v- Wells to the effect that a plaintiff investor should not be exposed to non negligible risk. In the case of Mr. McDowell he concluded that a figure of 2% is the appropriate one in the case of non medical related future loss with something like 0% in the case of medical future loss. Mr. Peelo speaking as an investment advisor suggested a figure of 2.5% as the appropriate one but in his case it is to be noted that he contemplates the Plaintiff entrusting a proportion of his award to the equities market.
THE LAW
114. It is remarkable that the only Irish case dealing with the appropriate multiplier (as it is called) is the decision of Hamilton J. (as he then was) delivering the High Court Jugdment in Cooke -v- Walsh [1983] ILRM 429 where he concluded that the appropriate calculation should be based on a real interest yield of 2.5% (see page 439). This decision was delivered in January 1983 at a time of high inflation and high yields but the plaintiff was clearly going to be made a ward of court and this is something which Hamilton J. took into account. On appeal this rate was not disturbed in the Supreme Court (Supreme Court 16th March, 1984) although there was a suggestion that in future cases a different rate might be justified. It is interesting to note that McCarthy J. observed that:
“If the learned trial Judge had based his assessment upon calculation of a real interest rate of 2 per cent rather than 2.5 per cent, I, for one, would not find possible to disagree with the calculation . In present days of high interest and continuing inflation, one is inclined to assume that high interest rates-interest rates running above 4/5 per cent and, indeed, up as far as 20 per cent – are, in some way, the norm. Such is not the case. The evidence given at the trial bears this out and one’s casual knowledge of the interest rates reflected in the older form of government borrowings (2-2½ per cent) lends ample support to this view. Having regard to the nature of the evidence called at the trial, it seems difficult to foresee any other view than that to which the Judge came; it may be that there would be compelling evidence in some other case to the contrary-pending it I would uphold the method of calculation adopted by the learned trial Judge.”
115. There is a clear and long tradition of Irish authority directing the Courts to accept and apply actuarial evidence in assessing future losses in these cases and as Griffin J. pointed out in Cooke -v- Walsh the rate of interest taken is of considerable importance as the multiplier (as it is called) in the case of 2.5% is substantially in excess of that in respect of 5%. It is surprising to find that the only explicit Irish authority on the method of assessment of the discount rate is the one to which I have referred.
116. In this circumstance I adopt Mr. Whelehan’s suggestion that I turn to the speeches delivered in the House of Lords in Wells -v- Wells [1998] 3 AER 481.
117. At p.487 Lord Lloyd of Berwick said:-
“The ordinary investor may be presumed to have enough to live on. He can meet his day-to-day requirements. If the equity market suffers a catastrophic fall, as it did in 1972, he has no immediate need to sell. He can abide his time, and wait until the equity market eventually recovers.
The plaintiffs are not in the same happy position. They are not ordinary investors in the sense that they can wait for long term recovery, remembering that it was not until 1989 that equity prices regained their old pre-1972 level in real terms. For they need the income, and a portion of their capital, every year to meet their current cost of care. A plaintiff who invested the whole of his award in equities in 1972 would have found that their real value had fallen by 41% in 1973 and by a further 62% in 1974. The real value of the income on his equities had also fallen.
So it does not follow that a prudent investment for the ordinary investor is a prudent investment for the plaintiffs. Equities may well prove the best long- term investment. But their volatility over the short term creates a serious risk. This risk was well understood by the experts. Indeed Mr. Coonan conceded that if you are investing so as to meet a plaintiff’s needs over a period of five years, or even 10 years, it would be foolish to invest in equities. But that concession, properly made as it was on the evidence, is fatal to the defendant’s case. For, as Mr. Purchas pointed out in reply, every long period starts with a short period. If there is a substantial fall in equities in the first five or 10 years, during which the plaintiff will have had to call on part of his capital to meet his needs, and will have had to realise that part of his capital in a depressed market, the depleted fund may never recover.
While therefore I agree with the Court of Appeal that, in calculating the lump sum, courts are entitled to assume that the plaintiff will behave prudently, I do not agree that what is prudent for the ordinary investor is necessarily prudent for the plaintiff. Indeed the opposite may be the case. What the prudent plaintiff needs is an investment which will bring him the income he requires without the risks inherent in the equity market; which brings us back to the ILGS.”
118. Later in his speech at page 493when giving reasons for his conclusion that the Judges’ calculations were correctly based on the assumption that the plaintiff would invest his damages in the ILGS he stated:-
“(2) Although this will result in a heavier burden on these defendants, and, if the principle is applied across the board, on the insurance industry in general, I can see nothing unjust. It is true that insurance premiums may have been fixed on the basis of the 4 to 5 % discount rate indicated in Cookson -v- Knowles [1978] 2 ALL ER 604, [1979] AC 556 and the earlier authorities. But this was only because there was then no way better way of allowing for future inflation. The objective was always the same. No doubt insurance premiums will have to increase in order to take account of the new lower rate of discount. Whether this is something which the country can afford is not a subject on which your Lordships were addressed. So we are not in a position to form any view as to the wider consequences.
(3)…For a plaintiff who is not in a position to take risks, and who wishes to protect himself against inflation in the short term of up to ten years, it is clearly prudent to invest in ILGS. It cannot therefore be assumed that he will invest in equities and gilts. Still less is it his duty to invest in equities and gilts in order to mitigate his loss.
(4) Logically the same applies to a plaintiff investing for the long term. In any event it is desirable to have a single rate applying across the board, in order to facilitate settlements and to save the expense of expert evidence at the trial…
(5) How the plaintiff, or the majority of plaintiffs, in fact invest their money is irrelevant…”
119. I note that similar views were expressed in separate speeches by Lord Steyn at p.504 Lord Hope of Craighead at p.509; Lord Clyde at p.513 and Lord Hutton at p.519.
120. I find the foregoing reasoning compelling. On the evidence there is no equivalent in this country of the ILGS in the U.K. Accordingly I must approach the assessment of the sum required to produce the appropriate annuity for the plaintiff over the next 39 years on the basis that it will yield a reasonably secure and reliable stream of annual funding (comprising income and capital) and to that end that the investment of the award shall be as risk free as reasonably possible in the absence of an equivalent of the ILGS in the U.K.
121. Leaving aside medical related costs Mr. McDowell’s evidence is that the actuarial discount should be 2%. Mr. Peelo suggests a figure of 2.5% accepting a prudent element of equities investment. Given the conclusions that I am about to indicate in relation to medical inflation I consider that the appropriate rate for general calculation purposes (that is excepting medical and medical related future costs) should be 2.5%.
122. With regard to the evidence in relation to future medical and other care costs there is uncontroverted evidence that the annual average rate of increase of these costs is nearly 6% that is 3% in excess of the general annual average rate of increase over the period since Cooke -v- Walsh was decided. Reasons are given by Mr. McDowell as to why this should continue to be the case. There is no countervailing evidence in the present case. Accordingly I requested the actuaries to prepare figures upon the basis that the medical related future costs would continue to increase over the plaintiff’s expected lifetime at a rate of 3% over general inflation. It seems to me that upon the evidence in the present case this is the appropriate rate in regard to those future costs.
GENERAL DAMAGES
123. Delivering the judgment of the Supreme Court in Sinnott -v- Quinnsworth [1984] ILRM 523 at p.532 O’Higgins C.J. dealing with the quantum of general damages over and above compensation for ascertainable loss said the following:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money. It may be that in addition, on the facts of a particular case, other matters may arise for consideration in assessing what, in the circumstances, should be considered as reasonable. However, a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation…In my view, unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.”
124. The plaintiff tendered the evidence of Mr. Moore McDowell to show what the equivalent figure to Chief Justice O’Higgins’ £150,000 would be in today’s money. Mr. Keane S.C. for the second defendant objected to this evidence upon the basis firstly that it would amount to telling the court how much general damages to award and secondly would be in breach of a convention that Counsel do not make such suggestions to the court. I resisted that objection on the basis that I did not think that Mr. McDowell was going to tell me how much to award but rather what Mr. Justice O’Higgins’ figure of £150,000 would have been in today’s circumstances and that accordingly no convention would be breached. I further said that I thought that I was bound to apply the Supreme Court ruling in Sinnott -v- Quinnsworth which clearly implied that if I was made aware of changes and alterations in living standards and money values I was obliged to take these into account. Indeed I consider this approach consistent with the approach adopted by Morris P., albeit in different circumstances, in Kealy -v- Minister for Health [1999] 2 I.R. 456 at p. 459 where he said:-
“Moreover, Sinnott -v- Quinnsworth Ltd. [1984] I.L.R.M. 523, was decided at a time of depression when interest rates were high and incomes, relative to the present day, small….
My own day to day experience in the courts ruling in infant settlements is the clearest possible test for me that the cap of £150,000 is no longer regarded as applicable by practitioners in the courts on either the plaintiff or the defendant side…..
In my view the correct measure of damages for the appellant for general damages for a lady whose life has been effectively ruined is £250,000.”
125. Mr. McDowell gave evidence as follows:-
126. Firstly, to maintain the level of general damages at the nominal value indicated by the Supreme Court in 1984 would be to reduce it substantially in real terms having regard to inflation measured by reference to the consumer price index. The equivalent figure for the year 2000 using the CPI would be in the region of £236,000. A somewhat higher figure is produced by reference to the GDB deflator, a second measure of inflation, which includes a wider range of goods than those in CPI. Any measure of inflation can be open to criticism but in particular the CPI is criticised for the manner in which it treats housing costs. Secondly, in relation to the standard of living to which the Chief Justice referred in Sinnott -v- Quinnsworth , in the absence of any specific criterion, Mr. McDowell suggested several ways in which these changes can be measured. If a representative household’s standard of living is the appropriate comparator then average household consumption could be considered. If it is income level per head average industrial earnings could be used. If the overall wealth of society is to be measured reference could be made to the GNP per head. Mr. McDowell set out the relevant figures in a table which shows that the GNP per head increased by a multiple of 3.3 to 1999, consumption per head increased by 3.24 and average industrial earnings by 1.93. These figures suggest that broadly speaking wealth or living standards measured in this way increased by a factor of 3 over the intervening period. Having regard to the increase suggested by the inflation figure (at some £235,000) and these figures (at something approaching £600,000) and given the fact that the Supreme Court was indicating a sum in the region of £150,000 it seems to me that a reasonable equivalent to the £150,00 for general damages in Sinnott -v- Quinnsworth Ltd . in today’s money would be £300,000.
127. If I err in this figure I consider I do so on the side of conservatism, especially if I compare the income which £150,000 would have yielded in June 1984 (at say 10%) with that which £300,000 would yield (at 4%) some seventeen years later: I make this observation because O’Higgins C.J. had particular regard to the income which an award would yield in Sinnott -v- Quinnsworth .
128. I cannot accept, however, that a paraplegic no matter how aware he is of his condition or how long his life expectancy (and granted that the plaintiff’s condition is extremely distressing to himself and his family, that he will be prone to disappointment, lack of fulfilment, depression and most likely further physical ailments together with the enormous loss of amenity and enjoyment of life that applies to any paraplegic) is in the same category as a quadriplegic. In the circumstances of the present case I would assess general damages having regard to the very large sums that must be awarded to the plaintiff under the headings of ascertainable loss at £75,000 for pain and suffering to date and £125,000 for pain and suffering in the future being amounts in both cases very considerably less than I would have assessed had I been considering them on their own.
REDDY -V- BATES
129. The Supreme Court in Reddy -v- Bates [1984] ILRM 197 directed in that case that in calculating future loss of earnings account should be taken of the fact that at the time of assessment of the award there was a high rate of unemployment not only in Ireland but in Great Britain and in most member states of the E.E.C. (as it then was). The numbers of redundancies and closures of firms led to the conclusion that there was no longer any safe much less guaranteed employment. That was a fact of which juries (and now judges) should be required to take into account in assessing future loss of earnings in any given case “ but the matter should be canvassed in evidence and in argument” – as stated by Griffin J. in Reddy -v- Bates at p. 201.
130. No substantial argument was advanced in relation to the possibility that the plaintiff might have been unable in the future to procure gainful employment: rather the argument focussed on whether he had established or not that he was likely to make a career as a HGV driver. On this aspect I hold with the Defendant. I can see no basis, therefore, for reducing the figure which I have allowed for future loss of earnings.
131. In this context, however, it does seem to me that in an appropriate case a reduction might be allowed under the general principles established in Reddy -v- Bates in respect of the cost of future care or other future outlay always assuming that evidence and/or argument is advanced in that regard. In the present case no evidence apart from that tendered on behalf of the plaintiff by Ms. Noreen Roche was advanced on the plaintiff’s future care needs nor was any substantial argument made in relation to her figures and evidence. Furthermore there was no evidence, as I have indicated, in relation to Mr. McDowell’s evidence to say that the costs of future medical care were likely to rise at a rate of 3% in excess of the general rate of inflation. In these circumstances whilst the amount for future care is very significant indeed it seems to me that I must act on the evidence which I have accepted. The only mitigating impact of this larger element of the award from the point of view of the defendant arises in the context of the principles established by the Supreme Court in Cooke -v Walsh (Unreported, Supreme Court, 16th March, 1984) whereby the Court will assess general damages by reference to the proposed sub awards in relation to ascertainable loss.
132. This I have done by reducing the general damages which I have awarded to the plaintiff in relation to pain and suffering in the past to £75,000 and in the future to a figure of £125,000 which are considerably less than I would have awarded had I considered these heads of general damage on their own.
133. Accordingly the full value of the plaintiff’s case would be as follows:-.
134. Past Special Damages (Agreed) £ 137,726
135. Future costs of house modifications (Agreed) £ 40,500
136. Loss of earnings in the future (Rounded to) £ 400,000
137. Cost of care in the future
(a) To next September £ 4,000
(b) From next September (Rounded to) £2,220,000
138. Insurance at agreed rate of 2% £ 44,400
139. Costs of Aids and Appliances taking into account
inflation of 3% over general rate £ 527,743
140. General Damages for pain and suffering in the past £ 75,000
141. General Damages for pain and suffering in the future £ 125,000
TOTAL £3,574,369
AWARD
142. Having regard to my finding that he was guilty of contributory negligence and must accept one third of the fault for the accident, the plaintiff is entitled to a decree in the sum of £2,382,913.
Nolan v Murphy
[2005] I.E.S.C. 17
Judgment delivered on the 18th day of March, 2005 by Denham J.
1. This appeal raises, for the first time in this Court, the issue as to the appropriate level of damages to be awarded in civil proceedings for a continuum of sexual abuse, over five years, which culminated in rape, to a teenager.
2. Michelle Nolan, the plaintiff/respondent, hereinafter referred to as the plaintiff, has brought civil proceedings against Simon Murphy, the defendant/appellant, hereinafter referred to as the defendant, for damages for sexual assault and for actions calculated and intended to cause emotional suffering.
3. On 27th February, 2004, after hearing evidence and submissions from counsel for the plaintiff and the defendant, a jury assessed damages at €600,000 and the High Court ordered that the plaintiff do recover against the defendant the sum of €600,000 and the costs of the action. This is an appeal by the defendant from that award.
4. The defendant has appealed on the following grounds:
(i) that the jury erred in law and in fact and was wrong in awarding the plaintiff the sum of €600,000.00 in general damages;
(ii) that the jury’s assessment of damages of €600,000.00 was excessive, went against the evidence, and against the weight of the evidence.
5. The case was heard in the High Court before Kearns J. and a jury on the 17th February, 2004. The defendant having admitted the abuse, the only issue for the jury was the amount of damages to award to the plaintiff.
6. Facts
6.1 The facts were not disputed. The events in issue took place between 1990 and 1995, when the plaintiff was between 12 and 17 years of age. The Murphy and Nolan families were friends. The Nolans lived in Dublin, the Murphys lived in the country, and the families would visit each other’s homes.
6.2 The plaintiff was abused by the defendant in her own home and in the Murphys’ home and premises. Between 1990 and 1995 she was repeatedly and, in different ways, sexually assaulted. The defendant admitted that he so acted between 1990 and 1995.
6.3 The nature of the abuse developed over the years. The activity started with the defendant putting his hand on her breast, her buttocks, and generally acting improperly. He fondled her over and under her clothes and tried to kiss her. He pinched her nipples. He rubbed and touched her. Initially he was not violent to her. The sexual abuse developed in 1992. Late at night he would make her masturbate him and make her touch him inappropriately. He would kiss and bite her neck. He touched her improperly and inserted his fingers into her vagina. The plaintiff remembered Christmas 1992. She told the jury that the defendant would be asking “if it was nice?” He would say things such as “it is our secret”. He became more insistent. She gave evidence of the defendant coming to her home when no one else was there and of his attempting to have intercourse with her and making her masturbate him. The plaintiff said the years 1994 and 1995 were the most painful. She was as resistant as she could be, kicking him and scratching him when he approached her. She said it was constantly happening. She gave evidence of instances of full penetrative sex.
6.4 The plaintiff gave evidence that it ended in 1995. She had been crying out for someone to “cop on”. She had written an essay for her Junior Certificate and it included some references to this abuse. The teacher called her up and asked her if everything was alright. The abuse was in its fifth year. On the 14th January of that year the defendant was staying in the plaintiff’s family house. The plaintiff was washing her teeth. The defendant rubbed against her. She swore at him. His wife came in and asked what was her problem with the defendant. The abuse then stopped.
6.5 The plaintiff gave evidence that she would go off into her own world when the abuse was happening. She felt that if she had told about it, it would have caused a massive break up between the families. She said the families were intertwined. She said she did not think that she would be believed. She felt that if it was happening to her it would not happen to anyone else; she was concerned as there were other children in the family.
6.6 An event occurred in 1997 which made her talk about the assaults. Her sister came in, very distressed. Her sister was 15 years of age at the time. Her sister said:
“Did Simon Murphy ever touch you?”
Bit by bit the plaintiff told what had happened to her. The day she got her Leaving Certificate results she told her mother the whole story.
6.7 The plaintiff said she did not have a happy, contented childhood. She said that once she came out in the open about the abuse she was branded all sorts of names and she was not believed. She gave evidence of her difficulty in coping with college – panic, anxiety, nightmares. The note of her evidence includes the following:
“Every night she had nightmares. She woke up screaming. She tore the sheets. She screamed. She got into bed with her parents. She was afraid to go back to sleep. She was sucking on a baby soother. She wanted to be small again. She wanted to be a baby. She had bad thoughts about herself. She felt cut off. … She could not trust anyone. Everyone in college (her peers) were enjoying themselves, they had boyfriends and she, the witness, could not get out of bed in the mornings.”
She gave evidence of difficulties in coping and of depression. Her evidence showed that the year 2003 was a particularly bad time.
6.8 The plaintiff’s general practitioner gave evidence of the plaintiff being distressed, the family being distressed, consultations in relation to depression, gastro-intestinal problems related to depression, and that while the plaintiff was coping she was upset and anxious. He gave evidence that the plaintiff had suffered flashbacks over a period and that the plaintiff had difficulty in engaging in treatment, which was very common for people who had been abused; she had attended a therapist and only lately engaged. The plaintiff had been and was on anti-depressants. He said that her attempts to withdraw had lessened, that there was a recent subtle change, and she was able to engage with her treatments. She had a very, very long way to go yet, he said. He said it was difficult to give an accurate prognosis. He agreed that this type of scenario might stay with a victim all their lives and that that could be the case for her. Principally she was suffering from depression, sleep disorder, hopelessness, loss of energy, and loss of motivation.
6.9 A consultant psychiatrist also gave evidence. He said that the abuse had left the plaintiff’s life blighted. While her depression had responded to treatment, it was likely, he considered, that she would continue to need anti-depressant medication. He stated that she had feelings of self-loathing and low self-esteem. He gave evidence that the adolescent years are critical, especially for girls. In this case the plaintiff’s development had been subverted by sexual abuse at the pre-pubertal stage. Her development had been altered and derailed. The effects were incalculable on a long-term basis. He would expect difficulties in emotional and physical intimacy, which would possibly be life long. He agreed that the plaintiff had benefited by confronting the defendant in the witness box in the criminal trial and by telling her story in this case.
6.10 When the defendant was confronted with the abuse, he admitted it. When first interviewed by the Gardaí, he admitted it. Counsel for the defendant said that he was instructed to apologise and to repeat the previous apology. The defendant pleaded guilty in the criminal prosecutions in both the District Court and the Circuit Court. He admitted that the plaintiff told the truth. The defendant has been sentenced to eight years imprisonment and is a prisoner in Wheatfield Prison. He has undertaken therapy. Mrs. Murphy is now rearing their four children on her own. They had a share in a public house business.
7. High Court Judge
The learned trial judge addressed the jury. He told the jury to beware the tidal wave of emotion and not to adopt a punitive approach, as to do so would be an incorrect approach. He said that damages are compensatory, everything past, present and future is wrapped up in a single award. He explained that he could not give directions or guidelines but indicated that the jury should be analytical and detached. He directed them not to be punitive. He pointed out that the plaintiff had walked into the sea at Sandymount, she had struggled with exams, she had had a terrible time. That said, she had gone to the United States of America and, ultimately, she had passed her college exams. He instructed the jury to keep proportion and that they should be fair.
8. Assessment
The jury retired at 3.37 p.m. and came back at 4.15 p.m. The jury assessed damages at €600,000.
9. Defendant’s Submissions
The defendant has appealed against the award as being excessive. Mr. Simon Kennedy, solicitor on behalf of the defendant, submitted that the jury erred in the amount of damages which it assessed:
(i) in failing to take into account mitigation of damage;
(ii) in failing to take into account the conduct of the defendant in admitting his guilt at an early stage and in apologising to the plaintiff;
(iii) in failing to take account of the defendant’s expression of remorse;
(iv) in awarding what must be presumed to be the maximum award in general damages; and
(v) in awarding excessive damages.
He submitted further that the jury erred in failing to take into account the defendant’s circumstances and ability to pay. It was submitted that the defendant was in prison for the matters complained of and serving an eight year sentence, and that he had previously been a joint owner of a family residence and public house which was subject to a mortgage, a right of residence, and maintenance and support in respect of a residential portion of the licensed premises. Further it was submitted that the defendant was married with four children.
10. Plaintiff’s Submissions
Turlough O’Donnell, S.C., counsel on behalf of the plaintiff, submitted that this award should stand. He argued that it could not be said to be plainly unreasonable as contained in the award are damages for past pain and suffering, future pain and suffering, loss of happy childhood, loss of opportunity, aggravated damages, damages for interference in privacy, and a recognition of rape and sexual abuse in a continuum, or a system, of harm and wrongdoing.
11. Novel Case
It appears that this is the first award of damages for sexual abuse by a civil jury. It is the first appeal before the Supreme Court from such an award which raises the issue of the sum to be awarded in general damages for sexual assault, sexual abuse, and rape, in a continuum, of a teenage girl. Consequently there are no precedents to guide the Court. However, there is information from other sources which may inform the Court and which may be of assistance.
12. General Damages
The level of the award of general damages is the issue on the appeal. While there is no common law directly on point, there are cases which give assistance. As this is a case where very serious injuries and damages have occurred, the range of damages open to a court is relevant. In relation to the scope of damages the Supreme Court has indicated an approach. In Sinnott v. Quinnsworth I.L.R.M. 523, O’Higgins C.J., in a judgment with which the other members of the court agreed, held, at page 532, that there should be a limit on the award of general damages. He stated:
“In my view a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society. In a case such as this, regard must be had to the fact that every single penny of monetary loss or expense which the plaintiff has been put to in the past or will be put to in the future has been provided for and will be paid to him in capital sums calculated on an actuarial basis. These sums will cover all his loss of earnings, past and future, all hospital and other expenses in relation to the past and the future and the cost of the special care which his dependence requires, and will require, for the rest of his life. What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable. To this end, it seems to me, that some regard should be had to the ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money. It may be that in addition, on the facts of a particular case, other matters may arise for consideration in assessing what, in the circumstances, should be considered as reasonable. However, a yardstick of a reasonable nature must be applied if reality is to be retained in the assessment of such compensation. In this case the jury assessed general damages at a total sum of £800,000. In my view, such an assessment lacks all sense of reality. It matters not at all what proportion of such a sum is attributable to pain and suffering for the past and what for the future. What is important is the total and this is a sum which if invested would yield a yearly income which in itself would defy even the most profligate expenditure. Such a sum bears no relation to ordinary living standards in the country or to the income level of even the most comfortable and best off in our community. Further, it could not bear any reasonable relation to the uses to which the plaintiff by reason of his injury could put money awarded as damages. In my view, unless there are particular circumstances which suggest otherwise, general damages in a case of this nature, should not exceed a sum in the region of £150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.
I would, accordingly, set aside the total award of £800,000 in respect of general damages, and substitute therefore a total sum of £150,000”.
I would adopt and apply the general principles set out by O’Higgins C.J., with one significant difference. In a case where catastrophic injuries have occurred and where a plaintiff is left, for example, a paraplegic, there will be a significant award of special damages. This considerable sum of special damages is a factor in determining the level of general damages when the overall situation is considered by the court, and may result in a reduction of the level of general damages awarded. No such factor arises in this case where there is no award of special damages, much less a significant award.
That is not to say that the plaintiff did not suffer special damages, such as medical expenses, but they have not been quantified. It is a matter which the jury were entitled to take into account in assessing general damages.
The sum must be fair and reasonable. The sum is to cover pain and suffering in the past and in the future. Applying Sinnott, regard must be had to ordinary living standards, to the general level of incomes, and to things upon which the plaintiff might spend the money.
The fact that the courts have considered a limit on general damages, in catastrophic injury cases, subject to the circumstances, is relevant. That limit has increased over the years. Thus, in Kealy v. Minister for Health [1999] 2 I.R. 456, at page 459, Morris P. stated:
“My own day to day experience in the courts ruling in infant settlements is the clearest possible test for me that the cap of £150,000 is no longer regarded as applicable by practitioners…
In my view the correct measure of damages for the appellant for general damages for a lady whose life has been effectively ruined is £250,000”.
McEneaney v. County Council of the County of Monaghan and Coillte Teo, (Unreported, High Court, O’Sullivan J, 26th July, 2001) held that a reasonable equivalent to the £150,000 for general damages in Sinnott would be £300,000. I am satisfied that the equivalent figure today, to the £150,000 of Sinnott, is in excess of €300,000.
