General Damages 2008-2013
Cases
Doyle -v- E.S.B.
[2008] IEHC 88
Judgment by: Quirke J.
Status of Judgment: Approved
Neutral Citation Number: [2008] IEHC 88
THE HIGH COURT
JUDGMENT 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.
Gordon -v- Louth Motorcycle Racing Club
[2008] IEHC 175 (13 June 2008)
Judgment by: Clark J.
1. This action involves a claim for damages for personal injury sustained by the plaintiff Norman Gordon while a competitor in a motorcycle road race which took place on the 27th June, 1999. The race was one of a series of races which together make up the Motor Cycling Road Race Championship of Ireland. It was organised by the defendants who are experienced road racing organisers and took place on a closed off section of the main Dublin to Belfast road just outside Dundalk in County Louth. The plaintiff suffered injury when his bike lost control and mounted the Ballymascanlan roundabout where he was thrown from the bike hitting his leg against an unguarded kerb on the opposite side of the roundabout.
2. Norman Gordon alleges that his injuries were sustained because of the negligence of the promoters who, in breach of their own rules permitted a support rider confined to riding a 750cc motorcycle to compete on a 1000cc motorcycle. He alleges that this novice road racer did not have the experience to control such a powerful motorcycle and