This informs the analysis of a limit on the award of general damages. Such analysis assists in assessing general damages in the circumstances which have arisen in this case.
13. The Redress Board
No previous cases determining awards of general damages in cases of sexual assault and sexual abuse similar to this have been brought to the Court’s attention. In these circumstances it is useful to consider other schemes where sums are awarded for similar injuries. While such schemes do not provide a precedent for the Court, or in any way affect the jurisdiction of the Court, it is appropriate to consider the experience of such a specialist scheme.
In a report, to the Minister for Education and Science, entitled ‘Towards Redress and Recovery”, the Compensation Advisory Committee, appointed under s.14 of the Residential Institutions Redress Bill, 2001, considered compensation tariffs in other jurisdictions and some recent Irish court awards of general damages for personal injury. Subsequently the Residential Institutions Redress Act, 2002 formed the basis for a system of awards. A guide to the Redress Scheme under the Residential Institutions Redress Act, 2002 is published by the Residential Institutions Redress Board. In the Second Edition, issued in October 2004, the meaning of “abuse” is defined as including “the use of the child by a person for sexual arousal or sexual gratification of that person or another person”. Examples of sexual abuse for which redress may be possible under the scheme are given. The awards made by the Redress Board are required by the Act to be “fair and reasonable having regard to the unique circumstances of each applicant”. The Act also requires that in making an award the Board shall have regard to the regulations made by the Minister. Under the Residential Institutions Redress Act, 2002 (Assessment of Redress) Regulations 2002, redress is awarded under four headings, being (i) redress in respect of the severity of the abuse and injury; (ii) additional redress on the principle of aggravated damages; (iii) medical expenses; and (iv) other costs and expenses. In relation to (i) there is a two stage process. First, the Board assesses the weight to be attached to the different elements of the victim’s experience, according to a table, as follows:
Constitutive elements of Redress Severity of abuse Severity of injury resulting from abuse
Medically verified physical/psychiatric illnessPsycho-social sequelaeLoss of opportunity
Weighting 1 – 25 1 – 301 – 301 – 15
Thus the Board will first consider the severity of the abuse suffered by the individual applicant and make an award on a scale 1-25, with 25 representing the most severe abuse. Secondly, the Board will assess, by reference to the medical evidence, on a scale of 1-30 the severity of the physical and /or psychiatric illness suffered by the applicant as a result of the abuse. Thirdly, the Board assesses the psycho-social sequelae of the abuse. Finally, on a scale of 1-15, it will assess the loss of opportunity suffered by the applicant. When the four separate weightings are added together, the Board will “stand back” and look at the case overall to see whether the total assessment reached is reasonable in all the circumstances for that applicant and, where necessary, it will make appropriate adjustments. The amount determined is then awarded according to redress bands. These bands are as follows:
Redress Band
Total weighting for severity of abuse and injury/effects of abuse
Award payable by
way of Redress
V
70 or more
€200,000 – €300,000
IV
55 – 69
€150,000 – €200,000
III
40 – 54
€100,000 – €150,000
II
25 -39
€50,000 – €100,000
I
Less than 25
Up to €50,000
Thus it is envisaged that, in general, the maximum award under the scheme would be €300,000. However, where the abuse suffered by an applicant and the injury are considered by the Board to be so serious as to constitute an exceptional case which cannot reasonably be provided for within the redress bands, the Board may deviate from the scheme but it is required to inform the Minister of its reasons for so doing.
This specialised Board has established an elaborate system for assessing awards of general damages for sexual abuse of a child. The system is not a precedent for the Court. Nor am I suggesting that the intricacies of the scheme should be opened to a jury in a trial court. However, for the benefit of analysis in an appellate court, when considering the framework in which the sum of general damages for sexual abuse is assessed, it is informative.
14. Personal Injuries Assessment Board
The Personal Injuries Assessment Board Act, 2003 established the Personal Injuries Assessment Board, referred to as PIAB. The long title to the Act described it as an Act to enable, in certain situations, the making of assessments, without the need for legal proceedings to be brought in that behalf, of compensation for personal injuries (or both such injuries and property damage), in those situations to prohibit, in the interests of the common good, the bringing of legal proceedings unless any of the parties concerned decides not to accept the particular assessment or certain other circumstances apply, to provide for the enforcement of such an assessment, and for those purposes to establish a body to be known as the Personal Injuries Assessment Board and to define its functions and to provide for related matters. When this Act is brought into full operation it may apply to a civil action, by an employee against an employer, arising out of a road traffic accident, against another arising out of that other’s use or occupation of land, or any structure or building, and a civil action not falling within any of the above other than an action arising out of the provision of any health service to a person or an action for medical negligence.
While the Personal Injuries Assessment Board Act, 2003 does not apply to this case, s.22 (1) of the Civil Liability and Courts Act 2004 provides that the Court shall, in assessing damages in a personal injuries action, have regard to the Book of Quantum. Section 22 (2) provides that s.22 (1) shall not operate to prohibit a court from having regard to matters other than the Book of Quantum when assessing damages in a personal injuries action. In this section ‘Book of Quantum’ means the Book of Quantum required to be prepared and published by the Personal Injuries Assessment Board under the Act of 2003. The Book of Quantum states that it contains a guideline of injuries and related values. It lists injuries and levels of compensation. The guidelines relate to head injuries, arm injuries, neck, back and trunk injuries, and leg injuries. The highest level of awards are spinal cord injuries, in relation to which it states:
“The courts set the maximum compensation with the exact value being based on a number of considerations:
a) level of movement
b) level of pain and suffering
c) depression – level of achievable rehabilitation
d) age and life expectancy
Quadriplegia up to €300,000
Paraplegia up to €300,000”
While this is not a precedent for this case, it is informative. Its usefulness is limited, however, by the fact that it does not relate to purely psychological damage, and it does not relate to injuries for sexual abuse. However, it does indicate that in the most serious injuries, paraplegia and quadriplegia, the general damages are the highest awarded and that in general such an award maybe up to €300,000.
15. Nature of Injury
The nature of the injury to the plaintiff is complex and may be permanent. There are a number of important factors to be considered in analysing this injury. First, in this case the injury did not occur on a single occasion. It was not one sexual assault or one rape. Rather it was a continuum of abuse over years. This had an effect more than the individual assaults – it created a continuum. The consequence to the plaintiff was greater than the sum of the individual assaults. Secondly, the assaults and rape took place at a critical time in the life of the plaintiff; she was an adolescent. The consequence has been that her development was altered and subverted. Thirdly, the consequences to the plaintiff may be lifelong. The injuries inflicted upon the plaintiff have scarred her emotionally and developmentally. She may have emotional and intimacy difficulties for life. Fourthly, while the injuries to the plaintiff arise out of a continuum of sexual assault over five years at a vulnerable time in her life, this sexual assault ultimately developed into rape of the plaintiff. Rape is a most serious injury to a person. This was described in The People (D.P.P.) v. Tiernan [1988] I.R. 250 at p. 253 by Finlay C.J. as:
“The act of forcible rape not only causes bodily harm but is also inevitably followed by emotional, psychological and psychiatric damage to the victim which can often be of long term, and sometimes of lifelong duration.
…
Rape is a gross attack upon the human dignity and the bodily integrity of a woman and a violation of her human and constitutional rights. As such it must attract very severe legal sanctions”.
Thus, the general damages should reflect the very serious and possibly lifelong injuries.
16. Information on Awards of General Damages
There are no guidelines given to a jury, or indeed to a judge, as to the award of general damages in cases such as this, or indeed in any case relating to personal injuries. Information on awards of general damages in personal injury cases to assist a court, (in most cases now a judge sitting alone), is published in England and Wales and in Northern Ireland: see Guidelines for the Assessment of General Damages in Personal Injury Cases, published by the Judicial Studies Board of England and Wales, and Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland. In Ireland the Committee on Court Practice and Procedure advised, in the 29th Report, Inquiry to Examine all Aspects of Practice and Procedure relating to Personal Injuries Litigation, that there be published information on awards of general damages in personal injuries litigation, that the Judicial Studies Institute consider establishing a Working Group to gather, compile and publish such information, that resources be made available to enable the gathering of relevant information, and that the Rules of Court be amended to enable counsel to bring to the attention of the court, awards of general damages in earlier court decisions, and, when completed, any relevant judicial publication. I am of the view that information on awards of general damages given in previous cases and information published by the judiciary, benefits a court assessing general damages.
17. Monetary Remedy
The plaintiff has brought this action seeking an award of general damages for her injuries caused as a result of the sexual abuse of the defendant. The remedy available in the courts is monetary, a sum of money, as compensation. It must be recognised first and foremost that no award of money will put the plaintiff back in the position she was before the sexual abuse. No award of damages will retrieve her childhood or repair the damage done to her, emotionally, in her formative years. Further, no amount of money will cure her or render her future clear of the effects of these assaults. An award of general damages is an imperfect mode of compensating a plaintiff, however it is the only method available. It is a recognition of the injuries and damages must reflect the change of circumstances of the plaintiff.
At issue on this appeal is the award of general damages by a jury. In assessing the level of general damages, there are a number of relevant factors to consider. Thus an award of damages must be proportionate. An award of damages must be fair to the plaintiff and must also be fair to the defendant. An award should be proportionate to social conditions, bearing in mind the common good. It should also be proportionate within the legal scheme of awards made for other personal injuries. Thus the three elements, fairness to the plaintiff, fairness to the defendant, and proportionality to the general scheme of damages awarded by a court, fall to be balanced, weighed and determined.
18. Decision
I am conscious that this case is the first in what appears to be a new and developing jurisprudence. Consequently there are factors which may be argued and developed in future cases. This initial analysis will be enriched by the evolving law.
I am conscious also that this award was made by a jury. There is well developed jurisprudence that an appellate court should be slow to interfere with an assessment of damages by a jury. However, such assessments are subject to review.
There is no doubt that this is a case where a jury would be entitled to award substantial damages. But the damages awarded must be fair and reasonable and proportionate.
Having considered the facts and all the circumstances of the case, including the nature of the injuries of the plaintiff, the law on general damages for personal injuries, noting (but not applying) the Residential Institutions Redress Act, 2002, and making reference to the conduct of the defendant in admitting his guilt at an early stage of the criminal proceedings, I am satisfied that the sum of €600,000 awarded by the jury is so far in excess of a reasonable award of compensation that it is disproportionate and should be set aside. Therefore, I would allow the appeal on the assessment of damages.
The next question is the appropriate level of the award of damages. Once again I note that this is a new area of law and that it will be informed by jury awards and cases in the future. I anticipate that, in the way of common law, a corpus of cases will develop in the future to assist a Court in decision making.
I am satisfied that there should be a rational relationship between awards of damages in personal injuries cases. Thus the level and limitations of awards of general damages in personal injuries actions are informative.
The plaintiff is entitled to obtain as general compensatory damages a sum which will compensate her for the wrong she has suffered. The sum awarded should be fair and reasonable in all the circumstances. The sum should be proportionate to the injuries suffered by the plaintiff.
It is an unfortunate fact that, over the last decade, there have been many cases of sexual assault and rape of children before the courts. Consequently there is judicial knowledge of this dark side of Irish society. In that context, while this is a very severe and serious case, it is not the worst case scenario. Therefore, it would not be a case in which to award the maximum sum of general damages.
In assessing the injury suffered by the plaintiff it is relevant to consider the actions of the defendant. The defendant admitted the offence immediately on being interviewed by the Gardaí and pleaded guilty in the criminal trial at the first opportunity. He was sentenced to eight years imprisonment for the abuse in issue in this civil case. He leaves his wife to raise their four children. The steps taken by the defendant, his early admission, early plea, and apology, because they would have helped to alleviate the suffering of the plaintiff, are factors for consideration. Should he not have pleaded at an early stage or rendered an apology, the injuries to the plaintiff may have been further aggravated. The early plea of the defendant enabled the plaintiff tell her story in the criminal trial without having to suffer cross-examination. His counsel expressed an apology on the defendant’s behalf. While these matters are of limited relevance to the issue of compensation for the plaintiff, some weight may be attached to them. A comparison may be drawn to the situation if he had not taken such steps. Similarly, while an expression of remorse, through his counsel, is a factor, it is so rather to contrast the situation in this case with a case where it did not occur and where the conduct of a defendant may exacerbate the already occurring injuries of a plaintiff.
In all the circumstances of this case, I am satisfied that an award of general damages to the plaintiff should be at the higher end of the range of awards of general damages in personal injury actions generally. Bearing in mind all the circumstances of the case, and the relevant factors, the very serious injuries to the plaintiff, yet allowing that they are not the worst case scenario, I am satisfied that the appropriate award to the plaintiff would be €350,000.
Consequently, I would allow the appeal, set aside the award of €600,000 in respect of general damages, and substitute an order for €350,000 general damages.
Hession v Hession
[2005] I.E.H.C. 142, April 22, 2005,The plaintiff in this case, Claire Hession, is a fifteen and a half year old school girl who was born on 26th day of August, 1989 and she resides with her parents at Laraghmore, Ballyglunin, Tuam, Co. Galway.
Claire Hession comes to court seeking damages for injuries which she suffered on 7th day of August, 2003; at a time when she was nearly fourteen years of age as a result of an incident in which she was involved while playing in the yard adjoining her home aforesaid. On that occasion, her father’s car was parked in a hay shed in the said yard and, while she was playing with her puppy, the plaintiff noticed that her father’s car began to move despite the fact that there was no one in or near it. Apparently, the brake had been left off. Without thinking, the plaintiff rushed forward to try and stop the car and, inevitably, failed to do so and was crushed between the car and an adjoining wall. While there is no doubt but that it was very foolish for the plaintiff to attempt to stop the car, as she did, I am quite satisfied that her reaction, when she saw the car moving was an instinctive one arrived at on the spur of the moment which, in my view, is easy enough to understand, notwithstanding the risk involved. In particular, I am satisfied that the plaintiff did not deliberately expose herself to a risk of injury; that what happened was more or less involuntary. Accordingly, as the plaintiff was only fourteen years of age at the time, I am not persuaded that, as alleged on behalf of the defence, her conduct on the occasion amounted to negligence on her part. Accordingly, as liability has been conceded on behalf of the defence, the only issue that I have to decide is the amount of compensation to which Claire Hession is entitled.
As a result of the said occurrence, both of the plaintiff’s legs were crushed against a wall. However, she succeeded in extricating herself and, when help arrived, she was taken to University College Hospital, Galway and, ultimately, came under the care of Mr. Jack McCann F.R.C.S.I., a consultant plastic surgeon. While x-ray examination excluded any bony injury, she was found to have sustained severe soft tissue injuries to both legs. In particular, there was grazing of her right shin and bruising below her left knee. Initially, her treatment comprised dressings for the wounds and tubigrip support bandages for both legs. In addition, she was prescribed pain killing and anti-inflammatory medication and advised to elevate her legs when resting. She was then discharged from hospital. However, within a matter of days, she developed swelling of her right calf, bruising at the base of her right foot and sloughing of the tissue of the wound on her right foot. As a result, she was unable to bear weight on her right leg and neither could she extend her left knee fully. Her left leg was then encased in a pressure bandage and, sometime later, the wound on her right leg became infected and necessitated excision. It is unnecessary, I think, for the purpose of this judgment that I review in detail how the plaintiff’s injuries progressed during the weeks immediately following her accident or the treatment to which she had to submit on account of them because these matters are well documented in the several reports on her which have been submitted by Mr. John O’Donnell, a consultant in A&E medicine at University College Hospital, Galway, and Mr. Jack McCann aforesaid. It is sufficient to note that, as a result of her injuries, the plaintiff spent ten weeks in hospital during which she was subjected to two surgical operations under general anaesthetic involving debridement of a degloving injury to her right leg and the application of a split skin graft to that leg; the graft being harvested from her right upper thigh. In this regard, I have no doubt but that her stay in hospital was a very distressing and painful experience for the plaintiff. She was discharged home on 12th September, 2003 on crutches and it was another four weeks before she was able to mobilise without the assistance of crutches and, indeed, she told me and I accept that, after her discharge from hospital, she had to learn how to walk again. However, while she was reviewed in hospital from time to time, her recovery from the effects of her injuries appears to have been relatively straight forward. She did experience pain in her left leg on walking and her left knee clicked a little. However, with the passage of time these symptoms abated. Nevertheless, she still has to wear a support on her left knee when playing football. She also tells me and I accept that she experiences weakness in her left leg after standing for long periods of time and, indeed, when playing games. Nevertheless, having only missed three weeks of schooling, she was able to resume playing basketball and football and, indeed, participating in Irish dancing shortly after her return to school. In this regard, she told me that she had to resume Irish dancing or else she was going to loose her place in the class. She also tells me and I accept that she experiences pain in both legs in cold or frosty weather. Moreover, she has been left with a residual indentation of her right leg, which is very obvious and a source of considerable embarrassment to the plaintiff; so much so that she wears tights all the time so that people will not see her leg. She also has residual scarring on her right thigh and irregulatory in the appearance of her left leg below the knee. Having viewed both of the plaintiff’s legs, I can well understand why she is embarrassed by the appearance of her right leg because I accept that it is quite disfiguring. However, I do not consider that the residual irregulatory in the appearance of her left leg is of any great significance. In this regard, it is clear from Mr. McCann’s report that nothing can be done to improve the appearance of the plaintiff’s right leg and that, as a result of the lack of underlying fat on that leg, there is an area of diminished sensation and the leg is more sensitive to injury. Accordingly, Mr. McCann advises that the plaintiff wear protection when playing games. It is also clear from Mr. McCann’s report that the appearance of the plaintiff’s left leg cannot be improved.
Given the nature and extent of the plaintiff’s injuries and the treatment to which she had to submit on account of them, it is, in my view, to her credit that she only lost three weeks schooling and, on her return to school, was able to resume most, if not all, of her pre-accident activities. I have little doubt, however, but that, if she did, she had to break some pain barriers on the way. In my view, this young lady makes very little of her on-going problems with the exception of the appearance of her right leg and, to a lesser extent, that of the left leg. She is clearly very embarrassed by the appearance; in particular, of her right leg and is anxious to hide it from public gaze. I sympathise with her in that regard.
It is now nearly two years since the plaintiff’s accident and for all that she has had to put with on account of the injuries which she suffered during that period I will award her a sum of €35,000. As for the future, allowing that she is not yet sixteen years of age and that, for the rest of her life, the appearance of her right leg, in particular, will be a constant reminder of an accident in which she was involved through no fault of her own and that it is probable that she will spend a lot of time trying to hide the appearance of that leg from public gaze, for future general damages, I will award her a sum of €50,000.
Having regard to the foregoing and allowing that special damages have been agreed in the sum of €10,250, I will award the plaintiff damages amounting €95,250 and costs.
Approved: O’Donovan J.
Power v the Governor of Cork Prison [2005] I.E.H.C. 253, July 20, 2005
JUDGMENT of Mr. Justice Herbert delivered the 20th day of July, 2005
By virtue of the provisions of s. 3(2) of the Occupiers Liability Act, 1995, the defendants owed a duty to the plaintiff to take reasonable care in the circumstances to ensure that he did not suffer injury or damage by reason of a danger existing on the property occupied by them, he taking reasonable care for his own safety.
I accept the expert evidence of Mr. Vincent O’Hara, of the firm of Tony O’Keeffe and Partners, Consulting Engineers, Kanturk, who was called in evidence on behalf of the plaintiff, that the floor of the toilet on the second floor of B Wing of Cork Prison though safe when dry, is extremely dangerous when wet. I find that the defendants were fully aware of this danger and I accept the evidence of prison officer Hennessy that a sign in words and symbols warning that the surface was slippery was fixed on a wall in a prominent and highly visible location at the entrance to the toilet.
I accept the evidence of prison officers Murphy, Hennessy and, Abbott, that the toilet was constantly checked by prison officers throughout the day and that a prisoner was designated to clean this toilet each day, after breakfast, after lunch, after tea and at 20.00hrs. and, on any other occasion an officer considered that it required cleaning. I accept the evidence of the plaintiff, which was not in anyway challenged by the prison officers, that the wash-hand basins in this toilet were in constant and daily use by prisoners on this floor to wash their drinking and eating utensils. I accept the evidence of the plaintiff, which was not challenged by the prison officers, that no towels, paper rolls, napkins or electronic dryers were provided in this toilet. I accept the evidence of prison officer Murphy, which was not contested by the plaintiff, that all prisoners are issued weekly with a tea towel and hand towel in their cell.
It was accepted by prison officers Murphy and Abbott that occasionally water would get on the floor of this toilet and the cleaner would be ordered to dry the floor. In cross-examination prison officer Abbott accepted that this occurred quite frequently. This is scarcely surprising when one considers the evidence that there are 16 or more cells on this landing of B Wing. On the evidence, the only other place where prisoners could wash their eating and drinking utensils is the, “slop-out” area where chamber-pots are emptied and cleaned as this prison has no in-cell sanitation.
I accept the evidence of Mr. O’Hara, which was not contradicted or challenged, that without replacing the existing square 12 inch ceramic floor tiles with more appropriate non-slip tiles, the hazard created by the presence of even an almost imperceptible film of water on the floor of this toilet cannot be entirely eliminated. Mr. O’Hara gave the floor dimensions as 9ft x 13½ft and, I accept his evidence that the replacement of this floor could be accomplished easily and at relatively little cost. I accept the evidence of Mr. O’Hara that the absence of any form of drying equipment in this toilet must inevitably and foreseeably result in the floor becoming wet and therefore dangerous to persons using the toilet. I accept the evidence of Mr. O’Hara that while not very hygienic, the laying of non-slip mats on the floor of this toilet would go considerably towards preventing prisoners from slipping, even though such mats could themselves present a possible tripping hazard if not very carefully maintained.
I find on the evidence that a sufficient and effective cleaning routine was operated by the defendants with respect to this toilet. I am satisfied that a breakdown of this housekeeping system did not occur on 5th February, 2001. I find that in accessing the W.C. cubicle the plaintiff traversed without difficulty the same area of the toilet floor where he claims he subsequently slipped. He stated that he was in the W.C. cubicle with the door closed for a couple of minutes: in cross-examination he was prepared to accept about 2 minutes. He stated in evidence that he heard a number of other prisoners enter and leave the toilet in this time. He stated that he heard the taps running in the two wash-hand basins which are directly opposite the door of the W.C. cubicle and just over 4ft away. He told the court that when he emerged from the W.C. cubicle he was alone in the toilet. He said that he did not cross to the wash-hand basins but turned immediately to his left in the direction of the entrance to the toilet.
The plaintiff told the court that before he had completed this turn both his legs suddenly and without warning slipped from under him and he fell helplessly forward and in falling struck the left side of his forehead at the hairline above his left eye against a radiator panel which was affixed to the wall next to the wash-hand basins. This was the side of his forehead which would have been most remote from the radiator. The plaintiff told the court that as he was picking himself up he noticed that an area of the floor, which he described as being almost 3 tiles square and lying, between the door of the W.C. cubicle and the wash-hand basins, was covered with a layer of water. He did not say, as is alleged in the Replies to Particulars that the, “floor was waterlogged”. He described the patch of water as the equivalent of the contents of a glass which had fallen on the floor and spread. He told the court that after this fall his clothes were, “ok”, but that he was bleeding heavily and was afraid that blood would stain his clothes, of which he did not have many. He said that blood from his forehead was dripping onto the floor so that he re-entered the W.C. cubicle which he had just left and there made a wad of toilet tissue and pressed it to his forehead to try to staunch the bleeding. He told the court that during this time he saw no other prisoner inside or outside the toilet but that when he got to the entrance door to the toilet, – which is really only a swinging panel, – prison officer Abbott arrived on the landing side of the door coming from the plaintiff’s left.
B. Wing, second floor of Cork Prison, consists of a rectangular open well surrounded by landings with individual cells opening unto the long axes, only, approximately eight cells on each side. On the right of the entrance to the toilet as the plaintiff emerged onto the landing, and about three feet distant, was a steel grill closing off the entire of the Wing. There are two doors in this grill, one facing each landing. Outside this grill is an area containing a Medical Station and stairs leading down to the first floor of B. Wing. There is a similar system of grill and gates on the opposite side of this area closing off access to A. Wing. Prison officer Murphy recalled that on 5th February, 2001 at about 16.20hrs. She was stationed between these grills supervising the access gates. Prison officer Hennessy told the court that all the prisoners whose cells were on the landing on the opposite side of the central well to this toilet were secured in their cells and having their tea and she was carrying out a head count. Prison officer Abbott told the court that he was securing prisoners in the cells on the landing on the same side as this toilet. The evidence of the prison officers and of the plaintiff was that it was tea time and prisoners in B. wing second floor, having obtained their food and tea on a lower floor and carried it upstairs to their cells, were being secured in their cells while they partook of the meal. Prison officer Abbott told the court that the landing outside this toilet was about twice the length of the court, or approximately seventy feet, while prison officer Murphy considered it to be three times the length of the court or approximately 105ft.
Prison officer Abbott told the court that he had secured about one half of the cells on his landing and was about 35ft from the entrance to the toilet, moving in that direction, when he noticed three prisoners in the area of the toilet door whom he considered to be acting suspiciously. Pressed on the matter in cross-examination, he said that his suspicions had been aroused by the fact that these men appeared to be taking an unnecessary and undue interest in his whereabouts. These men were between him and the security gate in the steel grill behind which prison officer Murphy was standing. Prison officer Abbott said he did not see them entering or leaving the toilet. He could not recall their names and he agreed that they could have been returning to their cells from a lower floor, from classrooms or work assignments. In any event, he decided to investigate. He told the Court that as he walked towards the entrance to the toilet prison officer Murphy called to him and said, “someone is bleeding in the toilet”. His evidence in this regard is supported by that of prison officer Murphy. She told the court that at about 16.30hrs. a prisoner had come out of the toilet, approached the security grill and said to her, “Miss. there is a fellow bleeding in the toilet”. In cross-examination she corrected this account to say that she had not in fact seen this prisoner actually coming out of the toilet but as she had first noticed him standing at the door of the toilet she had assumed that he had come from there. She told the court that it was a very busy time with lots of prisoners moving about and she was fully absorbed in opening and closing the four security gates and had not noticed the prisoner before this. She accepted, as did prison officer Abbott that the interior of the toilet is clearly visible, viewed from above and below the swinging panel entrance door. Prison officer Murphy told the court that she asked this prisoner, whose name she could not recall, what had occurred. She said he just shrugged and walked away in the direction of the cells. Prison officer Abbott told the court that when he arrived at the entrance door to the toilet the three or four men who had attracted his attention had passed by. He said that when he met the plaintiff at the entrance door to the toilet the plaintiff was holding a bloodied wad of toilet paper to his forehead. He asked the plaintiff, “did you get a belt or something?”. The plaintiff replied that he had fallen. Prison officer Abbott in cross-examination admitted that he had not heard any noise coming from the toilet as he approached. He believed, he said, that if there had been any commotion in the toilet, prison officer Murphy would have heard it as she was standing only two or three feet away from the toilet door. Prison officer Abbott said that he again asked the plaintiff had he, “got a belt” and, the plaintiff replied that he had not but had fallen. Prison officer Abbott said that he decided to take the plaintiff to the medical station which was immediately outside the steel grill.
Prison officer Murphy said that she had also asked the plaintiff what had happened and he replied that he had fallen in the toilet. She said that she did not question him further and allowed the plaintiff, accompanied by prison officer Abbott, to exit through the security gate and enter the medical station. She said that she then called to prison officer Hennessy and informed her that, “Joe Power said he fell in there”, pointing to the toilet. Prison officer Hennessy was the ranking officer on this occasion. Prison officer Murphy accepted that there could have been two or three prisoners between her and prison officer Abbott as he approached the entrance door to the toilet. Prison officers Murphy and Abbott agreed that the toilet was not a suitable place for washing eating and drinking utensils but said that there was no other facility available for that purpose except the slopping out area at the other end of the landing which they considered far less suitable. Prison officer Murphy agreed in cross-examination that there was no Prison Regulation requiring prisoners to bring their issued tea towels or hand towels to the toilet and she felt that such a regulation would in any event be unworkable, – a sentiment with which I entirely agree.
Prison officer Hennessy told the court that on 5th February, 2001, she had twelve years experience in the Prison Service. She said that when prison officer Murphy had told her that the plaintiff had injured himself in the toilet she immediately entered the toilet and visually examined the entire area conscious of the fact that she would have to complete an Incident Report Form and also report on the matter to her Supervising Officer. She said that she saw no evidence of any liquid, including droplets of blood on any part of the toilet floor. In her opinion every part of the toilet floor was completely dry. It was put to her in cross-examination that as the floor tiles were an off-white colour with multiple random dark specs it would be very difficult to see water on the floor, especially a thin film of water. Prison officer Hennessy disagreed. She accepted that she did not know where on the floor the plaintiff claimed he had fallen. The plaintiff said that he had seen the water only because he had fallen and while on the floor had looked to see why he had slipped. The plaintiff did state in evidence that he believed that anybody looking very carefully would see the water. However, there was no evidence before the court that the plaintiff had told either prison officer Murphy or prison officer Abbott exactly where or why he had fallen. Prison officer Murphy had said no more to prison officer Hennessy than, “Joe Power said he fell in there”.
I find on the evidence, that unless she knew exactly what area of the toilet floor to examine and had then squatted or bent down very close to the surface of the tiles even an observer of prison officer Hennessey’s experience could have been deceived by a visual examination into believing that the surface of the floor was dry, especially in the absence of directional light. I am satisfied that the general off-white colour and dark speckled surface of the tiles could without difficulty conceal blood spots unless one was very carefully looking for them. On the evidence, no one had advised prison officer Hennessy that the plaintiff was bleeding and she did not see him herself. In the circumstances, while fully satisfied that prison officer Hennessy did in fact carry out a careful visual examination of the toilet area including the floor, I am not satisfied in the circumstances above mentioned that the court could unquestioningly accept her conclusion that the floor was completely dry and free from blood spots so that the plaintiff’s account of what he claimed had occurred to him must be rejected as false.
This plaintiff has never deviated from his account of having fallen on this toilet floor and struck his forehead on the radiator. He said that this was what he told Mr. Stack in the prison medical station and this was not challenged or contradicted by the defendants. Mr. Stephen Cusack, Consultant in Accident and Emergency Medicine in his report of 30th October, 2001, admitted into evidence, records that the patient on 5th February, 2001, at the accident and emergency department of Cork University Hospital gave a history of having fallen on a toilet floor and struck his head resulting in a wound on the left side of his forehead. Mr. Cusack recorded that the plaintiff had confirmed this history at review on 26th October, 2001. Mr. Cusack was of the opinion that the injury and scalp wound suffered by the plaintiff were consistent with this history. The plaintiff related evidence that when he gave this history he was in the immediate close presence of two prison officers.
The plaintiff accepted that he had made no complaint to the Prison Authorities at the time of this alleged accident. He explained that he had not done so as he was uncertain how such a complaint might be received and he was concerned that it might in some way delay his release from prison. However, on 15th May, 2001, he wrote from Cork Prison to Mr. Michael Buggy, Solicitor, of Michael Buggy and Company Solicitors, Kilkenny, asking him to:-
“deal with a claim that I wish to make here in Cork Prison. I had an accident here in February. I slipped in the toilet on the landing and hit my forehead on a radiator…”
Acting on this letter Michael Buggy and Company wrote to the first named defendant making a claim on behalf of the plaintiff on 4th September, 2001.
In cross-examination it was put unequivocally to the plaintiff that he had in fact been assaulted in the toilet area by the men prison officer Abbott considered to have been acting suspiciously and, that he was falsely claiming to have sustained the injuries complained of as a result of slipping on the floor. The plaintiff accepted that he had three convictions for assault and that on 4th April, 2001, just four weeks prior to the alleged accident, he had been summoned before the first named defendant for fighting with a fellow prisoner. The plaintiff told the court that each of the assaults of which he had been convicted had occurred when he was under the influence of drink. He said, and it was not contradicted by the defendants, that the incident on 4th April, 2001 was a verbal altercation only relating to the delivery of mail to his cell and, that he and the other prisoner involved had shaken hands before the Governor of the prison. The plaintiff told the court that if he had been attacked by other prisoners in the toilet he would have vigorously defended himself and that it would have been impossible for prison officer Murphy, who was standing only a few feet away, not to have heard that something unusual was going on in the toilet.
While I accept that it is not unknown for prisoners to attack and inflict injuries on each other while in prison, I find that it is altogether improbable that this plaintiff was assaulted on this occasion in this toilet. The alleged assailants would have had to have carried out a very vicious assault, with almost certain serious consequences for themselves, at a time when they were completely surrounded by three prison officers and with scarcely any chance of escaping detection and recognition. Prison officer Murphy was just a few feet away from the toilet in one direction, which, in addition, was closed off by a steel grill. Prison officer Abbott was rapidly approaching along the landing from the other direction and prison officer Hennessy was on the opposite side of the open central well with totally unimpeded visibility. In addition, on the evidence of prison officer Hennessy, all the prisoners on the landing on her side of the open central well were secured in their cells. Prison officer Abbott stated that he had secured more than half of the cells on the landing on his side. I find it improbable, in the absence of some compelling evidence, that even the most strongly motivated assailant would choose to carry out a vicious assault in such circumstances. I think it also meaningful that no assault investigation was conducted by the Prison Authorities following this event.
The plaintiff in cross-examination asserted that he was 100% sure that the notice in black and yellow warning, “danger slippery surface”, shown on photograph No. 8 taken by Mr. O’Hara and proved in evidence by him, was not there on 5th February, 2001, or even when he left the prison on 3rd October, 2001. Photographs produced on behalf of the defendants, admitted into evidence and accepted to have been taken on 7th September, 2001, show the same or an identical notice in place in what appears to be the same position on the wall at the entrance to the toilet. On the balance of probability, given this evidence and the evidence of prison officer Hennessy that a notice of this type had been in place for at least two years prior to 5th February, 2001, I find that this warning notice was in place on the afternoon of 5th February, 2001. The plaintiff in cross-examination admitted that he knew that the toilet floor became wet when prisoners washed their eating and drinking utensils in the wash-hand basins. He admitted that he had heard other prisoners washing their eating and drinking utensils in these wash-hand basins while he was occupying the W.C. cubicle.
I find on the evidence to which I have adverted, on the balance of probabilities, that the plaintiff did in fact slip and fall as he alleges and in falling somehow struck the more remote side of his upper forehead against the radiator affixed to the wall next to the wash-hand basins. No expert or technical evidence was offered to show that this was impossible and, I am satisfied, given the very confined area in which this fall occurred, that it would require a very minor rotation of the plaintiff’s upper body as he fell to bring his left forehead into contact with the edge of the radiator.
I find that it was reasonably foreseeable by these defendants that if they did not discharge the duty of care, which I find they owed to all prisoners including this plaintiff obliged to use this toilet, to take reasonable care to ensure that the floor was either kept dry or was covered with non-slip mats, that an injury of the type of which the plaintiff complains could occur. I find that the plaintiff was a person whom the defendants should have had in their contemplation as someone likely to be injured if they did not properly discharge this duty of care. I find that the plaintiff suffered the injury of which he complains as a direct consequence of having slipped and fallen as a result of the defendant’s breach of their duty to take care. I find that there is no overriding requirement of social utility that these defendants ought to be exempt or excused from the consequences of their breach of duty. In the circumstances I find that the defendants were guilty of negligence as alleged.
I find that there was no contributory negligence on the part of the plaintiff. Even if he was or ought to have been aware of the warning notice that the floor was slippery: even if he knew that as a result of the activities taking place at the wash-hand basins which he admitted hearing while in the W.C. cubicle, the floor outside that cubicle was likely to be wet, there is no evidence that there was something which the plaintiff did or failed to do which amounted to recklessness for his own safety in the particular circumstances. It was not suggested that his footwear was unsuitable or unsafe. It is obvious from the photographs taken and proved in evidence by Mr. O’Hara and, which it was accepted showed the toilet as it had been four years previously, that there were no handrails and no alternative route which the plaintiff could have held, or taken to avoid the area of the floor on which he slipped. It was not suggested that the plaintiff was running or hurrying unduly or otherwise behaving inappropriately in anyway. I find that there was no duty on the plaintiff to scrutinise the floor with particular care before deciding where to place his feet. I accept the evidence of the plaintiff that when he exited the W.C. cubicle he immediately started to turn to his left and did not cross the floor in the direction of the wash-hand basins. I find that in the circumstances as previously outlined the plaintiff had taken all reasonable precautions for his own safety.
The plaintiff stated that he had slipped without any warning and had fallen heavily and helplessly forward striking the area of his left forehead above his left eye near the hairline on a radiator affixed to the wall. He said that he was dazed but was not rendered unconscious. The wound was dressed by Mr. Stack in the prison medical station only a few feet from where the accident occurred and the plaintiff was then sent by Mr. Stack to the accident and emergency department of Cork University Hospital for further investigation. The plaintiff told the court that he was slightly disorientated and had a fierce pain in his head. At the hospital a diagnosis was made of a mild head injury with a two centimetre wound on the left side of the plaintiff’s forehead around the level of his hairline. The plaintiff was found to be alert and all his vital signs were stable. The wound was dressed and closed with a combination of tissue, glue and steri-strips and the plaintiff was then discharged.
The plaintiff told the court that for several months, up to about October, 2001, he suffered from headaches which gradually decreased in number, duration and pain intensity. He was reviewed by Mr. Stephen Cusack, Consultant in Accident and Emergency Medicine on 26th October, 2001. Mr. Cusack recorded that the plaintiff told him on that occasion that the headaches were then occasional, could occur up to three times per week and last up to three hours. He took paracetemol to relieve the pain and discomfort. Mr. Cusack formed the opinion that these headaches were consistent with post-concussional type headaches and he expected that they would improve and resolve over the coming months.
Mr. Cusack found that the scalp wound had healed uneventfully but that the plaintiff was left with a two centimetre livid scar and there was slight tenderness in the region of that scar. In his opinion on 26th October, 2001, this scar constituted no great cosmetic blemish. I examined this scar on 11th July, 2005. I find that this scar is at most a mild cosmetic blemish at conversation distance and is almost entirely concealed by the plaintiff’s hair which he has deliberately styled to achieve this purpose. The plaintiff told the court that the scar becomes more noticeable in hot weather and was still somewhat touch sensitive.
In accordance with the provisions of s. 22 of the Civil Liability and Courts Act, 2004, I had regard in assessing damages to the provisions of the Personal Injuries Assessment Board, Book of Quantum, but found there no indicated parameters of compensation for this type of injury. I find that the plaintiff had substantially recovered from the headaches within twelve months from the accident and that while unpleasant, these headaches were not at any time seriously disabling. Undoubtedly the plaintiff will have a permanent two centimetre scar on his left forehead at the hairline above his left eye which may well become more noticeable in very hot weather. I consider that this scar constitutes at most a mild cosmetic blemish which really could not, and, on the evidence does not, cause any real social embarrassment to the plaintiff.
For pain, discomfort and inconvenience to date I award this plaintiff the sum of €10,000. I award him an additional sum of €6,500 in respect of the scar. The court was advised that there is no claim for special damage in this case.
Daly v Mulhern
[2005] I.E.H.C. 140, April 22, 2005
Judgment O’Sullivan J. delivered the 22nd day of April, 2005
The plaintiff sustained whiplash type injuries when her car was hit from the rear by a car driven by the first defendant on 21st July, 2001.
The only evidence in the case has been the evidence of the plaintiff and her consultant physician and rheumatologist, Dr. Dominic Cooke. The plaintiff is aged 55, is separated and has three grown up children and lives on her own at Ballyshannon, Co. Donegal. At the time of the accident she had been working for nine years as a cleaner in a bakery at Ballyshannon. This was heavy manual work and her shift on each of five days in the week was from 2am to 2pm. The accident happened on a Saturday morning as she was driving towards Ballyshannon. The car in front of her stopped blocking her progress so she stopped. As she was about to pull away she was hit from the rear by the first defendant’s car. She got a severe shock.
Her unchallenged evidence was that the first defendant came out and said “I’m really sorry” and pointed to the fact that he was wearing flip flop shoes, that these were unsuitable and that he had hit the accelerator instead of the brake. He told her there was no need to call the police and that they would sort it out if she called out to him. They were at the scene between ten and twenty minutes outside McNulty’s Garage. Later she went to his house and he said he would see her right but nothing happened and she ultimately went to her solicitor and the instant proceedings were initiated. There is a claim for aggravated damages arising out of the manner in which the defence was conducted and I will therefore return to the facts relating to this at a later point.
Injuries
The plaintiff felt very sore the next morning in her back and neck. She went to her general practitioner who advised painkillers which were effective but the effect wore off. The injury affected her ability to move and to do housework. However, because she was self supporting she had to return to work which she did within two weeks and continued working but in Autumn she reduced her work load to three shifts a week. She had headaches, relied on some friends to help her with her housework and has been working three shifts a week ever since. Her symptoms of soreness, pain and stiffness and reduced mobility continued beyond the normal period of 18-24 months and still persist at the date of hearing. Her doctor (Dr. Cooke) advised physiotherapy but she only tried this a few times and gave it up because of the pain. Sometimes her back gets really bad and there is also pain in her neck. She has a lot of bending, carrying and moving heavy buckets at work. She has to use a high pillow for sleeping; if she does not she wakes in the morning with pain. She suffered pain going down her arms first about two months after the accident. She has this pain and pins and needles especially in the morning every day for an hour or two and it has been constant for the last few years. She saw her general practitioner for perhaps a total of six times in the years since the accident. She was advised to take painkillers and anti-inflammatories and she has been taking paracetemol and panadol.
She has suffered loss of earnings but has made no claim for this because, as her counsel put it, of the manner in which she was paid.
She also gave evidence that she heard from her solicitor of a letter from the first defendant written on 5th December, 2002 in response to a letter to him of 28th November saying:
“Your client has already come to my door enquiring as to whether she had an accident with myself or any of my drivers, while she had drink taken I was unaware she was in any doubt as to the clarity of my answer, which was an unambiguous no.”
She said that when her solicitor told her about this letter she suffered an awful lot of stress, she couldn’t believe that he denied the accident, she was most particularly hurt about the allegation that she was drunk – as she understood it at the time of the accident. She was hurt about the implication that she had fabricated the accident.
Dr. Cooke gave evidence that the plaintiff first visited him on 31st August. He gave a history consistent with her evidence in court and complained of headaches, severe neck pain and stiffness going out into both arms, pins and needles and numbness in arms and fingers of both hands and severe back pain radiating to both thighs. On examination she had marked restriction of all movements of the cervical spine but no gross neurological deficit in the upper limbs. She had marked painful restriction of all movements of the lumber spine, hips and knees. Her injuries he described as still very acute. Over two years later on 21st November, 2003 she came to him again and told him that she had improved but still had a lot of neck pain and stiffness with pain and numbness in both hands particularly in the mornings and occasionally during the night but rarely during the day. She gets some back pain as well. On examination he found full movement of the neck shoulders and arms with pain at the extremes of movement of the neck but no restriction or spasm. He was concerned that the parasthesia and numbness in both hands had been present since the accident and is related to the neck injury and advised an MRI scan. This was done and on 1st February, 2004 Dr. Cooke reported that the scan showed degenerative disc disease at the C6/7 level and some degree of narrowing of the spine at the C4/5 level. These degenerative changes of the cervical spine were giving rise to some degree of nerve root irritation and that was responsible for the parasthesia and numbness. Her symptoms were predominantly soft tissue injuries but occurring on a background of cervical degenerative disc disease which had been aggravated by the accident and rendered painful and also nerve root irritation. The symptoms were likely to be prolonged.
The last time Dr. Cooke saw the plaintiff was on 4th December, 2004 and she told him she had not improved to any great extent and continued to have a lot of pain and stiffness in her neck, down into the shoulders, between the shoulder blades and parasthesia and numbness in both hands. She also experienced low back pain radiating down both legs. She finds the work in the bakery difficult and has to take pain killers virtually ever day. They help her and enable her to do her work. He then considered that she would have neck pain for at least six to twelve months but in evidence said that he thought that this pain would last even longer. He said that if she had not had the accident she would have remained symptom free until well into her sixties notwithstanding the pre-existing degeneration shown on the MRI. She has had all the treatment that she could be given and her reaction to physiotherapy was what he described as the standard reaction. He has what she described as a “half good neck” and he would not agree under cross-examination that her description of her pain was exaggerated.
Special damages have been agreed at €1,808.29.
In my opinion in light of the foregoing the plaintiff is entitled to ordinary compensatory damages of €25,000 to date and €10,000 further for pain and suffering in the future.
Aggravated damages
There is, in addition, however, a claim made on her behalf that she is entitled to aggravated damages. This is put upon the basis that
1. There was a clear admission made personally by the first defendant at the scene of the accident and at his house that he was responsible for the accident and would see the plaintiff right (there being no need to have the police involved in the circumstances);
2. That when the first defendant was written to, he wrote back in terms of the letter already quoted effectively accusing the plaintiff of fabricating the accident. (Her understanding of the letter was that he was alleging that she was drunk at the scene of the accident but my reading of it is that he was alleging that she was drunk when she turned up at his house some days later);
3. This stance of the first defendant was maintained throughout the conduct of the case and in particular
(a) notwithstanding the submission to the first defendant’s solicitors of a list of three independent witnesses to the accident which was furnished in early 2004, and
(b) in the context of an application by the plaintiff for discovery against the first defendant brought before the master of the High Court in late 2004 when again an affidavit was sworn on behalf of the first defendant to the effect that his position was that the accident never occurred. (It should be explained in this context that the plaintiff had not at any point identified the car allegedly being driven by the first defendant and I am told the Master of the High Court refused discovery unless she did so on affidavit)
4. Reliance is also placed on two letters from the first defendant’s solicitors dated respectively 11th November, 2004 and 7th March, 2005. The first states with reference to the defence (which denies the existence of the accident, or that the first defendant’s vehicle collided with the plaintiffs’ and put the plaintiff on full proof) and said “the first named defendant is a stranger to the allegation contained in the statement of claim.
This matter will be contested at the hearing…” and it was stressed that an order for costs against the plaintiff would be sought if the defendant succeeded. It stated that “we are at a loss to understand your request for confirmation re insurance cover given the nature of the defence.”
The second letter of 7th March, 2005 said, in the context of the striking out by the master of the plaintiff’s motion for discovery
“…we hereby call upon you to confirm in writing the plaintiff no longer intends proceeding as against the first defendant. In the event that we should fail to receive such confirmation by return of fax, this letter will be tendered to the court to have the plaintiff fixed with all costs incurred by the first named defendant…”
In response, counsel for the first defendant submits that these are typical repostes to be found in many cases where the plaintiff is put fully on proof. Even in cases where a defendant’s denial that the accident occurred is found to be wrong and the plaintiff’s allegation succeeds no question of aggravated damages arises: the matter simply falls to be covered by compensatory damages in the ordinary way.
I have been referred, by Mr. Cooney S.C. to authority on aggravated damages as follows:
1. The judgment of Finlay C.J. in Conway v. INTO [1991] 2 IR 305 and especially at 317;
2. The judgment of Keane J. (as he then was) in Cooper v. O’Connell (unreported: High Court: 5th June, 1997); and
3. The judgment of Keane C.J. in Swaine v. Commissioners of Public Works [2003] 1 IR 521 at 528
In Swaine, O’Neill J. in the High Court had awarded the plaintiff £45,000 for general (compensatory) damages and £15,000 by way of aggravated (compensatory) damages for a condition of chronic anxiety neurosis caused by the defendant’s negligence in exposing him to the risk of contracting mesothelioma (a relatively uncommon disease which when contracted is fatal). The plaintiff had been required to work in the Leinster House Complex and during this work he was exposed over a lengthy period of time to very large quantities of asbestos dust. Whilst this had no immediate consequence to his health it did expose him to a risk of mesothelioma. As a result of becoming aware of this risk a plaintiff of suffering from “a chronic reactive anxiety neurosis”. The defendant’s negligence was described by the trial judge as “negligence of the grossest kind” a description with which Keane C.J. concurred. In doing so he pointed out that the defendants were seriously remiss in not taking elementary precautions for the plaintiff’s health; they did not even have the excuse that they were not aware at the time of the dangers associated with asbestos dust – rather, they were fully aware of those risks and when they employed contractors their workers unlike the plaintiff were given protective clothing and head gear. The plaintiff had been given no warning whatever of the dangers to which he had been exposed. Keane C.J. did not think it possible in those circumstances to dissent from the trial judge’s finding that it was “negligence of the grossest kind”. He went on to say:
“However, whether that entitled the trial judge to award an additional sum of £15,000 by way of aggravated damages is another matter entirely. It was agreed in this court that the generally accepted statement of the law as to the circumstances in which a court can award aggravated damages is to be found in the judgment of Finlay C.J. in Conway v. Irish National Teacher’s Organisation…He said at p. 317:-
‘Aggravated damages…are compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements are oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) the conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in anyway finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in particular also a recognition of the cavalier or outrageous conduct of the defendant.’
….although the then Chief Justice in the passage which I have quoted emphasises that the list of circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”
Keane C.J. then proceeded to take the three categories one by one. In regard to the first category he observed that the consequences for the victim will often have little or no relation to the degree of moral culpability associated with the negligent conduct. With regard to the second category dealing with the conduct of the defendant after commission of the wrong, he observed that people involved in a road traffic accident may not apologise, for example, because they are too shocked and when they recover the matter is out of their hands. In regard to the third category he said:
“The same considerations apply to the third category, i.e., the conduct of the wrongdoer in the defence of the claim of the wronged plaintiff: most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”
In further support for his tentative conclusion that aggravated damages may not be available under our law in cases of negligence or nuisance he suggested that one would more likely expect to find such awards in cases where damages are traditionally described as being “at large” and where the intention of the defendant to commit the wrong is frequently a precondition to liability – typically defamation or malicious prosecution. He referred to the judgment of Woolf J. in Cralj v. McGrath [1986] 1 AER 54 at p. 61 where Woolf J. emphasised the compensatory role of damages as distinct from the suggested role to reflect the degree of negligence or breach of duty involved. Keane C.J. had pointed out that the negligence by the defendant consultant obstetrician was described as “horrific” and “completely unacceptable”.
Keane C.J. also referred to A.B. v. South West Water Services Limited [1993] 1 AER 609 where the plaintiff suffered ill effects as a result of drinking contaminated water from the defendant water undertaker’s drinking water system. Exemplary and/or aggravated damages were claimed on the basis that the defendants had acted in an arrogant and high handed manner by ignoring complaints made by their customers and also had deliberately misled them by telling them that the water was safe when they knew otherwise. Nonetheless the court of appeal held the plaintiffs could not recover exemplary damages. Nor could they claim aggravated damages for their anger and indignation at the defendant’s high handed conduct because they could only claim compensatory damages, anger and indignation not being proper subjects for compensation.
Sir Thomas Bingham M.R. said at p. 532, emphasised that the plaintiffs were entitled to be fully compensated for all they suffered and that the ordinary measure of compensatory damages would cover everything suffered as a result of the breach, physically, psychologically and mentally. Full account would be taken of the distress and anxiety which such an event necessarily causes. He went on, however:-
“To the extent that any of these effects was magnified or exacerbated by the defendant’s conduct, the ordinary measure of damages will compensate them. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages…. I know of no precedent for awarding damages for indignation aroused by a defendant’s conduct.”
Sir Thomas Bingham M.R. went on to state his opinion that defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (such as by aggressive cross-examination or persistence in a groundless plea of justification) was not a true exception because injury to the plaintiff’s feelings and self esteem is an important part of the damage for which compensation is awarded.
Having referred, in addition, to a further judgement “which is not at first sight easy to reconcile with the decisions to which I have just referred” namely Appleton v. Garreth [1996] P.I.Q.R. 1 (where a dentist carried out unnecessary treatment deliberately concealing this fact from the patient to ensure continued consent for financial gain) and where the plaintiff was awarded aggravated damages, Keane C.J. commented that that case was framed in trespass which might explain why aggravated damages were thought appropriate. Accordingly, in Cooper v. O’Connell which was a case framed in negligence only, Keane C.J. distinguished Appleton from Cooper.
Accordingly, Keane C.J. reached a tentative conclusion in Swaine as follows:
“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which, in actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued.”
He continued, that in the present case, the fact that the defendants were unquestionably guilty of “the grossest negligence” did not of itself entitle him to aggravated damages, but went on to add,
“…in the absence of circumstances such as those referred to in the judgment of Finlay C.J. in Conway v. Irish National Teacher’s Organisation… or factors of a similar nature.”
From the foregoing, it is clear that the Supreme Court in Swaine (all four other judges agreed with Keane C.J.) has not decided that there are no circumstances in actions for negligence where aggravated damages may be awarded. On the contrary in referring to the possibility that such a conclusion might be left for a case in which the matter is fully argued the Chief Justice concludes his judgment in Swaine by indicating that the plaintiff in that case was not entitled to aggravated damages because of “the absence of circumstances” such as those indicated by Finlay C.J. in Conway.
Furthermore, it is striking that the authorities considered by Keane C.J. in Swaine appear to be considering primarily categories (a) and (b) of the three identified by Finlay C.J. in Conway rather than, specifically, the conduct of the wrongdoer…in the defence of the claim of the wronged plaintiff up to and including the trial of the action. Whilst this latter category was considered by Sir Thomas Bingham M.R. in A.B. v. South West Water Services Limited, this consideration, so far as cited by Keane C.J. was confined to cases of defamation as distinct from cases where the defendant after the commission of the wrong actually misled and deceived the plaintiff as to his proposal to make good and compensate the wrong to the plaintiff, or where a defendant added insult to injury by completely denying the incident (having apologised and promised not once but twice to compensate her) thereby implying that the plaintiff had fabricated it.
These latter features of the present case seem to me to fit squarely into the third category identified by Finlay C.J. in Conway’s case namely the:
“…conduct of the wrongdoer…in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”
The plaintiff gave evidence that she suffered stress, upset and hurt when her solicitor made known the defendant’s letter to her denying the existence of the accident and referring to her drunkenness (albeit, as I read his letter, at the time she visited his house rather than at the scene of the accident itself). In my view this hurt is an additional element of distress, upset, anxiety and humiliation arising out of the accident which would not have been suffered by the plaintiff had the defendant made good his promise given to the plaintiff at the scene of the accident and a few days later when she first called to his house. I see nothing in the authorities referred to in Swaine nor, indeed, in the observations of Keane C.J. in that case to indicate that an award of aggravated damages in these circumstances is not available to the plaintiff under our law and it is clear that insofar as the judgment of Finlay C.J. in Conway’s case is concerned this conduct on the part of the defendant does justify the making of an award of aggravated damages.
Finally, this conclusion is entirely consistent with the recent decision of the Supreme Court in Philip v. Ryan, a negligence case, (unreported: 12th December, 2004), where McCracken J., speaking for the court said:-
“In reviewing the law at the beginning of this judgment, I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded.”
O’Sullivan (A Minor) v. Kiernan & Anor
[2004] IEHC 78 (2 April 2004)
JUDGMENT of O’Neill J. delivered the 2nd day of April, 2004.
In this action the plaintiff seeks damages for negligence arising out of an injury she suffered in the course of her delivery by the first named defendant, a consultant obstetrician at the second named defendant’s hospital known as the Bon Secours Maternity Hospital, College Road in Cork.
It is common case that in the course of the plaintiff’s delivery on 20th January, 1996, she suffered a fractured clavicle and a stretching type injury to her brachial plexus which resulted in what is known as an Erbs Palsy.
The plaintiff is the first child of her parents, the next friend herein her father and her mother Ann O’Mahoney who were married to each other in 1995. The plaintiff’s mother is a solicitor by profession.
The plaintiff’s expected date of delivery was 27th January, 1996, however early on the morning of the 20th January, 1996, she intimated an early arrival. At approximately 5.00 am her mother’s waters broke. She contacted the second named defendant’s hospital and was given advice. It became apparent coming up to 8.00 that her pregnancy was coming to an end and she contacted the hospital again and was told to come in. With her husband she drove to the hospital and was admitted in the usual way and put into a room or delivery suite. In this room there was a single bed, purpose designed for birthing, washing facilities, a small desk, a bean bag and a CTG machine. This was located just inside the door to the right. There was also a trolley containing the appropriate instruments for delivery and also a trolley containing what is known as a Venteuse machine which is a vacuum machine.
At or about 9.30 the plaintiff’s mother had her first encounter with the first named defendant. The plaintiff had not been a patient of the first named defendant during her anti-natal care. She was the patient of a colleague of the first named defendant, a Dr.Corr. Because she came into hospital on a Saturday Dr. Corr was not on duty and the system that was operated in the hospital was that each consultant would be on duty for one weekend out of three or four. The first named defendant was on duty on this particular weekend.
There was controversy as to what happened at this first encounter. It was Ms. O’Mahoney’s evidence that the first named defendant did not introduce himself in the ordinary way but stood in the doorway of the room and in an admonishing fashion while waving his finger said that he would commence to induce her if there was not significant progress in her labour.
Although the first named defendant has no recollection of this encounter and indeed has no recollection of any of the events of that day until he was phoned at approximately 11.30 that evening by a midwife, he emphatically denied Ms. O’Mahoney’s version of this conversation and it was his evidence that when taking over the patient of another colleague he would be very conscious of the vulnerability of that patient and would be at pains to properly introduce himself and put the patient at ease and that he would never address a patient in a threatening or admonishing fashion as was alleged by Ms. O’Mahoney.
For the duration of the morning Ms. O’Mahoney and her husband spent time in the room during which she had contractions approximately every 20 minutes and also spent time walking up and down the corridor. As the morning progressed it became clear that her labour was not progressing with adequate speed and a decision was made to induce her labour by infusing her with a drug called Syntocinon. The first named defendant explained this decision on the basis that after the waters break there is a risk to the baby of ascending infection if the labour continues in excess of 24 hours and to avoid that risk he decided to commence induction. At 12.00 the plaintiff was commenced on this drug intravenously and thereafter her contractions came much quicker. She continued to ambulate between the room and the corridor but it was quite clear from the evidence that her pain and discomfort greatly increased with the increasing frequency of the contractions, to the extent that by 2.00 pm or thereabouts she could bear it no longer and requested an epidural. The epidural was put in place at 2.35 and at 2.59 an electrode was attached to the baby’s scalp to monitor its heartbeat from then on. The monitoring of the heartbeat was demonstrated on the CTG machine and could be seen in the form of a trace, which has been put in evidence.
As a result of the epidural the plaintiff was no longer able to use her lower limbs and hence was confined to her bed from then on. In addition the plaintiff would of course have had no sensation in the lower part of her body. During the afternoon Ms. O’Mahoney slept for some time as did her husband on the bean bag. Getting on into the evening after 6.00 her labour began to progress more rapidly, with her cervix dilating much faster. At 9.00 or thereabouts Ms. O’Mahoney had a telephone conversation with her brother and about an hour later another with her mother and it was clear from the evidence that at that stage she was in good form and no doubt full of anticipation. Her husband was in a similar state of mind though probably somewhat more nervous than Ms. O’Mahoney.
By 11.00 Ms. O’Mahoney’s cervix was fully dilated and she entered the second stage of labour namely the active stage. The midwives who were attending her at this stage asked her to push but because of the epidural she felt she was unable to do so and after some time devoted to these, either futile or ineffective efforts, she heard one of the midwives say something to the effect that they would have to get help. It is common case that the first named defendant was rung at home by a midwife at approximately 11.30 and advised that the delivery was not progressing satisfactorily and that Ms. O’Mahoney would need assistance to achieve delivery. The evidence of the first named defendant was that the midwife in this conversation cited dips on the CTG i.e. in the foetal heartbeat as a cause of concern in the context of the ineffectiveness of Ms. O’Mahoney’s efforts to push.
At this point it is to be noted that nothing in the care of the plaintiff or Ms. O’Mahoney up to this point gives rise to any complaint relative to the injury suffered by the plaintiff or the issue of negligence. As mentioned earlier Ms. O’Mahoney did complain about the manner of her initial encounter with the first named defendant but whilst that might be a matter which would give rise to a sense of grievance it does not appear to me to be directly relevant to the issues which must be resolved in this case.
The first named defendant arrived into the delivery room at 11.30 approximately and from that point in time until the delivery of the plaintiff which is recorded as occurring at 11.45 there is a very serious conflict between the evidence of those who participated in the process and who have any recollection of it. In this regard one of the midwives Ms. Geraldine Mulcahy was called to give evidence but she had no recollection of the events themselves and in giving her evidence was solely relying upon the documentary records.
The evidence of Ms. O’Mahoney as to what happened during this quarter hour or so may be summarised as follows.
She was lying on the bed in the dorsal position i.e. on her back. She thought her back was at an angle of 50 or 60 degrees but at any rate in a relatively upright position resting against the back of the bed which was angled outwards and she was propped up on pillows. Her knees were drawn upwards so that her feet rested on the surface of the bed. She had no control over her legs because of the epidural and it was necessary for one of the midwives to hold onto one knee and for her husband to hold onto the other knee. Apart from saying something to the effect “let’s get that baby out”, not specifically to Ms. O’Mahoney but to all in the room, there was no other conversation from the first defendant and no discussion with Ms. O’Mahoney of what was to be done. She did not notice what the first named defendant was doing away from the bed but when he approached the bed she was aware of the Venteuse machine. Her evidence was that the first named defendant carried out an episiotomy. She was aware of the machine being started and it was her evidence that the plaintiff was out within a matter of two minutes or maybe less from that point in time. She described the movement executed by the first named defendant to get the baby out as a sudden yanking, a yanking back procedure and she described the plaintiff as being “yanked out”. She said that the first named defendant commented, “what a well nourished baby” and she heard somebody say “I heard something cracking there” and “we will have it x-rayed.” She then said she heard the first named defendant say to one of the midwives “I should have taken you up on that bet about the baby being delivered before midnight.” She was adamant that from the time the Venteuse procedure commenced to the delivery of the plaintiff was only two minutes, a very short time. She was adamant in her evidence that throughout this procedure her position on the bed was not altered and no-one applied any pressure to her supra pubic area.
The evidence of Mr. Colman O’Sullivan concerning this 15 minute period in summary was as follows.
He recalled the first named defendant washing his hands after he entered the room i.e scrubbing up and that he didn’t address Mr. O’Sullivan at all. Mr. O’Sullivan was sitting by the side of the bed on his wife’s left hand side. He was holding her hand and trying to reassure her although he felt he was more nervous than her. He said there were two nurses with the first named defendant, one was opposite him by the side of the bed and there was a nurse in the background. He described his wife as being propped up with pillows on the back rest of the bed. He said the first named defendant brought a device which he now knows to be the Venteuse towards the bed and that he made an incision or cut in his wife low down and he then applied the vacuum. He said he was asked by the first named defendant to hold her knee and he did that with his left hand; and that her legs were falling all over the place. He said her knees were upright and her legs were on the bed and that her feet were on the bed. He said that he was not applying any pressure he was merely holding her knee. He remembered hearing the venteuse; he heard a suction, a kind of sucking sound as it came off and the whole procedure was very quick. He said his wife’s position on the bed was not altered during the entire procedure and there was no contact between anybody present and his wife’s abdomen or supra pubic area. He said after the removal of the vacuum the baby was out within about an minute or a minute and a half, maximum, and he heard a crack, a distinctive crack and that the first named defendant worked very quickly. He said he had seen the vacuum being placed on a metal kind of table. He could hear it and after that he said that the baby was pulled out in less than a minute. He said the crack he heard was as you would crack a chicken bone or a twig; that it was like a bone and was very distinctive. He said he mentioned it straight away to the first named defendant and he responded by saying “we’ll have it x-rayed.” He described what the first named defendant did as working with his hands, as very quick, very physical and the use of force.
The first named defendant’s evidence in relation to this period is in summary.
He said on coming into the room and looking at the CTG, he saw at a glance what concerned the midwives. He then walked around the bottom of the bed up to where the wash-hand basin is. He washed his hands and put on gloves and then went over to the bed. Ms. O’Mahoney was in a semi-sitting position with a midwife supporting her right knee and the other midwife supporting the left leg with the knee bent up. The first named defendant moved in and asked the nurse holding the right leg to let him in and he supported Ms. O’Mahoney’s right foot on his right iliac crest. He then did a vaginal examination to see where the head was and to make sure that the cervix was fully dilated. This examination was done by fingers. He then inserted the vacuum cup. As a result of the vaginal examination and what he had been told he concluded that the head was low enough for a safe or easy delivery, and he made a decision that he should move to assist the delivery, by means of a vacuum assisted delivery. His reasons for opting for an assisted delivery were that there were dips in the foetal heart rate; Ms. O’Mahoney had been pushing for a 20 or 25 or 30 mins and had not made any progress and had become exhausted, and thirdly her temperature was increasing. He recalled putting on the vacuum onto the baby’s head at which stage he said to Ms. O’Mahoney “your baby is getting tired and we are going to give you a little bit of a hand”. Having put on the vacuum he nodded to the midwife to press the switch which operates the vacuum. He then waited for the next contraction as felt by the midwife and when that commenced he asked Ms. O’Mahoney to push and at the same time he applied traction pulling in a downward manner. He said the duration of the contraction lasted for three pushes and he pulled on those three pushes and succeeded in delivering the plaintiff’s head. As the baby’s head was crowning he then did the episiotomy. During all of the foregoing procedure Ms. O’Mahoney was reclining on the bed at an angle of about 30 degrees with both knees flexed with the right foot on the first named defendant’s side resting on his iliac crest and with the left foot on the midwives side or her iliac crest. The bed on which Ms. O’Mahoney was lying was a standard electronic labour ward delivery bed. The full bed was in use, i.e. the bottom third had not been removed. When the head was delivered the vacuum would have come off and the midwife would automatically switch off the machine. The vacuum dies and the cup just falls off the head. The vacuum was then put away on the trolley. He waited for the next contraction as felt by the midwife and when that happened Ms. O’Mahoney was asked to push but there was no movement whatsoever of the anterior shoulder. He said he remembered that still, with fear. There was no movement of the shoulder. Normally the anterior shoulder just pops out. This is something you normally see and feel and there would normally be no resistance anymore and the baby is flowing. You know that feel in your hands. In this case he felt no movement whatsoever and this is a horrible feeling. There is no give whatsoever and he agreed with the description of it as being like a brick wall or being stuck firm. It is a horrific feeling and you feel the cold going down your back with it. This indicates that you are into a scenario of shoulder dystocia, with the various possibilities that may ensue ranging from the delivery of a healthy baby of a healthy mother to possible brain damage for the baby or the death of the baby. He said he made a mental diagnosis of shoulder dystocia and quietly intimated this to the midwife assisting opposite him. He said he quietly advised the midwife that they would move Ms. O’Mahoney into the left lateral position. He put his hands under her bottom pulled it towards her and tilted her over towards the left. He then said to the midwife “supra pubic pressure”. This was carried out in a quite but rapid manner so as not to frighten everybody in the labour-ward. He said they then hyper flexed the knees which were already fairly flexed, the nurse pressed supra pubicly and the baby came out with, what the first named defendant thought was a minimum of traction. When the midwife applied supra pubic pressure he said he could hear a crack which he reckoned was the clavicle fracture. As he heard the crack the anterior shoulder came out and it was just a free flowing normal delivery at that stage. He then applied the umbilical clip to the chord and cut the umbilical chord, lifted the baby up and handed her over to Ms. O’Mahoney. He emphatically denied ever saying anything about taking a bet on the baby being out before midnight. He said that he moved Ms. O’Mahoney onto her left side because that was a movement he had always reckoned as being the McRoberts manoeuvre which is a manoeuvre to straighten up the pelvis in relation to the spine and to give you more room; to take the normal lordosis out of the spine and to take away the sacral prommentary. By turning the patient onto the left lateral position you can achieve the same as in its dropped position, when you get the two knees up and you can also avoid venacaval compression or a drop in blood pressure if you have the mother in the left lateral as opposed to when she is lying on her back. The physics of the movement of the legs in relation to the effective opening up of the pelvis is the same, irrespective of whether you do it with the mother on her back or on her side. He said the manoeuvrable McRoberts is the hyper flexion of the thighs and the opening up of the pelvis by doing so. He said the manoeuvre thus performed on the day, in fact worked. He said that the crack which he heard and the supra pubic pressure and the delivery all happened together, there wasn’t a split between either of them. The first named defendant emphatically denied using a “yank” that he would not dare treat a delicate child like that. He said that he had got over the shoulder dystosia by the first line of treatment i.e. the supra pubic pressure and McRoberts in the left lateral and the baby came out and gave a hearty cry and picked up well. He said it never for a moment dawned on him that he had used sufficient traction to cause Erbs Palsy and when he heard subsequently that the plaintiff had Erbs Palsy he was very dismayed by this. After the delivery of the plaintiff he attended to the third stage of labour i.e. the delivery of the placenta and wrote his note of the delivery. For this purpose he obtained the time of delivery from the midwife. This time was taken from the clock on the wall in the delivery room. He wrote his note in the delivery room at a little desk in the corner where the notes are all kept. There is also a clock built into the CTG machine, a Hewlett Packard clock but this was not synchronised with the clock on the wall. The clock on his machine is not easily visible. It can be brought up by means of pressing a button and it comes up flashing. When he had finished with Ms. O’Mahoney and the plaintiff, the first named defendant went home as he had no more deliveries that night. He calculated the time from the delivering of the baby’s head to the full delivery to be about seven minutes. He said that the traction he applied was the normal traction that would be applied to a normal delivery when the shoulder is coming anyhow and that he said the plaintiff came out quite easily with that.
As mentioned earlier and it is clear from the foregoing there is a very substantial conflict between the evidence of the first named defendant and of the parents of the plaintiff as to what happened in the course of the delivery of the plaintiff.
Having carefully considered all of the evidence I have come to the conclusion that the evidence of the parents is to be preferred to that of the first named defendant for the following reasons.
As of 1998 the evidence established that the first named defendant had either no recollection of the process of the delivery or could only recollect it in very broad terms. As a result of discussions with the legal advisors and others his evidence was that he recovered a detailed memory so as to enable him to give the very detailed evidence concerning the entire process of delivery.
I am satisfied that in the detailed account given by the first named defendant in his evidence of the delivery there was a large element of reconstruction of events based upon his professional knowledge and expertise. I don’t for a moment suggest that the first named defendant sought to deliberately mislead the court, on the contrary I am quite satisfied that he made a conscientious effort to give the court as full and detailed account of what happened during the delivery as he could. However I am left with the unshakeable impression that much of that detail resulted from a reconstruction of events, in a genuine effort by the first named defendant to recover what he perceived to be an actual memory of the events. In that circumstance I find myself unable to rely upon his version of events.
For the parents of the plaintiff the birth of their first child was an event which was likely to be etched clearly in both their memories. I am quite satisfied that neither of them was deliberately telling untruths or, perhaps in the interests of their daughter embellishing or exaggerating their evidence. Whilst each of them described the actual delivery in different terms there was a substantial convergence between their accounts. On one very important particular they were in exact agreement, namely that the position of the mother was not changed to the left lateral position and that supra pubic pressure was not applied by anyone. Insofar as the manner of the delivery and the speed of the delivery was concerned while as I said they used different terms to describe it, the substance of their descriptions appears to me to be the same. Ms. O’Mahoney described it as a yank or a pull and likened it to the tug on the starting coil of a lawnmower. Her husband described it as very physical with the use of force. Both of them were in agreement that it was extremely rapid, Ms. O’Mahoney saying that it was not more than two minutes from the start of the Venteuse procedure to complete delivery and her husband saying, less than a minute and a half from the delivery of the head.
In my view having regard to the nature of the event, they could not be mistaken about the change of position from the dorsal to the left lateral. Either they are deliberately lying about that, or else in my view, it is true. As said I do not think they were telling deliberate untruths. That being so I am satisfied that their evidence in that regard is correct and that the position of Ms. O’Mahoney was not changed from the dorsal to the left lateral during this procedure. I am also satisfied that they are right, that the supra pubic pressure was not applied.
As to the speed of the delivery there is corroboration of their evidence in the time recorded for the delivery and also in the times recorded on the CTG trace.
The note made by the first named defendant after the delivery recorded the time of delivery as 11.45 pm. This time was apparently taken from the wall clock. The evidence established that this wall clock was not synchronised with the clock in the CTG machine and there was a suggestion that there was a substantial discrepancy between these two clocks which would have the effect of extending the time available for the delivery beyond the apparent three minutes from the taking off of the electrode from the baby’s scalp which is recorded in the trace in the CTG as 11.42 approximately. However it was the first named defendant that gave evidence that when the electrode was taken off, the foetal heartbeat would have continued to be monitored using an ultra scan device attached to the mother’s abdomen and that this accounted for the continuing faint trace on the CTG trace up to and just beyond 11.44. Dr. Turner gave evidence that as soon as the plaintiff was delivered the CTG machine would be turned off terminating the trace. The trace would be torn from the machine at or about that point and placed with the plaintiffs records. An examination of the trace demonstrates that it was torn off just beyond the 11.46 line. As said earlier the last discernable trace that appears to be foetal heartbeat is just at and just beyond 11.44. Dr. Turner an expert called for the defendants explained in his evidence and I accept that the explanation, that the ultra sound does not record and trace on the CTG machine the foetal heartbeat as clearly as the electrode for the reason that it is attached to the woman’s abdomen somewhat loosely and in the activity of delivering and having regard to the changing position of mother and baby does not produce as clear a trace as the electrode would. In my view that is the probable explanation of the faintness of the trace from 11.42 up to 11.44. Dr. Turner also gave evidence which I accept that once the baby is delivered that terminates the recording of the foetal heartbeat by the ultra sound. It is certain that the trace in the CTG was torn off just beyond 11.46 line and I infer from that, as a matter of probability, the baby had been born shortly before that.
All of this leads me to the conclusion that as a matter of probability there was no discrepancy or difference of any significance between the time recorded on the CTG clock and the time recorded on the wall clock the latter being entered as the time of delivery in the record.
As said earlier, in my view this evidence corroborates the evidence of the parents as to their impression that the delivery took place very rapidly, in fact in all probability in the space of about three and a half to four minutes at most from the removal of the electrode from the baby’s scalp to enable the Venteuse cup to be applied.
I am satisfied therefore that I should accept the evidence of the parents of the plaintiff as to being a reasonably reliable impression of the speed at which the delivery took place.
There are two other items of evidence which in my view tend to corroborate or support the evidence given by the parents of the plaintiff.
The first of these is the note made by the first named defendant shortly after the birth of the plaintiff and it is in the following terms.
20th January, 1996, 23.45 vacuum assisted delivery because failure to progress in second stage and CTG dips difficulty delivering right shoulder?. Fracture clavicle.
This note was made shortly after the deliver and I accept its contents as a reflection of the state of mind of the first named defendant as to what occurred during the delivery. There are a number of features of this note which appeared to me to be remarkable. The first of these is the fact that the express diagnosis of shoulder dystocia is not so described. The evidence of all of the medical experts in this case and of the first named defendant himself described the condition of shoulder dystocia as a very definite state of affairs and a very particular and explicit diagnosis which was described by all of them, and also universally in the literature which was put in evidence in the terms “shoulder dystocia”, from what I have heard of this condition from all of these doctors from having considered this literature it appears to me to be remarkable that the first named defendant would have noted it in the record as being merely “difficulty delivering right shoulder”. This note, in this regard, tends to persuade me that whatever difficulty the first named defendant perceived himself as encountering in relation to the right shoulder during this delivery, that he did not at that time form the view that there was a shoulder dystocia nor did he make that diagnosis at that time.
That brings me to the next feature of the note which I consider to be remarkable and that is the fact that no mention at all is made in the note of the procedure used to overcome shoulder dystocia i.e. the McRoberts movement in the left lateral position together with supra pubic pressure. One would have thought it was of some importance to record what manoeuvre was used to overcome a problem such as this because that information might be of considerable relevance to the management of a subsequent delivery so that an obstetrician dealing with the later delivery would know what had either succeeded or failed.
The first named defendants evidence was that it was not the practise to note the particular manoeuvre used and he went on to say that he had been trained to make short notes rather than long notes on the basis that shorter ones are more likely to be read and that in a hospital which wasn’t a teaching historical shorter notes of the kind made here were the norm. He acknowledged that in a teaching hospital there was tendency to write essays.
In my view the universal desirability of brevity simply fails to explain an omission such as this from this note. A single short additional sentence was all that was required, to say that shoulder dystocia had been encountered and was overcome by the McRoberts manoeuvre in the left lateral position with supra pubic pressure.
The contents of this note tends to persuade me that the parents of the plaintiff are right in their recollection that Ms. O’Mahoney was not changed into the left lateral position nor was supra pubic pressure applied.
The final piece of evidence I wish to draw attention to in this regard is the injury suffered by the plaintiff. The injury to the brachial plexus was, I am satisfied caused by traction on the head of the plaintiff, applied during her delivery. The first named defendant’s evidence was, that he only applied normal gentle traction and that the baby came easily. I am satisfied that the injuries suffered by the plaintiff was caused by a force greatly in excess of normal gentle traction and in my view this injury is inconsistent with the evidence of the first named defendant as to the traction applied by him. No explanation other than an excess of traction was advanced to explain this injury and I am satisfied, on the balance of probabilities, that this injury together with the fracture clavicle was caused by the application of excessive traction to the head of the plaintiff during delivery. That state of affairs is consistent with the descriptions given by the parents of the actions of the first named defendant in delivering the plaintiff.
I have come to the conclusion, therefore, that the plaintiff was delivered in the space of about four minutes or less from the removal of the electrode from her scalp, in all probability, on the first contraction after the delivery of the head in circumstances where in my view the first named defendant had not formed the view that there was as full shoulder dystocia and where he moved to overcome such difficulty as he perceived to be there by the application of excessive traction, without resorting to any variant of the McRoberts manoeuvre or the application of supra pubic pressure. The excellent condition of the baby as reflected in the Apgar score of 9 at 1 minute tends to reinforce that conclusion by indicating that the plaintiff was not deprived of oxygen for any significant period of time and certainly not for the span of time some seven minutes that would have been required to have put Ms. O’Mahoney in the left lateral position and reopen the McRoberts manoeuvre with delivery on a subsequent contraction.
Having reached this conclusion, it necessarily follows that the standard of care given by the first named defendant in the delivery of the plaintiff was lower than the standard of care to be expected from a person of his rank in his profession and hence it was negligent.
Although that conclusion is sufficient to dispose of the issue of liability in the case, in deference to the expert evidence given by the very eminent experts called on both sides namely Mr. Clemens and Mr. Johnson for the plaintiff and Dr. Turner and the defendants, I feel I should express an opinion on the main point of difference between the plaintiff’s expert and the defendants expert.
This related to the appropriate procedure or manoeuvre to be followed or applied where a shoulder dystocia is diagnosed. Mr. Clemens and Mr. Johnson were adamant that since the mid 1990’s or 1994 perhaps at the latest, the only manoeuvre or position to be used consistent with good practice was the McRoberts manoeuvre in the dorsal position. Indeed Mr. Johnson forcibly expressed this opinion to the extent of saying that a failure to use the McRoberts manoeuvre in the dorsal position post 1994 or thereabouts would be negligence on the part of an obstetrician.
The defendant’s expert Dr. Turner vehemently disagreed with this view asserting that the essence of McRoberts was not a position but a manoeuvre, the essential feature of which manoeuvre was the hyper flexion of the thighs so as to tilt the pelvis upwards and straighten out the birth canal and remove the promontory of the sacrum. It was Dr. Turner’s opinion that this manoeuvre could be achieved equally as well either in the dorsal position or in the left lateral position and either position was acceptable and it was a matter for clinician preference, as to which would be used. He also vehemently contended that the literature available internationally on the topic did not prescribe or require the use of the dorsal position for the McRoberts manoeuvre and he stressed that cultural differences or preferences could influence the choice of position opted in different parties of the world.
There is no doubt from the evidence of all three experts that the objective to be achieved by the use of this manoeuvre in either position was the same, namely to straighten up the birth canal. This necessarily involves in addition to the upward titling to the pelvis achieved by the hyper flexion of the thighs, also the changing of the normal lordosis of the spine so that the normal inward S bend is moved in the opposite direction outwards, i.e. moving the curvature of the spine in the opposite direction which has the effect of moving the sacrum backwards.
I fail to see why the objectives of this manoeuvre cannot be achieved in the left lateral position. Indeed I would be inclined to the view that by keeping the back flat on a flat surface would tend to preserve the normal lordosis of the spine particularly if the shoulders are flat on that surface, whereas in the left lateral position, I would be inclined to the view that the upper part of the back could be brought forward more easily, thereby achieving an outward curvature on the lower part of the spine.
The literature on the subject which was put in evidence by both sides does not appear to me to establish in the unequivocal way asserted by Mr. Clemens and Mr. Johnson that the dorsal position was the prescribed position for the McRoberts manoeuvre, excluding any other position. Indeed far from this, it would seem to me from a reading of the literature, a significant portion of it contemplates the use of the left lateral position at the very least as an initial position for the manoeuvre.
I would be of the opinion therefore that the use of the left lateral position for the purposes of the McRoberts manoeuvre is an acceptable professional practice for an obstetrician when confronted with shoulder dystocia and I cannot avoid the view that the opinion of Mr. Johnson in particular that the use of the left lateral position post 1994 was negligent for an obstetrician, is a somewhat extravagant assertion.
Damages
The plaintiff suffered a fracture of the right clavicle and an Erbs palsy on the right side. The fractured clavicle was of little significance though I am sure it must have caused considerable pain to the plaintiff in the first few days of her life. The Erbs palsy is a very serious injury. This was not, understandably, detected very early on. However as the months went by it became clear that there was a gross dysfunction of the plaintiff’s right arm and shoulder. Erbs palsy was diagnosed in due course and the treatment prescribed was physiotherapy. I am quite satisfied from the evidence that from early in her life, the plaintiff had a great deal of physiotherapy in the Lavena centre in Cork. Unfortunately however this brought about very little in the way of improvement and by chance when the plaintiff was approximately a year and a half old Ms. O’Mahoney learnt from an article in a French magazine that there was a surgical procedure available to help correct the problem. She got in touch with Mr. Ralph Birch an expert with a particular interest in this problem and in due course late in 1997 the plaintiff was taken to London for surgery. This surgery involved correcting the dislocation of her shoulder by relocating the top of the humerus into its socket. After the surgery the plaintiff was placed in a body cast and I have no difficult in accepting that that was a source of grave discomfort and distress to the plaintiff and no doubt also her parents. Whilst that procedure did produce some improvement it became apparent that a further operation would be needed. This was put off until the year 2000 when the plaintiff was approximately four and a half years old. Again she was taken to London and a procedure was carried out. This involved fracturing the humerus on the right side high up and turning the shaft of the bone around and repining it together again so as to achieve a better range of movement in the right limb. At the request of the parents a plaster cast similar to the previous one was not applied and that considerably eased the post operative care of the plaintiff. After this procedure it would appear to me that the plaintiff began to progress much more rapidly and achieved considerable improvement which has confirmed to date.
I had the benefit of seeing the plaintiff and having demonstrated by her precisely what her current situation is and what her current difficulties are. I have also heard the evidence of Professor Carlstead and also of Ms. Barry occupational therapists and of Mrs. Feely another occupational therapist, and with the benefit of all of that evidence it is apparent to me that notwithstanding the improvements to date, the plaintiff is left with a very significant deformity of her right shoulder and arm and right scapula and has still significant disabilities and these disabilities will continue for the rest of her life with serious consequences for her.
As the matter stands the plaintiff is unable to get her right hand behind her head actively or behind her lower back. She also has difficultly in reaching outwards and upwards. Her right upper limb is weaker and cannot support her own weight as would a normal limb. The dexterity of her right hand is reduced as a consequence of which she does not have normal writing capacity or speed in that hand. She is right hand dominant. The restriction of movement of her right arm does cause her difficult in dressing or in managing her hair and in the future it is probable that she would have difficulty in these activities and in particular in putting on a necklace or earrings or in attaching a bra strap.
When she brings her right arm around in front of her body this tends to cause what is described as winging of her scapula. This is readily apparent with the scapula emerging into significant prominence. The appearance of her right shoulder is not the same as the left. It does not have the same square appearance but is rounded downwards. In addition she has quite a significant scar running along the front of her right shoulder.
None of these conditions are likely to significantly improve in the future. The plaintiff is now somewhat disabled in leisure and sporting activities and cannot manage the normal range of these activities. In that regard she is separated from her peers and that will continue.
Luckily the plaintiff is a very bright child and so far is doing very well academically and is top of her class. I take it as a probability that with the support of her parents and good schooling she will continue to enjoy academic success and it is a probability that she will attain the appropriate standard for a third level education and her career will progress on that basis. It is impossible at this stage to say what choice of career she would make in that context, but what is significant from the damages point of view is that there are a number of careers that she would be excluded from because of her disability. These include membership of An Garda Siochána or of the defence forces, an airline pilot, those branches of the medical or paramedical professions which require some degree of balanced physical strength and manual dexterity, the veterinary profession, and architecture because she would not be able to climb ladders or scaffolding.
At this stage it cannot be said as a matter of probability that the plaintiff will suffer any loss of earning capacity as a result of her disability but what can be said as a matter of certainty is that the range of choice of career available to her will be significantly reduced and that is a fact which must redound in general damages.
It must also be anticipated that when she reaches her teenage years there is a likelihood of considerable stress because of the disability and also the appearance of her shoulder and scapula. I have no doubt but that with the support of her parents she will overcome whatever difficulties which may arise in this area but nevertheless it is to be anticipated that these difficulties will arise and she must be compensated for them.
Approaching the assessment of general damages on the traditional basis of assessing damages to date and for the future I would award the plaintiff the sum of €75,000 in respect of general damages to date. In arriving at that figure I bear in mind that to a very large extent the plaintiffs childhood to date has been dominated by this injury and she has suffered a great deal of pain and distress from all of the physiotherapy and operative procedures required to deal with it.
For general damages for the future I would award the plaintiff the sum of €175,000 making a total of €250,000. In addition there is an agreed sum for special damages in the amount of €6,766.02.
A claim was also made in respect of the cost incurred for the surgical treatment of the plaintiff in respect of the two procedures carried out in London. Evidence was given in regard by an official of the Southern Health Board and it was my understanding of the evidence of this witness that once these procedures were not available in Ireland that there was a right or entitlement to have them provided and paid for by the health board and hence there was no obligation to reimburse the health board for the cost of these procedures. On that basis I have reached the conclusion that this aspect of the claim should be disallowed.
In conclusion therefore there will be judgment for the plaintiff for the sum of €256,766.02.
McCourt v. Dan Dooley Ltd.
[2001] IEHC 123 (25th June, 2001)
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 25th day of June, 2001.
1. The Plaintiff in this case, Peter McCourt, is a 50 year old married man who resides with his wife and family at Omeath in the County Louth. He is a haulier by occupation.
2. Peter McCourt comes to Court seeking damages by way of compensation for injuries which he suffered in a traffic accident in which he was involved, through no fault of his own, on the 17th day of March, 1998 at Tuam in the County Galway. On that day, while driving his car to a funeral (wearing his seat belt), Mr. McCourt was rounding a left hand bend when he was confronted by the Defendant’s car which was entirely on its incorrect side of the road; so much so, that Mr. McCourt had no opportunity to take evasive action and a violent collision between the two vehicles ensued. Not surprisingly, the Defendant has admitted liability for the occurrence and Mr. McCourt’s claim herein proceeded as an assessment of damages only. Apparently, the explanation for the Defendant’s bad driving is that he is a U.S. national.
3. As a result of that collision, Mr. McCourt suffered multiple injuries to his head, neck, shoulders, chest, back and both knees. Nevertheless, although he said that, as a result of the incident, he felt rotten and was sore from head to toe. He attended the funeral to which he had been heading at the time of the accident. In this regard, it is relevant to note that, in 1991, the Plaintiff had suffered a fall as a result of which he sustained a crushing injury to his right heel and, as a result of that injury, he had to submit to surgery in the month of September 1995 involving the removal of fragments of bone from his right heel. He, himself, gave evidence that, following that operation, although he experienced some limitation of movement of his right foot, he felt no pain and did not experience any functional disability. However, his surgeon, Mr. Kessopersada, told me that Mr. McCourt had told him that that operation had relieved him of two thirds of the pain which he had been experiencing before it and I think that is probably more accurate. That as it maybe, however, Mr. McCourt told me and I accept that, on the night of his accident, he slept poorly and the next day he experienced widespread pain; so much so, that it was necessary for him to consult his General Practitioner, Dr. Bart Cullen, who prescribed painkilling medication and referred Mr. McCourt to the Louth County Hospital for x-ray examination. Fortunately, no bony injury was manifest on the x-rays and Mr. McCourt was not detained in hospital. However, during the following days, he was very sore, was barely able to walk and totally incapacitated from work. He continued to attend Dr. Cullen on a daily basis for a considerable amount of time and his complaints included severe pain in his chest which, apparently, was attributable to a seat belt injury. In that regard, Dr. Cullen noted that Mr. McCourt manifested muscle spasm and stiffness in his neck and back, spasm in his hands and stiffness and crepitus in both ankles. Moreover, he noted that Mr. McCourt complained of cramps in both legs. I am satisfied that, during that period, the Plaintiff was very incapacitated and suffered a lot of pain. In addition to painkilling medication, Dr. Cullen prescribed physiotherapy which the Plaintiff said and I accept was, in itself, a painful experience; so much so, that, after it, Dr. Cullen found it necessary to give Mr. McCourt injections, which were also a very painful experience, following which the Plaintiff had to go to bed. However, Mr. McCourt conceded that he did get some relief from the physiotherapy, which, initially, involved 9 or 10 sessions. Nevertheless, that relief was only marginal and the Plaintiff continued to experience considerable pain which was widespread and disabling and, because it persisted, Dr. Cullen thought it prudent to refer Mr. McCourt for assessment by an Orthopaedic Surgeon, Mr. Kessopersada, who first saw him on the 9th of July, 1998. Mr. Kessopersada described the Plaintiff’s injuries as follows namely; “soft tissue injuries involving a very severe hyperflection/hyperextension injury to his head, neck, shoulder muscles and low back area”. In addition, he had suffered an impact injury to his right ankle. Mr. Kessopersada also carried out a E.M.G. test which established that, as a result of his accident, the Plaintiff had suffered cervical nerve root irritation and that the trauma to his right foot and ankle had aggravated pre-existing degenerative changes in the sub-talar joint which had resulted from the accident which he suffered in 1991. Moreover, Mr. Kessopersada concluded that the accident had also precipitated premature degenerative changes in the talo-navicular joint of the Plaintiff’s right ankle which were unrelated to the 1991 accident and totally attributable to the accident under review. In that regard Mr. Joseph McGrath FRCSI, an Orthopaedic Surgeon, who examined the Plaintiff on behalf of the defence, took issue with Mr. Kessopersada’s views in that behalf; maintaining that the Plaintiff had suffered no new injury to the talo-navicular joint as a result of the incident which gave rise to this claim. In this regard, given that Mr. Kessopersada’s views were based on a scan of the Plaintiff’s right ankle taken on the 13th of November, 2000 which Mr. McGrath neither saw nor sought a view of, I prefer Mr. Kessopersada’s views in that behalf. Moreover, I am influenced in that conclusion by the fact that Mr. Kessopersada has had the opportunity of examining the Plaintiff’s ankle on 22 occasions over the last 3 years whereas Mr. McGrath only saw him on 2 occasions. In the light of the results of his first examination of the Plaintiff which, in his view, demonstrated that he was suffering from painful restriction of the movement of his neck, shoulders and back which were disabling, Mr. Kessopersada embarked upon a regime of treatment which included painkilling and anti inflammatory medication, hydro therapy, heat treatment and neck exercises. He also prescribed a gel which Mrs. McCourt rubbed on her husband’s neck, back and shoulders. Over the next few years, the Plaintiff was subjected to three/four injections which were very painful but only afforded short term relief.
4. Since he first attended Mr. Kessopersada, Peter McCourt has attended him 22 times but, while I am not convinced that that number of attendances was actually necessary, it would appear that Mr. Kessopersada’s treatment has proved beneficial, in that, the Plaintiff accepts and Mr. Kessopersada agrees that there has been significant improvement in the condition of his neck, shoulders and back, although Mr. McCourt complains that he still gets some pain which is aggravated by turning his neck and shoulders and that he gets pain in his back if he has to sit or stand for long periods. He also complains of pain in his right foot/ankle, that he walks with a limp and that his foot swells. Furthermore, he says that he has to take painkillers on a daily basis. As I interpret Mr. Kessopersada’s evidence, all of these complaints are real and justified although he (Mr. Kessopersada) expects that, within the next three to five years there will be further improvement in the condition of the Plaintiff’s neck, shoulders and back which will become less symptomatic over that period of time. However, Mr. Kessopersada does not envisage that Mr. McCourt will ever be totally symptom free in any of those areas. On the other hand, he believes that the condition of the Plaintiff’s right ankle will worsen with the passage of time; that it will always be painful, that Mr. McCourt will always walk with a limp and that his awkward gait will cause additional back problems. Indeed, Mr. Kessopersada envisages that Mr. McCourt may have to undergo further surgery in his right ankle involving the insertion of an implant, or an arthrodesis, which will involve 7 to 10 days in hospital, 12 weeks in a plaster of paris cast, a long period on crutches and prolonged physiotherapy.
5. In addition to disagreeing with Mr. Kessopersada’s views on the implications of the injury which the Plaintiff suffered to his right ankle, Mr. McGrath also took issue with him with regard to the ongoing problems of which the Plaintiff complains in his neck and back. In that regard, it is Mr. McGrath’s view, following two examinations of the Plaintiff and in the light of his record of what the Plaintiff said about his injuries that he has made a full recovery from the injuries which he suffered to his neck and back and that he will have no further trouble in those areas. Apart from the fact that I was persuaded by the Plaintiff’s evidence that he still has ongoing problems with his neck and back and that I prefer the views of the treating surgeon to those of Mr. McGrath, I am not convinced that Mr. McGrath’s record of what the Plaintiff is supposed to have said to him is accurate. For example, Mr. McGrath’s records with regard to Mr. McCourt’s previous injury to his right ankle is patently not correct and neither is it true, as Mr. McGrath has recorded, that the Plaintiff had not resumed driving in January of this year. Moreover, I doubt that the Plaintiff told Mr. McGrath that because I am satisfied that Mr. McCourt is too intelligent to tell such a blatant lie. On the other hand, I think that the Plaintiff was somewhat evasive with regard to his evidence about the amount of driving which he has done since his accident. I believe that he has done a little more than he is prepared to admit to. Nevertheless, I think that he suffered significant injuries as a result of his accident, that he has had to put up with a lot of pain, disability and disagreeable treatment for the last three years and that at, what I believe to be a relatively young age of 50 years, he has to look forward to chronic pain in the future and the possibility of further surgery. In those circumstances, in respect of the last three years, I will award the Plaintiff a sum of £15,000 in respect of general damages and, for the future, allowing that he is always going to experience a certain amount of pain and disability and there is the melancholy prospect of further surgery and hospitalisation, I will allow a sum of £50,000. In those circumstances, given that special damages are agreed in the sum of £2,225, I will award the Plaintiff £67,225 and his costs.
O’Brien v Derwin
[2009] IEHC 2, Charleton J
JUDGMENT of Mr. Justice Charleton delivered on the 14th day of January, 2009
1. The plaintiff John O’Brien is a carpenter. On the 21st October, 1998, he drove in his van from his home, midway between Athlone and Moate, to Athlone. There, he picked up his son Dominic from his work at the MSL factory and drove back on the N6 roadway in the direction of Moate. The evening was damp, though it was not pouring rain. Nothing is to be inferred in this case from the timings, but it is as well to record that since his son left the factory after a shift that ended at 8.00pm, that they were probably in the vicinity of the landfill site operated by Westmeath County Council beside the N6 somewhat around 8.15pm. The evening was then particularly dark. John O’Brien had no memory of the accident that then happened. His son Dominic, however, described it. He remembers a very dark night and that both he and his father were wearing seatbelts. As this is a good straight road, now less used because of the opening of the M6 motorway, they were travelling quite fast, though not excessively. They were about 7 kilometres from Athlone. Suddenly, he saw horses pass by on his father’s side of the road. He said “horses”. Before there was any time to react there was a bang. The windscreen came in, a huge impact. There was an awful smell. There was another impact and their vehicle halted by colliding with a concrete fence post. Both he and his father were covered in blood. He tried to take his father’s hand, but it came away. As it turned out, this was a lump of horse flesh. There was an injured horse beside the road and a dead one in the middle of it. The plaintiff’s son called an ambulance for his father. He was brought to Portiuncula hospital. He was seriously injured having suffered brain damage in the collision.
2. The first named defendant is the owner of lands adjoining the N6 which are situated a little under 1.5 kilometres from the scene of the accident. The second named defendant, now deceased, is his father. At all material times they were both involved in horse buying and selling. About 20 to 40 horses were kept by them on the land of the first named defendant beside the N6, and in other places other members of the family had further land and kept further horses. The second named defendant also owned land in nearby places, where horses were kept. He is now dead and is represented in this action, pursuant to a court order, by a solicitor. The second named defendant played no part in defending these proceedings. Among the land that he owned or used was a property within about two kilometres of the accident site on the N6 off that roadway and down a side road in an area called Glen Wood.
Issue
3. Both defendants deny that they had anything to do with the collision between the plaintiff and the horses on the N6 roadway. The issue in this case is whether the plaintiff has proved as a probability that the horses were owned and controlled by one, or other, or both of them and that the manner of the keeping of the horses by the defendants was negligent so that they escaped onto the highway, thereby causing the accident.
4. This case is to be decided on the balance of probabilities. Various cases have been cited by counsel. From these, I am satisfied that there are only two standards of proof that are applicable in judicial determinations. The beyond reasonable doubt standard is that which the prosecution is required to meet in criminal cases. The probability standard is that which applies in civil cases. I note, as well, from the judgments that have been cited, that is important for this Court not to glibly reach a conclusion that may involve a determination of serious wrongdoing against a defendant. To this end, during the hearing of this case, I visited and walked all of the locations that are relevant to this judgment.
5. In Miller v. Minister of Pensions [1947] 2 All E.R. 372, Denning J. said this about the standard of proof in civil cases:-
“…[T]he degree of cogency…required to discharge a burden in a civil case…is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: ‘we think it is more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.”
6. Where the circumstances of the case are such that the available evidence is so scanty as to render it impossible to reach a definite conclusion one way or the other, the party to suffer from this state of affairs must be the one on whom the general burden of proof lies, namely the plaintiff; Wakelin v. London and South Western Railway (1886) 12 App. CAS. 41 and see Jones v. Great Western Railway (1930) 144 L.T. 194.
7. Section 2 of the Animals Act 1985, reversed the rule in Searle v. Wallbank [1947] A.C. 341. This gave immunity from negligence principles where damage is caused by animals that strayed onto the highway. The 1985 Act provides at s. 2(1):-
“So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty with which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on the public road is hereby abolished.”
8. An exception arises where a roadway runs through an area where fencing is not customary, as in commonage. It does not apply here. In O’Shea v. Anhold and Horse Holiday Farm Limited (Unreported, Supreme Court, 23rd October, 1996) it was held to be self evident that a horse will not normally escape from its pasture and onto the public highway if the gates are closed and the fencing is maintained in an adequate condition. In O’Reilly v. Lavelle [1990] 2 I.R. 372, Johnson J. held that where cattle trespass on the roadway a plaintiff is entitled to rely on the doctrine of res ipsa loquitur, meaning that the facts themselves imply negligence, stating:-
“Cattle properly managed should not wander on the road and therefore the burden of proof in this case shifts to the defendant to show that he took reasonable care of his animals. I believe that there is no matter more appropriate for the application of the doctrine of res ipsa loquitur than cattle wandering on the highway.”
9. I take judicial notice of the fact that cattle are required by law to wear ear tags and that the identification of their ownership is thereby rendered easy. Horses are not so easily identifiable. They are individuals and unlike most cattle are usually given names. Some of them have a microchip inserted in their flank which gives an identification number so their breeding and jumping record, together with ownership details, can be checked against data held by the Show Jumping Association of Ireland. I will return to this point.
10. Had it been the case that the issue for determination here was the adequacy of the fencing of horses, the case could be easily resolved. Instead, the ownership of the wandering horses was strongly contested. No one claimed the injured horse, which was a fine animal, and ownership of the dead horse was specifically rejected at the time of the accident by the second named defendant, probably in the company of one of his sons, either the first named defendant or his brother.
11. I am satisfied from the treatment of this issue in McMahon and Binchy Law of Torts (3rd Ed. Dublin, 2000) at paras. 27.42 – 27.66, that to succeed the plaintiff is required to prove that one or other of the defendants, or both of them, had responsibility for these horses, in that they kept them under their control on their lands, and that they were negligent in allowing them to stray on the public highway.
Circumstantial Evidence
12. The law in relation to circumstantial evidence as it applies in criminal cases is well known. Circumstantial evidence can be the best that the nature of a case admits, but it is no less than evidence from the direct assertion of a witness; it can be more reliable. The duty of the court or the jury in a criminal trial is to examine that evidence piece by piece and to see whether each piece of evidence is proved beyond reasonable doubt. The evidence of an accomplice must be examined in the light of corroborating evidence. Independent evidence tending to show the accused committed the crime is examined before looking at what the accomplice asserts in the light of such corroboration, or bearing in mind the special warning on the dangers of relying on the evidence of an accomplice when it is not corroborated, in its absence. Such pieces of evidence as have been proven are then to be analysed together and the question is to be asked as to whether that evidence proves the guilt of the accused to the requisite standard and is inconsistent with any other rational hypothesis that may be based on the same set of circumstances. In every case, criminal or civil, the court of fact looks at every piece of evidence in the light of what other testimony supports it or undermines it or qualifies it and considers it with shrewdness and common sense. In applying circumstantial evidence in a civil case, the duty of the court is to look at each particular piece of evidence in isolation first of all. The court must ask itself the question as to whether that evidence has been proven as being probable. For instance, I have to decide on an individual basis whether a fence post was probably missing from the first named defendant’s field by the N6 on the day after this accident. I am then obliged to take all of these pieces of evidence that have been proven as a probability, and to put them together and to judge the issue as to whether the horses came from under the possession and control of one or other of the defendants, or both of them, by considering each piece of evidence in the light of every other piece of evidence that I find proved. If at the end of that analysis it is probable that the horses which caused this accident are the responsibility of the defendants, and there is no other probable scenario that is based on the same set of circumstances, which would thereby nullify that finding, the plaintiff succeeds.
13. I, therefore, turn to these circumstances.
Evidence
14. The plaintiff’s son Dominic was clearly in a state of shock on the day of the accident. He gave evidence that on the next day he went out with his brother to look at the first named defendant’s field beside the N6. This is a large field, with access to other fields. He was cross examined on this evidence and conceded that he could remember little after ten years and as to whether he had visited the field that day, or within a few days. I am satisfied on the balance of probabilities that Dominic O’Brien went the day after the accident to the field owned by the first named defendant on the N6. It is named after its previous owner, the Allen family, and for convenience I will call it Allen’s field. The reason I am so satisfied is that rumours were circulating at the scene of the accident that the horses which had caused it were owned by the Derwins. Although he was shocked, given that his father was now in hospital with serious injury, he and his family were under an imperative to attempt to ascribe responsibility. I regard it as highly unlikely that he would have spent the next day, or the next few days, simply sitting around. He did not impress me as that kind of person. He took photographs at this field. Separating it from the N6, there was a concrete post and palling fence and then a grass verge, less than 2 meters wide. One palling was down. He measured the height of the fence on the inside and outside, and took photographs. Two days later he revisited the field and the fence was still down. On the evidence, this field was a place where horses were always kept but on these two days on which he visited, there were no horses to be seen. On the 7th November, he visited the place again, together with his mother and took further photographs. The fence had been put back up and horses were visible. He could not recall if there were hoof prints in the vicinity of the broken fence the day after the accident, though he conceded that if there were obvious hoof prints he probably would have photographed them. Some few individual hoof prints were photographed on the 7th November, but there is nothing to say that these were referable to any escape of horses on the 21st October. Curiously, four hoof prints never appear in those images, just one two, not a continuity of prints along a line that a horse might have walked. That was one of the reasons making it prudent to inspect the scene.
15. John Watson is an equestrian expert. I prefer his evidence to that of Patrick Maguire, who is also an equestrian expert, and who was called on behalf of the defendants. One crucial issue leads me to prefer the evidence of Mr. Watson to that of Mr. Maguire. Mr. Maguire said that if ten to fifteen horses had escaped across the grass margin beside the N6 near Allen’s field that the effect would be like horses crossing a garden lawn. This is incorrect. Mr. Watson told me that the expectation of hoof prints on the grass margin if the horses walked out depended upon a number of variables, as to whether they were walking or galloping or jumping and the ground conditions. Marks could appear, he said, though there might not be marks because this depended upon the weather and the ground; if there were marks then nature would replace them over time, but over what time Mr. Watson could not say. On the issue of hoof prints, I cannot say as a probability whether these would be bound to be present had the horses escaped over the broken palling at some short time prior to the accident. I have walked this area and inspected it as to its firmness and its vegetation. The area of Allen’s field inside the fence is a bit lower than the grass margin beside the N6. At some places, however, the ground rises up close to the fencing. The drainage is different on both areas. Beside the N6, because of the elevated nature of the ground, the drainage is extremely good at that grass margin. I note that 12.5mm of rain fell on the previous day to this accident with only 3.6mm on the 19th October and 3.3mm on the day of the accident. The ground here obviously drains extremely easily, something apparent from visiting the scene. On the photographs presented, it is also covered with thick grass. This vegetation becomes obvious on walking it. The first named defendant made a mark in the grass by way of a test. I am satisfied that this required considerable force. I am not satisfied that hoof prints would have been obvious on the grass margin on the escape of several horses from this land. Inside the fence, the ground is soggy when there is heavy rain. There the ground marks very easily. That is not so on the outside and when I visited it was a very wet day.
16. I am further satisfied, on the evidence of Mr. Watson, that the fencing, when up, was inadequate and, I am satisfied, that the fencing was down on the day of the accident in at least one significant place beside the N6 allowing the horses to escape. When the fencing was up, the height inside was three feet and ten inches as a maximum. When the top fence paling is down, it is about a foot lower. I accept the evidence of Mr. Watson that in that broken position the fencing was woefully inadequate and that horses can simply walk out of the field. Some of the plaintiff’s later photographs showing a horse beside this defective fence make that obvious. I cannot accept the evidence of Jim Derwin, for the defendants, that a horse would not come out over that broken down palling “even if you put a horse collar on him”. To leave the pasture over this broken down fence a horse does not need to jump. As of the time of the trial, the fence, while still broken, is supplanted with strands of barbed wire. A year after the accident, I am satisfied, it was supplemented by what looks like an electric tape which, from the photographs, given that it passed around wooden, as opposed to plastic, posts did not seem to have a current passed through it. The time of the accident is also significant. As Mr. O’Brien was travelling into Athlone to collect his son, it was around dusk. Perhaps the clouds then quickly closed in, but when he was returning, and when the accident happened, it had become very dark. Mr. Watson told me, and I accept, that horses like to gallop and to wander about at dusk. If one horse were to leave this field, then the herd instinct would tend to bring several others, or certainly those within its group, with it. The position of dominance within the herd of a single wandering horse can also be important.
17. There is a large variability in the evidence as to the number of horses that were seen on the road immediately before and after the accident. In this respect neither the plaintiff nor his son could assist. Coleman Walsh, an experienced bus driver, described ten to fifteen horses galloping up the road. Martin Duffy, in the aftermath of the accident, saw four agitated horses on the roadway and about five others on the grass verge. Kathleen Seary, who got a lift home from the same factory in Athlone as Dominic O’Brien, described seeing two to three horses racing and similar evidence was given by David Nolan, who drove her. Michael Young, a resident of Moate, described four to five horses “flying up” the roadway. In this accident, one horse was killed and one horse was injured. It seems probable, therefore, that a figure of up to ten horses is correct. Two are now accounted for and the other seven or eight simply disappeared. I am satisfied that little can be learned from the times and places these horses were seen. The places ranged from beside Allen’s field to well beyond the county dump. As to where the horses were going, that was purposeless, towards Athlone according to some witnesses and in the direction of Moate according to others. The times of shocking events as testified to by witnesses can be unreliable and are vague here.
18. I am next concerned with the issue as to whether it should be inferred that these horses came from Allen’s field. I am satisfied that the first named defendant owned the relevant land, and that it is registered to him. As owner, his responsibility was to fence it correctly if he wanted to keep horses there. I am satisfied that he, together with his brother and his father kept horses there and that they jointly had responsibility for ensuring that they were properly kept in and fenced in an appropriate manner. Much evidence was presented to the court as to other people in the area who may have had horses. Significantly, the most powerful evidence, in that regard, was that of Gerry Tone. This witness works for Westmeath County Council since 1983, and is a supervisor since 1984. His job includes being called out by the gardaí when animals, meaning horses or cattle, are found wandering on the roadway. This can happen, on his evidence, at a very variable frequency of between once a month and ten times a month. Over the course of the last 25 years or so he could remember only about three accidents where horses were killed. He agreed that different people keep horses in or around Athlone. Having been called to the scene of the accident, a matter to which I will shortly turn, he was interested in ascribing responsibility. The next day he went down the Glen Road about two kilometres from the accident site. Down there, at a location which is now obliterated by the new M6, he found a field with lots of horses in it and which were held in by only one wire. He returned later and he saw two new gates tied across that wire, clearly with a view to keeping in the horses. He could not say if these were the strayed horses. Evidence was given by the first named defendant Francis Derwin, by his brother Jim Derwin and by Patrick Maguire of other people who may have kept horses within a three or four mile radius of this accident. I am satisfied that there were a number of people keeping horses in this area at the time of this accident. I am also satisfied that very few of them, and none that have been positively identified, would have been keeping at least ten horses in one field which might have escaped in one herd. It is also important to consider the quality of the horses.
19. I regard it as impossible, having driven the road, that the horses came from a halting site for Irish Travelling Community members beyond the first roundabout in Athlone. I am satisfied on the entirety of the evidence that the business of the defendants involved buying and selling good quality horses. Whereas the evidence was that over the years they had dealt in every kind of horse, I am satisfied that the predominance of their business was in dealing with good quality horses which were capable of jumping and hunting, whether ponies or larger, and which are generally called sport horses. At the time of the incident the defendants would have kept many horses in that field. I regard it as significant that on two occasions in the immediate aftermath of the accident horses were not present while the fence palling was down. The only evidence as to possession of the land viewed by Mr. Tone, on which there were horses on the day after the accident, is that the second named defendant used that field, but that does not determine the matter one way or another.
20. One horse was killed in this accident. The evidence has been that it was split in two and that its innards were all over the public highway. Mr. Tone had the task of getting a JCB digger, of putting the dead horse in it and of going to the landfill dump nearby to dispose of it. He, more than anyone, had a good look at the remains of this horse. I regard his evidence as being inherently reliable. He described the dead animal as “a fine big horse”. He said that it filled the loader of the JCB. This horse, he said, was “not a piebald, it was one of these nice bay horses”. I am also satisfied that Mr. Tone would have noticed if this horse had the characteristics of a working horse, such as having large hoofs or being thick set and that his description, in that regard, is of assistance.
21. The second horse involved in the accident, but surviving it with multiple cuts, was one called “Knockfune Dasher”. There was much debate as to the identification of this horse but I am satisfied to so identify it. This is also a fine horse, standing just short of 15 hands high. In its flank it carries a microchip which has an identification number 116569125A. The letter refers to the registering authority. At the scene of the accident, Gerry Tone arranged for this horse to be taken for temporary stabling to the premises of Seán Duffy, who lives about three miles from Athlone. It has been there ever since. Since it has not been claimed, Mr. Duffy and his son have bred a number of good foals from it. At the time of the accident they would have had very few horses. Garda P. J. Hoey of Ballinahowen Garda Station, gave evidence that in January, 2004 he went to Duffy’s farm with Olive Manning, a horse warden. Seán Duffy was there and pointed out a horse. Seán Duffy does not remember this. This was scanned for a microchip and, I am satisfied, this identification number was discovered and read and was given by Olive Manning Conroy, an experienced horse and dog warden, to Garda Hoey and thence to Sergeant Michael Shaughnessey who was investigating this incident. All of these are competent people. The relevant number is stored in the Show Jumping Association of Ireland records. I am satisfied on the evidence of Ronan Corrigan, the Chairman, that he personally imputed this number into his computer. His evidence was objected to on the basis he had never done this personally. I am satisfied of his honesty. I am satisfied from the evidence of Ronan Corrigan that there is a system of recording numbers and storing these for the business purposes of horse owners like the first and second named defendants. Anyone seeking information of a registered horse can inspect these through enquiry. I am satisfied that this horse was owned by a man called Eddie O’Connell, and that it was given a points record of success in jumping competition between the 14th February, 1998, and the 17th May, 1998. I am using this evidence only for identity purposes. Significantly, on the 6th June, 1998, a sale took place at Goresbridge horse sales. Eddie O’Connell sold a horse there for the sum of £2,205. Mr. Corrigan valued a horse of this kind at around to €3,000 to €10,000, but indicated that this was a very rough estimate from the information about it, as he had never seen the animal. Only three people in the purchaser’s ledger, out of 23 buyers, spent that amount or more. Among them was the second named defendant. The purchaser’s ledger records the total amount of sales and therefore any purchase could be based on buying a multiple of two or more horses. However, of the other two buyers who were potential purchasers, one is dead and lived at a very considerable distance from the scene of this accident and the other gave evidence to positively state that he had not bought Knockfune Dasher.
22. I have also had the benefit of the evidence of Eddie O’Connell. Regrettably, I find his evidence to be completely unreliable. He claimed that the horse which had been sold at the Goresbridge sales to the Derwins was one called “Queen of Manney”. He claimed this on the basis of something that the manager of the sales had said to him, but I am not satisfied that any such thing was ever said. He claims that Knockfune Dasher had been sold later at Ballinasloe Horse Fair in the first week of October immediately prior to this accident. He said this on the basis of his family having recently told him this. I do not accept this. On the 23rd January, 2004, Sergeant Shaughnessey rang Mr. O’Connell and asked him about Knockfune Dasher. I am satisfied that Edward O’Connell told him that he remembered the horse well, that she was the best that he ever had, that she was “a great pony” and that she once “won the league”. He told Sergeant Shaughnessey that he sold her in Goresbridge for over £2,000 and that Francey Derwin, who is the second named defendant, bought her and that he then got rid of her because she was involved in an accident. He told Sergeant Shaughnessey that he had inquired of the second named defendant “how the pony was getting on”, I am satisfied he did so because he was very fond of this animal, and that the second named defendant revealed to him that he had got rid of the pony because of “an accident”. Later, when Sergeant Shaughnessey attempted to take a statement from Mr. O’Connell, he said that he did not want to get the Derwins in bother as he did business with them. I am not satisfied that Sergeant Shaughnessey treated Mr. O’Connell in any improper way, as he alleged. It is beyond doubt that I am not entitled to have regard to what I am satisfied Mr. O’Connell told Sergeant Shaughnessey. Nor am I entitled to have regard to Sergeant Shaughnessey’s account of it. I am only entitled to have regard to evidence on oath, not prior statements by people who are not plaintiffs or defendants or their agents not on oath. These are not admissions but merely prior inconsistent statements that can be had regard to solely on the issue of credibility. This problem was recently the subject of reform in the Criminal Justice Act 2006, in respect of statements taken by the gardaí in the course of criminal enquiries which are later disavowed under oath. No such reform, however, has been made for non criminal cases.
23. I am therefore satisfied that I am only entitled to have regard to the fact that Edward O’Connell owned a horse called Knockfune Dasher; that on his evidence his son jumped it up to May of 1998; that he entered a horse for sale in Goresbridge sales the following June; and that the second named defendant there purchased a number of horses. I am satisfied that among the horses that he purchased was Knockfune Dasher. I regard it as a coincidence beyond comprehension, having looked at every reasonable possibility to otherwise explain this fact, that Knockfune Dasher should appear on this roadway as the injured horse. It could not reasonably have come from anywhere else other than the first named defendant’s field, Allen’s field, and its owner could not be reasonably thought to be anyone’s other than the second named defendant. It was under the first named defendants control as was the dead horse.
Conclusion
24. I am satisfied that the possession and control of these horses was in the first and second named defendants. I am satisfied that each of them was involved in enterprise involving the purchasing and selling of horses and that the main focus of this involved keeping the horses at Allen’s field. The horses that were involved in this accident were probably owned by the second named defendant. There were kept at the lands of the first named defendant who was in possession and control of them. These horses were inadequately fenced and left the land at around dusk on the 21st October 1998, and caused the serious accident whereby the plaintiff was badly injured. In reaching that conclusion I am not taking into account any evidence concerning the conviction of the first named defendant in respect of a wandering horse at this location about one year later, nor other wanderings of horses allegedly associated with the Derwin family at other places; I am not relying on the prior inconsistent statements of Eddie O’Connell, as these are inadmissible in evidence; I am not relying on any garda opinion as to liability; and, finally, I regard the search by Garda Robert McConnell around the area after the accident as being cursory and it told me little. These horses disappeared shortly after the accident, apart from the two mentioned. The gardaí never found them. They did not look very hard. So, where did they go, and how? It is clear that the owners of these horses spirited them away quickly after the accident as they were neither seen again that night, nor found wandering the next day.
25. I note, in addition to the evidence already analysed, that the second named defendant turned up at the county dump and spoke to Mr. Tone while the dead horse was in the loader of the JCB. I am satisfied that what occurred is evidence against him alone. At around 10.00pm on the day of the accident the dead horse was being put into the landfill site, which is a short distance off the road by the N6 roadway and very proximate to the scene of the accident. You would need a reason, however, having visited this dump, to go there. Francis Derwin Snr, the late second named defendant, drove up in a jeep. He had a young man with him. I regard it as probable that this young man was one or other of his sons, though they both have denied ever being there. Francis Derwin Snr looked out of the window of the jeep, but did not leave the vehicle. Gerry Tone asked him “is this your horse?” The late Mr. Derwin replied “No”. Gerry Tone then said “Well” and he replied “I am just here to make sure it is not one of our horses”. I do not accept the second named defendant, who had many horses, could have made this assertion as a matter of truth without getting out and examining the horse’s head and feet. I cannot accept, in addition, the evidence of Jim Derwin, brother of the first named defendant, that on the day after the accident he checked all of the horses belonging to the defendants; that he knew that horses “never came out” of Allen’s field; and that every fence was in order. Since this testimony for the defence conflicts with the evidence of Dominic O’Brien, I prefer that evidence in favour of the plaintiff. I also discount the evidence of Francis Derwin, the first named defendant, that the grass verge near Allen’s Field is easy to mark. It is not. Nor, is it any way like a garden lawn. I cannot accept his evidence that he did not know why there was a white electric-type tape put up as a kind of supplemental barrier when the plaintiff’s wife took a photograph of the fence on the 10th October, 1999. I cannot accept the evidence of any of the defendants’ witnesses that they never kept a list for horses and did not keep any reliable or proper records. I cannot accept their evidence that they never owned Knockfune Dasher, though I do accept their evidence that they knew nothing about a horse called Queen of Manney. Of itself that establishes by a different route, with Mr. O’Connell’s evidence as to sale and the Goresbridge records, that the injured horse was Knockfune Dasher.
26. Given the condition of the fencing there is no doubt that a group of horses could easily stride away from their captivity in Allen’s Field. This is what happened and that is how the accident occurred. As to there being no horses visible on the next day after the accident, I am satisfied that what occurred was probably that the horses were rounded up that night and put hurriedly away from Allen’s field and probably on the second named defendant’s land near Glen Wood, as seen by Mr. Tone, later fenced in with loose gates, and that they were returned, and therefore were visible, some days later and were seen by the plaintiff’s son on the 7th November. As to negligence, the evidence convinces me that the fencing was inadequate. It was broken down. This happened because of horses leaning over it and eating the luxuriant grass verge while putting their weight against it and cracking the concrete of which it is made and weakening it. I am satisfied that horses were fed over that fence from the roadway with hay from a vehicle that was quite often parked there. This encouraged the horses to eat that way. In any event, the growth of long grass in the road margin is also a food source that no horse would fail to attempt to stretch over the concrete fencing for.
Damages
27. A number of helpful medical reports have been submitted to the court and, in addition to that, I had the benefit of hearing Dr. Simone Carter and Dr. Mark Delargey. The plaintiffs own evidence on this issue impresses me. Some days after this accident the plaintiff regained his sense of orientation and realised that he was in hospital. He was only in Portiuncula hospital for a week and he felt that, perhaps, nothing too bad had happened. He had snapped his collar bone and had chest and head injuries and he thought he would be fine. Working three months after the accident in his carpentry workshop, he lost concentration and cut off the top of one of his fingers. It was then he realised that he had a brain injury. This accident is too remote for me to ascribe responsibility to the defendants for it. For the first few years after the crash, the plaintiff describes information as disappearing out of his head. He had given himself only six weeks to recover and the realisation that he was now permanently affected was one that he has spent a great deal of time attempting to come to terms with. He now has difficulty concentrating on watching the television or reading more than a paragraph or so of a newspaper. He never got back to work. I am satisfied that even though his earnings were small prior to this accident, the plaintiff was a skilled carpenter from which he got the kind of satisfaction that men and women do out of usefully using their hands. After the accident, he got a supervisior job with a local business man, whom I infer was a friend. This job just involved opening and shutting a premises and being there as a kind of caretaker. He was unable even for this, however. He put a sun room on to his home, as a project. This would have taken him perhaps a month or less prior to his accident but it has taken him five or six years to bring it to completion. He says that he has now come to terms with the fact that he cannot work. Sometimes, even his ability to talk goes “a bit haywire”. He has become obsessive and unable to do more than one task at a time or to think about more than one issue at a time. He has suffered from anxiety and negative thought. Random headaches occur from time to time. He does not get chest pain but he does get back pain. His wife has had difficulty coping with him but has been tremendously supportive and decent.
28. I have had the benefit of a vocational assessment report done by the national rehabilitation hospital’s Catherine Logan. She says that he will not be able to seek and maintain secure open employment in the future. He may try to assist his wife, who had to abandon a small stained glass craft project to help him, but even the ability to do any kind of light employment is speculative. Dr. Mark Delargey, after reviewing the plaintiff, gave the following opinon:-
“Mr. O’Brien sustained a traumatic brain injury as a result of a road traffic accident on the 21st October, 1998 . While the reported Glasgow Coma Score was normal on initial assessment in Portiuncula hospital, the case for a significant traumatic brain injury is made through the extent of Mr. O’Brien’s facial trauma and the report of the CT brain scan reports involving multiple skull fractures, facial fractures, a depressed fracture of the right temporal bone, they comminuted fracture of the right orbit and the report of generalised brain swelling.”
29. The report on review from Dr. Simone Carter, dated 1st December, 2005, confirms the plaintiff’s view of himself. She gave the following summary of her views:-
“Mr. John O’Brien is now a fifty-eight year old gentlemen who sustained what would be classified as a very severe traumatic brain injury just approaching ten years prior to undertaking this latest review and assessment. The severity of the injuries indicated by the fact that he lost consciousness, his brain scan was positive and that he had a post traumatic amnesia of at least three days. Mr. O’Brien’s clinical course has changed over the last ten years, as would be expected. The initial signs of high levels of irritability, poor memory and concentration have reduced and infrequency and intensity, though they continue as residual cognitive and behavioural changes that were not reported features of his pre-morbid personality. Mr. O’Brien is fortunate that, prior to the accident, he was a bright gentlemen, whose pre-morbid intellectual ability was estimated to have been within the superior range of ability and he has been able to use some of these well-preserved cognitive strengths to compensate for his current difficulties.
On formal cognitive assessment, overall he performed very well with scores between the average to the superior range of abilities. It is significant however, that he demonstrated specific cognitive deficits with switching attention, attention and concentration, working memory and speed of information processing. Indeed, it is these persisting deficits that have interfered with Mr. O’Brien’s ability to resume his level of functioning as it was prior to the accident. In addition he has consistently reported a decline in his confidence and ability to undertake tasks that would be considered to be well within his ability. He also has the commonly reported physical problems of sensitivity to fatigue and headache that can also
While Mr. O’Brien has performed well on cognitive assessment, it must be borne in mind that these assessments are usually performed under ideal circumstances where there is minimal noise and distraction, instructions are clearly and carefully explained and patients are usually very motivated to perform to the very best of their ability. Unfortunately, in the “real world” there are often greater levels of distraction and not always the same opportunities for clarification and some of these factors interfere with Mr. O’Brien’s level of functioning and the day to day problems he experiences. He is fortunate that his family have been very protective towards him, especially to keep stress to a minimum and their attention to the clinical recommendations made has been a great benefit to him.
In relation to prognosis, given that he is now approaching ten years since he sustained these injuries, it is highly unlikely that his current status will improve sufficiently at this stage, that would allow him to resume his life as it was, prior to the accident. My opinion is that he is currently at his highest level of functioning and that the current strategies (cognitive and behavioural) he uses should continue for the foreseeable future.”
Special damages
30. The amounts that have been presented as to loss of earnings were entirely reasonable. There is also something that I must to take into account that over the course of the last ten years the plaintiff could have expected, as a skilled craftsman, to have been well employed for good money at a time when construction was a mainstay of the economy. Mr. Peter Beirne, who gave evidence, said that he could now expect to earn based on his previous income, at least a sum of €14,950 as a skilled operative. I would regard that as modest. If the plaintiff does not get a job from now until age 65, his loss is €83,700 based on his previous average. His loss of earning to date is in the sum of €82,570. These figures have been arrived at reasonably in my opinion. In addition the case has been made that his wife is entitled to a sum in respect of damages for home care and I am not satisfied that on the authorities I am entitled to make such an allowance. My sympathy goes very much in favour of the plaintiff’s wife and the tremendous work that she has done. It was apparent even as they were sitting in court that the plaintiff depends upon her and their mutual affection is obvious. It was argued that the alternative to making such an award was to make an allowance in respect of home care. I simply feel that there is no legal warrant for me to do so since the precedents opened to me concern the use of nursing skills to a badly injured plaintiff.
31. In addition, the following special damages are agreed:-
(1) Travelling €10,000;
(2) Subsistence €2,000;
(3) Doctor’s bills €932;
(4) Pharmacy €128.27;
(5) Physiotherapy €533.75;
(6) Miscellaneous €400;
(7) Destruction of motor vehicle €3,000;
(8) Destruction of equipment €2,500.
Adding all those figures together, the amount of special damages comes to €177,394.02 when the future earnings are reduced by 10% due to ordinary risks such as underemployment and redundancy.
Quantum of General Damages
32. Under the relative legislation, I am bound to have regard to the quantum of damages as worked out by the Personal Injuries Assessment Board. These figures are set out in its Book of Quantum. While some scepticism was expressed by counsel in relation to this exercise, I wish to record that I am grateful for the work done by the Personal Injuries Assessment Board on the issue of general damages. It provides a touchstone against which the cases can be assessed and it is a useful expert view which can help the court in coming to a conclusion on this difficult issue.
33. There is maximum level to the award of general damages that can be made in a personal injuries case. Counsel made some interesting observations on the contrast between that maximum amount and the kind of damages that juries can award in defamation actions and the amounts that have been secured by persons who have been wrongly convicted of crimes and who may have actually been innocent. With respect to the diligent submissions of counsel, these observations are beside the point. I am obliged to apply the law as it is and if the Supreme Court wishes to look at the question of the maximum amount of general damages as regards all cases in the future, I will, of course, regard myself as bound by that observation if it happens. In N.N. v. S.N., [2005] 4 IR 461 Denham J. indicated that the cap on general damages, previously set at £150,000, is now €300,000. I cannot see the condition of the plaintiff as attracting that maximum amount. The plaintiff is still able to drive and is coping better as the years have passed with the devoted assistance of his family.
34. In addition to the plaintiff’s main brain injury, there are other smaller bone injuries, a small degree of scarring and what would normally be highly significant in terms of an injury, the loss of his sense of taste and smell, which would otherwise attract an award of serious compensation. At p. 4 of the Book of Quantum the following passage appears, which seems to me to be correct:-
“If, in addition to the most significant injury as outlined above, there are other injuries, it is not appropriate to add up values for all the different injuries to determine the amount of compensation. Where additional injuries arise there is likely to be minor adjustment within the value range.
35. It is clear that the plaintiff has a serious and permanent condition. The Book of Quantum classifies skull fractures and brain injuries under three headings. The first, attracting the least significant amount of damages involves a skull fracture with no loss of consciousness. The second, leading to more significant damage, involves a skull fracture with a brain injury but with no loss of consciousness. Finally, the most serious category involves a skull fracture with intracranial injury and loss of consciousness. For a serious and permanent condition, the maximum amount set is €129,000. An argument was presented that this Book of Quantum was formulated in 2004. That does not mean that the values are out of date, especially at a time when property values are slipping rapidly and when the economy is in serious challenge. It could be that the deflation since that time makes the sums questionable in the other direction, but they seem to me to be a good guide. I think it is correct to award the plaintiff the sum of €120,000 under that heading, and it could be divided as pain and suffering to date in the sum of €80,000 and pain and suffering into the future in the sum of €40,000. As to his fractures, and as his scarring, I propose to add on the sum of €20,000, divided as €10,000 to date and €10,000 into the future. For his loss of his sense and taste and smell I will add the same figure.
36. Under the decision in Reddy v. Bates, [1983] I.R. 141, any award of loss of earnings into the future should take into account the uncertainties of the labour market and the fact that permanent and pensionable employment is no longer the norm. The amount of money awarded to the plaintiff in respect of loss of earnings into the future should therefore diminished by 10%.
Result
37. The defendants were each and jointly and separately liable in respect of the plaintiff’s injuries. The plaintiff is entitled to general damages in the sum of €160,000. His special damages as previously calculated should be reduced on the Reddy v. Bates principle, so the final decree for damages to the plaintiff is €160,000 plus €177,394.02 special damages making a total of €337,394.02.
Felix Moorehouse v The Governor of Wheatfeild Prison
, The Minister for Justice, Equality and Law Reform, Ireland and The Attorney General
[2010-5534 P]
High Court [Approved]
8 March 2021
unreported
[2021] IEHC 248
Mr. Justice Bernard Barton
March 08, 2021
JUDGMENT
1. This case was remitted back to the High Court by order of a majority of the Court of Appeal on foot of the Plaintiff’s appeal against the order I made dismissing his claim to have the following issues determined:
(1) Determination of the issue as to whether the Plaintiff was guilty of contributory negligence for the accident that befell him, as pleaded by Defendants;
(2) Apportionment of liability as between the Plaintiff and the Defendants if there is a finding of contributory negligence against the Plaintiff;
(3) Assessment of the Plaintiff’s damages, taking account of any apportionment of liability consequent on a finding (if any) of contributory negligence on the part of the Plaintiff.
2. Written submissions were exchanged and filed on behalf of the parties in advance of the resumed hearing which took place on the 2nd February 2021. It is not proposed to repeat in extenso the findings of fact which I made in my judgment delivered the 15th August 2017 (see neutral citation [2017] IEHC 535); rather these will be referred to where necessary in relation to the first issue and, if appropriate, in relation to the determination of the second issue. This judgment should, therefore, be read in conjunction with the judgment of this Court following the trial of the action.
3. The Court is not concerned with the question of liability. This was determined in favour of the Plaintiff by a majority of the Court of Appeal, Costello J. dissenting. For the reasons set out in the judgments of Edwards J. and Donnelly J., the Court of Appeal concluded that I had erred in law by making an order dismissing the Plaintiff’s claim in circumstances where the Plaintiff’s account of how the accident occurred had been rejected. Although obiter I stated that had the Defendant been found liable, I would also have found the Plaintiff guilty of contributory negligence and would have apportioned fault to a high degree against him; remarks which are consequently non-binding.
4. It follows that notwithstanding the Plaintiff’s failure to provide a cogent explanation for how his hand came to be in the path of the blades, the starting point for the resumption of the case is that absent evidence establishing that the Plaintiff had been subjectively reckless (of which there was no finding), his actions would have been no more than a causa sine qua non and not the causa causans. Having adduced adequate proof of the causa causans of the accident arising from the findings of negligence and breach of statutory duty on the part of the Defendants the liability therefor followed, and the Plaintiff is entitled to succeed in his claim against them.
5. In a case where the transcript of the evidence exceeds 4 days it is the practice of the Court of Appeal that the parties agree extracts of the evidence from the transcript which are relevant to the issues on appeal. In this case, the transcripts ran to 29 days. The practice was followed and consequently the Court did not have sight of large tranches of the evidence. Whether or not this explains the reference at para 92 of the judgement by Edwards J. to the “absence of evidence” to establish a finding of “subjectively reckless” behaviour by the Plaintiff is plainly a matter of conjecture; however, the transcript is in fact replete with evidence on which findings have been made, which on the Defendant’s submissions, if accepted, would warrant the Court coming to the conclusion that the Plaintiff was reckless and thus guilty of contributory negligence at common law as well as being in breach of statutory duty.
6. It follows in the circumstances of the case that the Court is concerned to determine whether, on the evidence, the actions or omissions alleged on the part of the Plaintiff were the result of factors such as an error of judgement, carelessness, heedlessness, inadvertence or inattention, or as a result of some positive or deliberate act involving the running of a subjective risk. In this regard it is pertinent to refer to the case pleaded by the Defendants at paras 3 and 4 of the amended defence delivered herein which reads as follows:
“3. The Defendants deny that they are guilty of the alleged contributory negligence or breach of duty or breach of statutory duty.
(a) The incident or accident was caused by the negligence or breach of duty and/or recklessness on the part of the Plaintiff.
(b) The Plaintiff was the author of his own misfortune.
(c) The Plaintiff acted contrary to warning signs in operating and/or purporting to operate the machine as alleged.
(d) The Plaintiff acted contrary to all instruction from the Defendants, their servants and/or agents in operating and/or purporting to operate the machine as alleged.
(e) The Plaintiff acted contrary to all warnings and/or instruction from fellow inmates in operating and/or purporting to operate the machine.
(f) The Plaintiff removed guarding from the machine in operating and/or purporting to operate same as alleged.
(g) The Defendants, their servants and/or agent had shut down the machine.
(h) The Defendants, their servants and/or agent had given instruction not to operate the machine.
(i) The Plaintiff was not authorised to operate the machine”.
7. At paragraph 4 (1) of the defence the following plea appears:
“Further if the accident or incident occurred in the manner alleged or at all and/or if the Plaintiff suffered the alleged or any personal injuries, loss and damage then the Defendants will claim that they are not responsible and/or liable or not wholly responsible or liable to the Plaintiff by virtue of the fact that same arose and/or was caused wholly and/or partly by the negligence and/or contributing negligence on the part of the Plaintiff for the reasons set out above.”
8. At the outset of the principal judgment delivered on the 15th August 2017 a number of issues, observations and findings were set out and discussed in greater detail later in the judgment. For the purposes of contextualising the first and second issues, it may be helpful to set out again the observations made which are relevant thereto as follows:
(i) The cutting/cropping and punch facilities constituted dangerous parts of the GEKA Minicrop which required guarding to minimise or avoid the risk of injury; the opening to the cropping facility was designed and fitted with an adjustable device known as a hold down guide which also served as a safety guard (the guide-guard);
(ii) At the time of the accident, the Plaintiff’s left hand was in the pathway of the shear blades of the machine whose guide guard had been removed; the identity of the individual and responsibility for the removal of the guide guard was in question;
(iii) Both the Plaintiff and Jonathan Nicholson, the Industrial Training Instructor (ITI) with responsibility for supervision and training in the workshop, denied removing the guide-guard; (The identity of the person who removed the guide-guard was established, accordingly, no finding was made against the Plaintiff or ITI Nicholson)
(iv) If fitted and properly adjusted, the guide-guard would have prevented any part of the Plaintiff’s hand entering the cropping compartment to the point where it would have been in the path of travel of the shear blades; the injuries could not have been sustained had the guide-guard been so positioned;
(v) The guide-guard was not a fixed guard; it was adjustable and removable without the use of a tool;
(vi) The cropping facility could be operated without the guide-guard in position; consequently, the cropping blades were exposed, accessible and clearly visible to the operator and anyone supervising the operation of the machine;
(vii) Shortly before the accident, a problem had arisen when two other prisoners were using the cropping facility as a result of which the steel flat or stock bar (steel bar) which they were trying to cut jammed between the cropper blades;
(viii) Following the report to him of the problem, ITI Nicholson removed the steel bar. Whether or not the machine had been completely switched off by him, it had not been locked out in a way which prevented it from being restarted;
(ix) The machine was supplied and fitted with a lock out facility in the form of a pad lockable device; in practice, this was not utilised prior to the accident by either the training staff or by those servicing the machine and was not fitted on the day of the accident;
(x) On the afternoon of the accident there were thirteen prisoners present in the welding workshop; whether the Plaintiff was actively participating in his course or whether he had been assigned to sweeping duties because the available welding booths were already occupied was in question; the Plaintiff claimed he was on his welding course, however ITI Nicholson gave evidence that because he had arrived late to the workshop the Plaintiff had been assigned sweeping duties. I was satisfied that regardless of whether or not the Plaintiff was assigned sweeping duties on the afternoon, he was entitled to use the GEKA cropping machine without obtaining permission to do so.
(xi) The instruction and supervision ratio of staff to prisoners considered appropriate by the IPS was eight to one; whether or not Prison Officer Vincent Maher was in the workshop with ITI Nicholson on the afternoon of the accident was in question; the Plaintiff claimed he did not see him there at any time before the accident; Officer Maher said he was present and gave instructions to the Plaintiff (The Court found that the Plaintiff did not receive any instructions from Officer Maher not to go near the machine.).
(xii) At the time of the accident, neither ITI Nicholson, Officer Maher nor any other member of the prison staff were present in the work and training area where the Plaintiff and the other prisoners were working; the period of absence was in question; The Plaintiff claimed that the area was unsupervised for 10 or 15 minutes at least whereas ITI Nicholson and Officer Maher claimed it was a matter of minutes. The Court found that ITI Nicholson and Officer Maher were both present in the workshop on the afternoon of the accident but that before the occurrence thereof and as a result of a problem which had developed with the GEKA cropping machine, ITI Nicholson had left the area to go to the office to get a lock out/out of order tag. He got delayed as a result of receiving a call from the governor which he took. In the meantime, Officer Maher left the vicinity of the machine and went into the storeroom. Neither Officer Maher nor ITI Nicholson were present in the workshop at the time when the accident occurred.
(xiii) Whether or not the Plaintiff had been instructed and trained in the safe use and operation of the GEKA, and whether or not shortly before the accident he and others in the vicinity of the machine had received instructions from ITI Nicholson and/or Officer Maher not to go near it was in issue; the Plaintiff claimed that he had received neither training nor instructions; ITI Nicholson and Officer Maher claimed he had received both. The Court found that the Plaintiff had received appropriate training and instructions on the use and operation of the machine and had demonstrated his competency in the use thereof to the point that he did not require permission in the workshop to use or operate it.
(xiv) Had such instructions been given not to go near the GEKA, they were confined to prisoners in the vicinity of the machine; those working elsewhere in the workshop would not have been aware that the machine was out of order and was not to be used; significantly, prisoners who had been trained and had demonstrated competence in the operation and safe use of the cropping facility could use the GEKA without seeking permission to do so; (In addition to findings that the Plaintiff had received appropriate instructions and training in the safe use and operation of the machine, he had demonstrated his proficiency in the use and operation thereof and did not require permission to use the machine for cutting steel flats. The court found that no express instruction was given to the Plaintiff not to go near or use the machine by either ITI Nicholson or Officer Maher and for the reasons set out in the judgment would not have been aware that such an instruction had been given to those who had been using or were working in the vicinity of the machine once a problem developed therein.).
(xv) At his request, the Plaintiff commenced a structured methadone programme on the 16th September 2008; he had been using illicit drugs before commencing the programme and had smoked heroin while on transfer to Wheatfield.
(xvi) As a matter of probability, he continued to use illicit drugs both before during and after the accident; details of the type, quantity and level of illicit drugs used were not canvassed with the Plaintiff;
(xvii) Whether the dose of methadone administered on the day alone or in conjunction with other illicit drugs would have had an effect on the Plaintiff’s cognitive and psychomotor functioning material to the cause of the accident was in question; (the court found that the administration of methadone alone and/or in combination with other illicit substances which had likely been ingested by the Plaintiff played no material role in the cause of the accident.)
(xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv), (xxv) and (xxvi) involve a series of subsidiary observations in relation to the use of methadone and illicit drugs as well as the screening therefore.
(xxvii) When stabilised on methadone, it does not follow from a positive result for cannabis and or benzodiazepine that 24, 48 or 72 hours later that the concentration of those drugs in the system is such as would produce a meaningful impact on the level of psychomotor functioning; with all such drugs assessment of the individual for effect by direct conversation, personal interaction and observation is clinically significant.
(xxviii) Any prisoner reporting being unwell or showing signs of intoxication or of being “strung out” is not permitted to enter the workshop but is returned to his cell and, if necessary, referred for medical attention;
(xxix) Cognitive and psychomotor function may be affected to a greater or lesser extent by the presence, quality, quantity, time and type of illicit drugs and/ or methadone in the system; whether the Plaintiff was stabilised on a methadone dose of 60 ml at the time of the accident was in issue; (the Court found that as the Plaintiff was admitted to the welding workshop following a conversation with ITI Nicholson it was highly unlikely that he was exhibiting any signs of being unwell or of being inebriated in any form and that had he been exhibiting any such signs, he would have been returned to his cell by a class officer. The Plaintiff took his dose of methadone most likely between 10 and 10.30 am on the morning of the accident. The Court found that there were no contra-indications apparent to the dispensary nurse when the Plaintiff presented himself for and was administered the prescribed dose of his medication. The Court accepted the evidence of Dr. Scully, who treated and assessed the Plaintiff from time to time before the accident that, had he any concerns about the Plaintiff’s medical capacity to attend and participate in the welding workshop at any time he would have raised and acted upon those concerns; there was no such evidence.)
(xxx) The provisions of the Safety, Health and Welfare Work Act, 2005 (the 2005 Act) and the Safety, Health and Welfare at Work (General Application) Regulations 2007 S.I. No. 299/2007 (the 2007 Regulations) applied to the prisoners when working in the prison workshops.
(xxxi) The Safety Statement in force for the prison workshops at the time of the accident which contained a risk assessment relevant to machinery was drawn up in 2003 and a General Metal Workshop Standard (MS1) was issued in June 2007 but neither were machine specific. Whether the relevant statutory requirements had been complied with was in issue; (the Court found that there was a breach of statutory duty on the part of the first, second and third Defendants in failing to comply with the requirements of the 2005 Act and in particular, Regulations 33 and 34 of the 2007 Regulations .).
(xxxii) The focus of the workshops was on training and up-skilling rather than on production.
(xxxiii) The metal/ welding workshop is self-contained and incorporates an office, toilet facilities, store/ stock room, as well as a work and training area; prisoners, whose names are recorded on a list, have to be admitted individually and are required to wear personal protective equipment at all times while in the welding workshop.
(xxxiv) Metalwork machines, including the GEKA, tools, welding equipment, ten ordinary and three auxiliary welding booths were located in the work and training area of the workshop.
(xxxv) The removal of or making adjustments to the guide-guard was restricted to ITI Nicholson and the servicing engineer; training on the safe use and operation of the machine included information about the purpose of the guide-guard together with an instruction that the machine was never to be used without the guide-guard in place; (the Court found that the Plaintiff had received instructions in training on the safe use and operation of the GEKA machine.)
(xxxvi), (xxviii) are concerned with the provision of PPE and the supervision of prisoners before leaving the workshop.
(xxix) Had there been supervision in the work and training area of the workshop at the time of the accident it is highly unlikely that the accident could or would have occurred;
(xxx) to (xxxi) were concerned with the timing of training sessions and with the issuance of disciplinary reports known as a P19;
(xxxii) Photographs of the GEKA taken by the ITM Austin Stack shortly after the accident show the work piece stop bar fitted in position to the back of the machine; whether the stop bar was missing at the time of the accident was in question; (the Court found that the backstop was in position and was not missing as suggested by the Plaintiff.)
(xxxiii) A Governor’s parade takes place every morning between 9 and 10.30 am. Prisoners are entitled to attend and bring any complaints or other issues of concern which they may want addressed to the attention of the Governor.
(xxxiv) When prisoners have mastered horizontal welding, they progress to vertical welding; the Plaintiff was still engaged in horizontal welding at the time of his accident.
(xxxv) Certificates of competency in the different types of welding are issued once sufficient levels of competency have been reached and demonstrated in front of an external verifier. A training record is kept by ITI Nicholson, generally filled in on a Friday.
(xxxvi) The record for the Plaintiff shows that he attended the welding course over four weeks, commencing on week ending 42 and that he received an induction, a safety video, and safety training, including manual handling, as well as guillotine training;
(xxxvii) and (xxxviii) are concerned with the post-accident servicing of the blades in the GEKA cropping machine.
(xxxvii) to (xli) were concerned with post-accident investigation and will not therefore be repeated. Suffice is to say that for comprehensive overview this judgment should be read in conjunction with the principal judgment of the court delivered in this case.
9. The question of whether or not the Plaintiff was subjectively reckless in doing whatever he did when operating the machine at the time of the accident falls for consideration in the determination of the first issue herein. I did not address it or make a finding in relation to that matter since I did not accept the Plaintiff’s account of the accident, and as a result concluded that he had failed to establish the case he had brought to Court and accordingly dismissed his claim. Given the circumstances in which the case has been remitted back to this Court for a resumption of the action and having regard to the first two issues which must be addressed, this is as convenient a place as any to set out the statutory provisions relevant thereto.
Contributory negligence and breach of statutory duty
10. Section 2 (1) of the Civil Liability Act, 1961 as amended provides for the interpretation of terms used in the Act. “Negligence” is defined as including “breach of statutory duty”. The Act made express provision for the apportionment of liability in a case of contributory negligence in s. 34 which reads as follows:
“34.—(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the Plaintiff was caused partly by the negligence or want of care of the Plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the Defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the Plaintiff and Defendant: provided that—
(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
(b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the Plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the Defendant might, apart from this subsection, have the defence of voluntary assumption of risk;
(c) …
(2) For the purpose of subsection (1) of this section—
(a) …
(b) …
(c) the Plaintiff’s failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the Plaintiff’s breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent.”
11. A simple and classic example of a statutory duty designed to prevent a Plaintiff from injuring himself or herself is the Road Traffic (Construction Equipment and Use of Vehicles) Amendment No. 2) Regulations, 1978 S.I. 360/1978 requiring the use of seatbelts and crash helmets. Contributory negligence at common law has a different meaning in an action for negligence than for an action for breaches of statutory duty. See Stewart v. Killeen Paper Mills Ltd[1959] I.R. 436 at 441. Contributory negligence at the common law is founded on the principle that one owes a duty to take care for one’s own safety in any given set of circumstances. The duty of care owed by a Plaintiff in an action for breach of statutory duty, such as an action under the provisions of the Safety Health and Welfare at Work Act, 2005 (the 2005 Act) has long been considered less extensive than in actions for common law negligence. See Stewart above and Kennedy v. East Cork Foods[1973] I.R. 244 at 249.
12. There is a long line of authority for the proposition that carelessness, inattention or inadvertence on the part of an employee in an action for damages brought for breach of the provisions of the Safety in Industry Acts and more recently the Safety, Health and Welfare at Work Act, 2005, would not warrant the Court in making a finding of contributory negligence against the employee. See also Dunne v. Honeywell Control Systems[1991] ILRM 595 and most recently McWhinney v. Cork City Council[2018] IEHC 472 at para. 49. This is as convenient a point as any at which to mention that although the accident involving the Plaintiff occurred in the workshop of Wheatfield Prison and that the Plaintiff was not an employee in the ordinary industrial sense of the word, it was accepted that the provisions of the 2005 Act and the 2007 Regulations made thereunder were applicable.
13. The Court raised with the parties the decision of the Supreme Court in McSweeney v. McCarthy, (Unreported), delivered on the 28th January 2000 which appeared to be particularly relevant to the first two issues under consideration and in respect of which submissions were made by the parties. That case was decided against the background of the statutory scheme that the health and safety of employees established by the Safety in Industry Acts 1955 to 1980 and the Safety, Health and Welfare at Work Act, 1989. The case involved a trained painter who was employed by the defendant in a chemical factory. Part of his work duties involved carrying out painting at heights with the use of a ladder. The plaintiff fell from the ladder in the course of carrying out his duties. The ladder was neither tied by the plaintiff nor did the plaintiff use anybody to stand or restrain it while he was using it. The case came on for hearing at the High Court in Cork. The plaintiff’s claim was dismissed on the basis that the plaintiff had failed to establish any negligence or breach of duty including breach of statutory duty on the part of the Defendant. The plaintiff appealed against the decision. The Supreme Court allowed his appeal. Delivering the judgment of the court, Murray J., as he then was, observed at the foot of p. 8:
“In these proceedings it is common case that it was foreseeable that the Plaintiff at some point in the course of his duties would require the assistance of someone else to secure the ladder at it’s foot when he had to mount it. This is because the climbing of an unsecured ladder is inherently dangerous. It is also common case that, in the circumstances of this case, it would be placing too onerous a duty on the employer to contend that he should have provided the Plaintiff during entire his period of work with an assistant ready to hold the ladder, as the isolated need arose.”
And on p. 9 he continued:
“The reality of cases like the present is that both employer and employee had an opportunity to consider how the work should be carried out, whether it involved any dangers, and, if so, how they should be avoided. By denying liability because only the employee was present is in effect to seek to plead some sort of last opportunity rule. That, however, is not the basis of liability. Admittedly, the employee is more proximate to the events leading up to the circumstances in which the injury occurred. But this is not the test of liability. The test is dependent upon control of the work.”
The learned judge concluded at p. 17 of the judgment that:
“the Defendants were guilty of negligence and breach of duty, including statutory duty and the learned trial judge erred in law in not so holding.”
He then went on to make the following statement at the top of p. 18:
“Having found that it had not been established that there was negligence on the part of the Defendants, the learned trial judge did not consider the question whether the Plaintiff was guilty of contributory negligence. Again it is clear from the undisputed facts in this case that the Plaintiff himself was guilty of negligence and breach of statutory duty in failing to take reasonable care for his own safety. He fully appreciated the danger of ascending an unsecured ladder and the risk of injury attached thereto, but in spite of such knowledge, he knowingly took the risk of ascending a ladder which was not secured and when there was no person holding the ladder while he was ascending it. In so doing, he, as an experienced workman was not taking reasonable care for his own safety. In not so doing, he was not only in breach of the common law duty but statutory duties by then imposed, namely s. 125 (7) of the Factories Act, 1955 (as amended by Section 8 of the Safety in Industry Act, 1980 ).”
In the circumstances of that case the court apportioned liability 40% to the plaintiff and 60% to the defendant.
14. Section 13 of the 2005 Act provides for the general duties of employee and persons in control of places of work. Section 13 (1) provides an employee shall, while at work —
“(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,
(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person,
(c) …
(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,
(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,
(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,
(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,
(h) report to his or her employer or to any other appropriate person, as soon as practicable—
(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,
(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or
(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person,
of which he or she is aware.”
At para. 166 of the original judgment, I found that having regard to the reasons given and the findings made that there was a breach of statutory duty on the part of the first, second and third Defendants in failing to comply with the provisions of the 2005 Act with regard to requirements relating to the provision of a safety statement and risk assessment under the Act and with regard to the duties owed to the Plaintiff under the 2007 Regulations in particular Regulations 33 and 34. In terms of ordinary negligence there were express findings of negligence at paras. 143 and 144. For the purposes of the Civil Liability Act 1961, breaches of statutory duty on the part of the Defendants in this case constitute negligence on their part.
Submissions
15. The Defendants carry the onus of proof to establish, on the balance of probabilities, negligence and breach of statutory duty on the part of the Plaintiff in the sense described by Murray J. in McSweeney v. McCarthy, if there is to be a finding against him on the first issue. It is not intended to summarise the submissions made on behalf of the parties. Suffice it to say that on the evidence and the undisturbed findings of fact the contention advanced on behalf of the Defendant is that the only conclusion the Court could come to is that the several actions of the Plaintiff which resulted in him severing the fingers of his left hand were attributable to a series of deliberate actions which were grossly reckless and constituted a causa causans of the accident.
16. The suggestion advanced on behalf of the Plaintiff that, having rejected his account of the accident the Court could not now make a determination of contributory negligence in the absence of determining how the accident did occur, did not stand up to scrutiny and was without merit factually or at law. On the evidence and the findings made and left undisturbed on appeal there was not, as had been suggested on behalf of the Plaintiff, any element of the Court entering into the realm of speculation for the purposes of trying to establish the reasons for what the Plaintiff did, why he did it or what he was doing it for.
17. The plain facts of the matter were that he came to a machine the operation and purpose of which he was familiar. He had been instructed and trained in the safe use and operation of the machine. He knew the purpose of the machine was to cut metal flats. He knew that the production of flats from the introduction of a length of steel bar was dependent upon and involved a guillotine action about which he had been specifically made aware. He had used and operated the machine under supervision. He had established to Inspector Nicholson his proficiency and knowledge in the safe use and operation of the machine to the point that before using it to cut flats it was not necessary for him to seek the permission of Inspector Nicholson or for that matter any member of staff.
18. When the Plaintiff came to the machine on the afternoon of the accident it was immediately obvious to him, as it was to anyone else who approached it, that the guide-guard had been removed, revealing the blade opening and, in the process, the cropping blade. The Plaintiff knew that the function of the cropping blade was completely dependent upon the operator pressing a foot pedal, that releasing the foot pedal resulted in the cropping action stopping and the blade returning to its rest position. The Plaintiff’s hand was not resting on a steel bar. The back stop was in position, thus avoiding any necessity for him to judge the positioning or distancing of a steel flat in the machine. The Plaintiff’s left hand was palm upwards with the fingers in the path of travel of the cropper blade, a state of affairs visible to the Plaintiff when he pressed the foot pedal which he knew would immediately activate the shear blade.
19. These actions were all carried out in circumstances where he knew from the training and instructions he had received that the machine was only to be used for cutting steel flats. The sauce for the goose was good for the gander. Any alternative cogent explanation for what had happened acceptable to the court was not a sine qua non for a finding of contributory negligence, particularly when regard was had to the evidence before it and the facts as found. The Court was entitled to infer that whatever the Plaintiff was doing in using the machine, he knew that what he was doing was extremely dangerous and that it exposed him to a risk of serious injury which, in the event, is exactly what happened. Mr. O’Scanaill also addressed the Court at some length on the apportionment of liability and drew the Court’s attention to a number of authorities on the approach to be taken by the Court in relation to that exercise. He submitted that in the particular circumstances of the case, the blameworthiness of the Plaintiff far outstripped any blameworthiness that could be attributable to the Defendant and that this was a case where an apportionment of 85 to 90% against the Plaintiff was warranted.
20. On behalf of the Plaintiff, Mr. Keane contended that having rejected the Plaintiff’s account of the accident, it was not open to the Court to speculate on how else the accident may have occurred. This was not a case in which the Defendants had advanced an alternative version of the accident; rather, the case was one where the only explanation or version of the accident was the one advanced by the Plaintiff and that had been expressly rejected for the reasons set out in the judgment of the Court. To find contributory negligence in these circumstances would be to find contributory negligence in abstracto, a conclusion which was legally impermissible. The Court was, so to speak, hoisted on the petard of its own judgment, and could not resile from the consequences of the outcome when it came to address the issues. It had not been pleaded nor had it been put, at least in a full-frontal way to the Plaintiff, that what he was doing amounted, in effect, to a deliberate act of self-harm no doubt because the Defendants would not have been in a position to establish such a case. If pleaded but they were unsuccessful it would have exposed the Defendants to a claim for aggravated damages on the grounds that such a plea amounted to an allegation that the Plaintiff’s claim was a fraud.
21. It was argued the Court of Appeal had found that it was the actions of the Defendants and not those of the Plaintiff which were the causa causans of the accident, in other words, that it was the Defendants’ negligence and breach of statutory duty and not that of the Plaintiff which was responsible for the occurrence of the accident. Mr. Keane drew the Court’s attention to various extracts from the judgment of this Court concerning the findings of fact and the conclusion reached thereon that the Defendants were guilty of negligence and were in breach of statutory duty. The Court was also brought through the judgment of Edwards J. in relation to this aspect of the case.
22. Quite apart from these submissions it was argued on behalf of the Plaintiff that in approaching the issue of contributory negligence, particularly in the context of a breach of statutory duty, that the circumstances were to be viewed not from the perspective of the ordinary reasonable person; rather, what had to be borne in mind were the life circumstances in which the Plaintiff found himself, his circumstances at birth, his social circumstances, the fact that the Court had already acknowledged he was a highly disadvantaged member of society and had grown up and was involved in criminal activity, was a person who left school at an early age, lived in very deprived circumstances, was illiterate, and was innumerate. These were factors which had to be taken into the balance.
23. Referring the Court to McWhinney v. Cork City Council[2018] IEHC 472 and McSweeney v. McCarthy, which depended on its own facts, it was not enough to show an error of judgment or inadvertence on the part of the Plaintiff if contributory negligence was to be established in circumstances where a Defendant is found to be in breach of statutory duty. Mr. Keane distinguished the facts of McSweeney v. McCarthy from the facts in this case, drawing the Court’s attention to the fact that in that case, the actions or omissions of the Plaintiff had been admitted having been negligent. In the absence of a satisfactory explanation as to how and why the accident occurred there was no evidence or finding of fact which would permit the Court to find the Plaintiff guilty of contributory negligence and breach of statutory duty.
24. Even if the Defendants could get over that barrier, they were faced with the difficulty of establishing that the injuries which befell the Plaintiff were other than as a result of an error of judgement or inadvertence absent which there could be no finding against him on the first issue. When regard was had to the majority judgements of the Court of Appeal a finding that the Plaintiff guilty of contributory negligence and an apportionment of fault to the extent of 85 to 90% against the Plaintiff would arguably be a perverse; the higher the apportionment the stronger the argument would be. The perversity of such a conclusion would arise from what in effect would amount to a reversal of the decision of the Court of Appeal that the causa causans of the accident lay with the Defendants.
25. In addressing these issues Mr. Keane urged the Court to have regard to the spirit as well as the letter of the majority judgments in the Court of Appeal. He submitted that it could be inferred from the judgment of Edwards J. in particular that if there were to be a finding of contributory negligence, such should be less than 50%. since in the absence of evidence to establish a finding that the Plaintiff was subjectively reckless any act or omission on his part was a causa sine qua non and not the causa causans of the accident. I understood this submission to be that the only causa causans of the accident was the negligence and breach of statutory found against the Defendants. If the Court was against the Plaintiff on the submission in relation to a finding of contributory negligence, Mr. Keane argued that any apportionment on the second issue should be limited to a maximum of 20%. If, having regard to all the circumstances of the case it was not possible for the Court to establish different degrees of fault, s. 34 (1) (a) provided for the apportionment of liability equally.
26. Finally, Mr. Keane also advanced a claim for aggravated damages because of the conduct of the Defendants during the trial and what amounted to a continuation of that conduct by the Defendants in the submissions made on the first and second issue by Mr. O’Scanaill. I shall deal with that matter presently but returning to the present argument Mr. Keane drew the attention of the Court to the inescapable fact that it was the Defendants who were in control of the workshop, of the system of work therein and of the Geka cropping machine. It was they, who failed to make the Plaintiff aware that the machine had been taken out of use and had left it in a condition constituted a very serious danger to anyone who attempted to use it unawares.
Decision
27. I have adverted earlier to the practice in the Court of Appeal of limiting the transcripts in cases where oral evidence was given over more than four days to an agreed book of extracts of the transcript of the evidence relevant to the issues in the appeal. It is not apparent from any of the judgments delivered in the court precisely what extracts were before the judges who heard the appeal. However, and having had the benefit of the entire transcripts of the evidence at the time when the principal judgment was delivered and having reread these insofar as they are relevant to the first and second issues I am satisfied, with respect to the learned judge, that there is no factual basis to the reference of an absence of evidence to establish on the balance of probabilities that the Plaintiff was subjectively reckless.
28. Whatever the explanation, the transcripts of the Plaintiff’s own evidence, not to mention the evidence of the engineers and the photographic evidence is replete with evidence to support the conclusion that the behaviour of the Plaintiff was itself a causa causans of the accident. This conclusion has very significant implications for the submissions advanced on behalf of the Plaintiff by Mr. Keane. While I accept the submission that it is not appropriate for the Court to venture into the realm of speculation in circumstances where it has rejected the only explanation advanced in the case for the accident, I do not accept for the reasons advanced by him that it follows there cannot be a finding of contributory negligence against the Plaintiff, quite the reverse.
29. In that regard I accept the submissions made on behalf of the Defendants by Mr. O’Scanaill, particularly in light of the observations made in relation to the evidence which, it would appear, was not part of the extracts from the transcript made available for the purposes of the appeal. I consider it pertinent to mention this because had the relevant transcripts been available to be read by my learned colleagues I have absolutely no doubt, having again had the benefit of reading the transcripts, that the reference to the absence of such evidence would not have been made, especially by such a learned and experienced judge as Edwards J.
Conclusion; Contributory Negligence
30. In coming to the conclusion that there was contributory negligence on the part of the Plaintiff I am mindful of the submission made to the Court by Mr. Keane concerning the social and economic background and circumstances not to mention the disadvantages experienced by the Plaintiff in life which were, if I may be permitted to say so, appropriately recognised by the Court in its principal judgment. That being said, the Court has found that although this unfortunate individual’s life was blighted on so many levels, including addiction to illicit drugs, he was able to hold down a job before he committed the crime which ultimately sent him to Wheatfield after conviction. He was able to drive a car and once in prison, apart from trying to get his life back on some sort of normal track, he volunteered for training under Mr. Nicholson so that he could acquire a marketable skill he could deploy once he had served his sentence and was released back out into society.
31. I had no impression that the Plaintiff took this course of action involuntarily. Similarly, although not entirely successful in weaning himself off all illicit substances, he showed a willingness and determination to try and rid himself of his affliction by going on the treatment programme offered to him and other prisoners at the prison. I was particularly impressed by the evidence of Dr. Scully, which I have re-read for the purposes of this judgment. He was aware of the training facilities and programmes offered and available to inmates in the prison workshop and that some of the tasks involved operating dangerous machinery and the use of potentially dangerous materials, such as welding torches. If he had had any concerns about the suitability or capacity of a prisoner to engage in any of these activities, particularly from a safety perspective, he would have intervened. He had no concerns for the suitability or safety of the Plaintiff throughout the time he was undergoing his training or subsequently up to the time of the accident.
32. It has to be remembered that a very considerable period of time elapsed between the occurrence of the accident and when the action ultimately first came on for hearing in December 2015 and trundled on into the following year. All other factors being considered, it would hardly be surprising that the Plaintiff exhibited memory difficulties by the time he came to give evidence. What is material, however, is the Plaintiff’s condition on the day of the accident. The Court has already found that his methadone treatment or a combination thereof with illicit substances played no causative role in the occurrence of the accident and that had he been exhibiting any signs of being unwell or of being in any way affected by his medication and/or use of illegal substances he would not have been permitted to enter the workshop. Subjectively, therefore, the Plaintiff was considered fit to come into a workshop in which he was entitled to undertake unsupervised welding work and, whether or not he had been assigned to sweeping/cleaning duties on that afternoon, was entitled to use the GEKA cropping machine without permission or supervision.
33. Lest it should be necessary to do so, the Court confirms as findings of fact the several matters cited earlier herein and incorporated in the submissions made on behalf of the Defendants. Accordingly, upon those findings I am satisfied and the Court finds that the Plaintiff’s actions in approaching a machine the safe use, operation and purpose of which he had been trained and instructed, that he knew involved a guillotining mechanism, that as a result of the removal of the safety guide guard the cropping blade was visible to him, that it operated by pressing a foot pedal and that he could see his hand upturned in the path of the cropping blade while not resting on a steel flat when he pressed the foot pedal, constituted subjective recklessness and disregard for his own safety; his actions were sheer folly. That he subjectively ran a risk of causing himself a very serious injury when he pressed the machine pedal in beyond question. In the circumstances the Court finds that the Plaintiff was guilty of contributory negligence and was in breach of statutory duty contrary to the provisions of s. 13 of the 2005 Act.
Apportionment of Fault
34. The next issue which falls for determination is the apportionment of fault. This arises in circumstances where it is proved that the damage suffered by the Plaintiff was caused partly by the Plaintiff’s negligence or want of care and partly by the wrong of the defendant. Section 34 (1) of the 1961 Act provides that in those circumstances, damages recoverable in respect of the wrong shall be reduced by such amount as the Court thinks just and equitable having regard to the “… degrees of fault of the plaintiff and the defendant” , subject to the provisos set out in sub. paras. a, b and c of the subsection. Fault is not to be equated with the potency of the causative factors, whether they be acts or omissions, moving from the plaintiff and defendant; rather, fault in this context is equated to blameworthiness of the parties’ respective contributions to the loss and damage. Particularly having regard to the submissions made on behalf of the Plaintiff the measurement of fault is not carried out by purely subjective standards but by objective standards. As observed by Walsh J. in O’Sullivan v. Dwyer(1971) I.R. 275 at 286
“The degree of incapacity or ignorance peculiar to a particular person is not to be the basis of measuring the blameworthiness of that person. Blameworthiness is to be measured against a degree of capacity or knowledge which such a person ought to have had if he were an ordinary reasonable person…Fault or blame is to be measured against the standard of conduct required of the ordinary reasonable man and the class or category to which the party whose fault is to be measured belongs…”
This passage was quoted with approval by Kenny J. in Carroll v. Clare County Council[1975] I.R. 221 at 226-227. See also McCord v. Electricity Supply Board[1980] ILRM 153; Iarnrod Eireann v. Ireland[1996] 2 ILRM 500; Hackett v. Calla Associates Ltd[2004] IEHC 336; Hussey v. Twomey[2009] IESC 1; Moran v. Fogarty[2009] IESC 55; Gallagher v. McGeady[2013] IEHC 100; Shaughnessy v. Nohilly & Anor[2016] IEHC 767 at para. 135 and Kelly v. Meegan[2020] IEHC 698.
35. The percentage reduction of the damages achieved by this process must be just and equitable. The percentages of fault arrived at in the authorities cited on apportionment are illustrative only since the result in was clearly grounded in the particular circumstances of the case to which the relevant principles have been applied. Approaching the task in the way mandated, I find myself unable to accept the submissions of either party with regard to the apportionment which is appropriate. While it is clear that the failure to lock out the machine, ensure the guard was in place and/or that officer Maher remained on station was undoubtedly blameworthy behaviour by omission, however it was also clear that the positive actions of the Plaintiff in operating machine at a time when he could see that his upturned hand was in the path of travel of the cropping blade was blameworthy by commission.
Conclusion; Apportionment of Fault
36. On my view of the evidence and the accident circumstances the Plaintiff’s behaviour while to a significant degree more blameworthy than the blameworthiness of the Defendants was not so blameworthy as to warrant visiting upon him the degrees of fault suggested by the Defendants at 85 to 90%. In my judgment the justice of the case is fairly met by an apportionment of 70% against the Plaintiff and 30% against the Defendants. It follows that the damages to which the Plaintiff is entitled will be reduced accordingly.
Quantum
37. The Plaintiff suffered horrific injuries as a result of the accident injuries which he was primarily responsible for inflicting on himself. The parties were invited to and made submissions to the Court on the level or ranges of general damages in which they considered damages ought to be assessed. Mr. Keane suggested a range of €250,000 to €350,000. He considered a reasonable value in respect of the Plaintiff’s physical injuries to be €275,000 and for the psychological/psychiatric injuries a sum of €50,000, making in aggregate a sum of €325,000. Mr. O’Scanaill, on the other hand, submitted that the appropriate range for general damages on full liability was €150,000 to €175,000. As a result of the accident the Plaintiff sustained amputations to the middle phalanges of the index, middle and ring fingers and through the distal phalanx of the little finger of his left non-dominant hand. By any stretch of the imagination these were very serious injuries.
38. The Plaintiff was brought by ambulance to Tallaght Hospital from where he was transferred to the plastic surgery unit at St. James’ Hospital. He was taken to theatre under a general anaesthetic and underwent micro surgical re-implantation of the index, middle and ring fingers of the left hand. The distal amputated part of the little finger was not salvageable and he underwent a primary terminalisation of the left little finger. Unfortunately, the re-implanted fingers gradually lost their blood supply and died over a number of days. The Plaintiff was taken back to theatre on the 2nd December 2008 and had the failed re-implanted segments of index, middle and ring fingers removed and the amputation stumps formally terminalized. In March 2009 the amputation stumps had healed, although they were still tender and uncomfortable.
39. The Plaintiff was examined and medically reported on in relation to his physical injuries by Mr. J. A. Orr, Consultant Plastic Surgeon. He prepared reports dated the 12th May 2009, and 18th November 2013. He gave evidence. The severed parts of the fingers had been cleanly cut. The amputated digits had been recovered, packaged, and sent with the Plaintiff to hospital. Medical assessment was that there was a possibility of saving the fingers, hence the initial surgery. The injuries suffered by the Plaintiff would have been extremely painful. Mr. Orr explained that any information coming back from the frayed ends of the nerves would be interpreted at a deep level within the brain and within the spinal cord as pain which was difficult to localise. He considered that this sensation would have been particularly distressing though the massaging as a therapy advised and undertaken by the Plaintiff helped to desensitise the area.
40. Mr. Orr described the Plaintiff as having received a severe irreparable mutilating injury to his left hand which in the long term would leave the Plaintiff with a permanently mutilated appearance together with a very considerable loss of function and the likelihood of chronic pain and discomfort in the amputation stumps. Because the Plaintiff was left with very short stumps of the fingers of the index, middle and ring fingers and with no joint beyond his little metacarpal knuckle he is left with a particular disability in terms of fine manipulation. Mr. Orr described what remained of his fingers as being functionally very limited, for example tying shoelaces, doing up buttons and things like that or any form of fine manipulation such as screwing, unscrewing, or putting on and tightening nuts and bolts would be very difficult. He thought that even when it came to more crude functions, such as gripping a handle on a brush or the handle of a shovel or something like that there would also be limitations because there is no capacity to curve fingers around the handle. Unskilled vocational work not to mention the work for which he had been trained would be problematic.
41. With regard to possible reconstructive surgery Mr. Orr referred the Plaintiff thought the Plaintiff might benefit from assessment by Dr. Eadie, a specialist in microsurgical reconstruction of the hand, with a view to a microsurgical transfer or part of a toe to the index and middle finger stumps. Mr. Orr explained that this kind of reconstruction requires a highly motivated patient who is able to completely give up smoking and to cooperate with all aspects of surgery and rehabilitation. As the Plaintiff was a smoker and would apparently have problems in complying with the regime required to prepare himself for such surgery as well as with the required rehabilitation programme, he considered that this option was at best a possibility. He explained that this surgery was generally offered to someone who had a very specific need for a particular finger. He gave as an example, a professional musician. This option also means giving up a toe. In the event he thought it was unlikely that reconstruction surgery of this type was a viable option for the Plaintiff.
42. Mr Orr had expressed a somewhat more optimistic opinion in his initial report; however, he rode back from that quite considerably when giving evidence. The Plaintiff was likely to experience a continuing clumsiness in the use of his left hand for the foreseeable future. The Plaintiff’s many complaints were, in his opinion, entirely consistent with the injury and the physical findings on examination. The impression I formed of Mr Orr’s evidence was that given his socio-economic background and circumstances the Plaintiff’s injuries were going to result in a permanent functional disability that will have significant vocational implications for him. He expects the Plaintiff to have ongoing cold intolerance and painful symptomology if, for example, he inadvertently knocked the stumps of his finger or the stump of a finger against something.
43. With regard to alternative treatment options, Mr. Orr did not think that prosthetics were a realistic option. Even with motivated patients, the majority of people with this kind of injury have a tendency to stop using the prosthetics. There are various problems associated with that kind of treatment. I took from this evidence that fitting the Plaintiff with prosthetic fingers was not a realistic option. Having had an opportunity to view the Plaintiff’s left hand, it was abundantly clear that on return to society, all other things being equal, the Plaintiff was going to be left with a severe physical disability which would have vocational implications. His capacity to undertake vocational work in the field for which he was being trained in the prison workshops is significantly reduced if not altogether closed to him.
44. Evidence was also given by Dr. Sean O’Domhnaill, Consultant Psychiatrist and Psychotherapist. He prepared a report for the assistance of the Court and also gave evidence. In addition to the sequelae of his physical injuries, his opinion was that the Plaintiff had suffered what he described as psychological pain and suffering and that he would need treatment for what he described as the Plaintiff’s “traumatic psychological condition, meeting the criteria for a diagnosis of posttraumatic stress disorder ”. He was at pains to explain, however, that this condition was masked to a considerable degree by the use of prescribed and elicit medication, an issue that would also need to be addressed.
Damages for ‘Pain and Suffering’
45. The third issue which the Court must address is the assessment of general damages for what is generally referred to as ‘pain and suffering’ to date and into the future. O’Higgins CJ. commenting on the purpose of general damages in Sinnott v. Quinnsworth[1984] ILRM 523 stated at 531:
“General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the Plaintiff”.
In carrying out an assessment of general damages for personal injuries the Court is required to apply well settled principles of law. The award must be reasonable and fair to both parties; the amount thereof must be proportionate to and commensurate with the injuries sustained to date of assessment and, where relevant, for the consequences of the injuries likely to be sustained in the future. In addition, the Court is required by virtue of s. 22 of the Civil Liability in Courts Act, 2004 to have regard to the Book of Quantum.
46. The meaning of “pain and suffering” in the context of general damages has been the subject of discussion in authoritative academic legal works on the law of tort and the law of damages as well as in jurisprudence on the subject. For my part, the most comprehensive and yet succinct definition is that offered by McCarthy J. in Reddy v. Bates[1983] ILRM 197 at p. 205 where he stated that general damages:
“…are frequently stated to be for pain and suffering; they would be better described as compensation in money terms for the damage, past and future sustained to the plaintiff’s amenity of life in all its aspects, actual pain and suffering, both physical and mental, both private to the plaintiff and in the plaintiff’s relationships with family, with friends, in working and social life and in lost opportunity”
47. That the Plaintiff has suffered a serious and permanent injury to his left hand is not in issue. The Book of Quantum approaches the ranges of damages for arm or hand amputations by expressing a sum up to a certain limit for the loss of single digits. Where multiple digits are involved the book states:
“There are several factors that need to be considered when calculating the assessment for loss of multiple digits. Such factors would include, which digits and how many digits, dominant hand, appearance, impact on hand function, age, gender and occupation impacts.”
The different facets of life which may be affected as a result of a tortious act covered within this meaning of general damages for ‘pain and suffering’ appears to me to be particularly apposite in the Plaintiff’s case.
48. He has been left with a lifelong cosmetic deformity and functional disability which can fairly be described as profound. It is a source of understandable psychological distress and upset not to mention a constant reminder of a truly horrific accident. I accept the medical evidence adduced in respect of the injuries on behalf of the Plaintiff and am satisfied, and the Court finds that the option of further surgery or fitting the Plaintiff with prosthetics is not a reality for him. Criticism for failing to mitigate his loss by giving up his addiction and submitting to the possibility of further surgery does not, in my judgment, withstand scrutiny. As I understood the evidence of Mr. Orr this option was in any event more of a possibility than a probability; what is more it would involve the Plaintiff giving up a toe which would also have to be taken into account in assessing damages. As it is, the Court has approached the task on the premise that such treatment and surgery is unlikely to be carried out.
49. In assessing damages the Court does not add up figures considered appropriate within the ranges in the Book of Quantum given for each digit. The cumulative effect of the loss of multiple digits to the extent suffered by the Plaintiff has a far greater significance and impact than, for example, the loss of one or two digits, leaving relatively good hand function and ability with adaptation to carry out fine manipulative tasks. Added to all of this, Mr. Orr expressed the opinion that if the Plaintiff accidentally clips his hand off something he will experience a very unpleasant electrical type of pain and that this is a sequela which he thought was likely to persist indefinitely.
Conclusion
50. Having regard to the Plaintiff’s evidence as to how he feels about his injuries, his experience of pain, his description of the limitations of hand function and the medical evidence, in particular, the evidence of Mr. Orr, I am satisfied, and the Court finds that a fair and reasonable sum to compensate the Plaintiff for past and future pain and suffering proportionate to and commensurate with his injuries is €275,000.
Claim for Aggravated Damages
51. An application was made on behalf of the Plaintiff for aggravated damages which was tied into an application made by the Defendant at the conclusion of the trial to have the Plaintiff’s claim dismissed pursuant to the provisions of s. 26 of the Civil Liability and Courts Act, 2004 which Mr. Keane characterised as an accusation, in effect, that the Plaintiff had committed perjury. It was a dreadful accusation to make against the Plaintiff and, in Mr. Keane’s submission, was utterly groundless, particularly in circumstances where the Court found the plaintiff to be an honest witness who had not intentionally set out to mislead the experts to whom he spoke or, for that matter, the Court. My attention was drawn to the transcript of the evidence relating to the application and to an interjection which I made in response to an observation that the Act made no provision for a penalty to be visited on a Defendant for making an inappropriate application under s. 26 in respect of which I “aggravated damages”.
52. It was submitted that this was a remedy to which the Plaintiff should now be entitled, particularly having regard to the findings of fact which the Court made with regard to Inspector Nicholson and Officer Maher and the repetition in submissions on the resumed hearing that the Plaintiff had essentially made up evidence concerning the absence of the backstop to explain away how his hand came to be in the path of the cropping blades, this not to mention the inadequacy of the discovery which was made by the Defendants. The attention of the Court was drawn to the judgment of Cross J. in Keating v. Mulligan[2020] IEHC 47 where €10,000 was awarded for aggravated damages by the trial judge in circumstances where he found that the s. 26 application had been inappropriate.
53. I pause here to mention that in the course of submissions I had raised a query with counsel as to whether, if an award of aggravated damages was appropriate, any award would be affected by an apportionment of fault if made. I accept Mr. Keane’s submission that having regard to the provisions of s. 34 (1) the apportionment envisaged by that provision in circumstances where liability has been found to rest with the Plaintiff and with the Defendant the apportionment was confined to damages recoverable in respect of the wrong and does not apply to aggravated damages.
54. Mr. O’Scanaill accepted that the s. 26 application did not, as he put it, find favour with me; however, he submitted that a significant number of important facts asserted by the Plaintiff had been shown to be incorrect as a result of the cross examination. The depiction in the principal judgment that the Defendant had adopted an approach to the defence of the action as a “circling of the wagons” had to be seen in the context of the statements made and the evidence given by officers Maher and Nicholson as opposed to how the whole case had been run.
55. The approach which had been taken to the evidence of officers Maher and Nicholson was one of caution and what weight was to be attached to the evidence. Mr. O’Scanaill submitted that there was no authority for the proposition that if a Defendant deployed the provisions of s. 26 by making an unsuccessful application, aggravated damages must follow. That was a preposterous suggestion and was certainly not what the Oireachtas intended when the provision was enacted. Moreover, the submissions offered in the course of the costs application had to be seen in that context and not blurred in the way suggested by the Plaintiff.
56. I have read and considered the judgment of Cross J. in Keating v. Mulligan regarding the inappropriate use of s. 26 and dicta to similar effect made by him in Lackey v. Kavanagh[2013] IEHC 341. I find myself in complete agreement with his Lordship. Section 26 of the 2004 Act was not enacted to provide defendants with an additional weapon in the armoury which a Defendant was entitled to deploy in defence of a claim for tactical or other reasons not grounded in evidence or information available at the time sufficient to found the reasonable belief that the plaintiff had or had caused evidence /information to be given which he or she knew to be false and/or misleading in material respect.
57. While the Oireachtas made no provision for an award of aggravated damages to be made to a Plaintiff in circumstances where a Defendant had made an unjustified and inappropriate application pursuant to s. 26, I am satisfied that the Court enjoys an inherent jurisdiction to make such an award where in the circumstances of the case the interests of justice so require. I have reread the transcript in relation to the initial application, and the application regarding costs. I am also mindful that in the course of his submissions Mr. O’Scanaill offered an apology if anything he had said was construed or had been construed in his submissions on the subject issues as a charge against the plaintiff; none such was intended. Having reread his submissions I am satisfied his remarks should not be construed in a way and associated with other matters in respect of which the original application under s. 26 had been moved.
Conclusion
58. I can well understand why Mr. Keane considered it appropriate to make an application for aggravated damages; however, in all the circumstances I consider that at the time it was not unreasonable on the part of the Defendants to move such an application. Applying a subjective test, the onus of proof on a defendant to establish on the balance of probabilities that a plaintiff gave or caused to be given information and/or evidence which he or she knew to be false and/or misleading in any material respect is a heavy one, and not without good reason given the mandatory nature of the consequences which are to follow in the event that the bar is met; in this instance I am satisfied that it was not. The original application was essentially dismissed on the merits, accordingly, and for these reasons the application for aggravated damages is refused.
Ruling
59. There being no claim for special damages the Court will enter judgment in favour of the plaintiff for the amount assessed in respect of general damages less 70%. And the Court will so order.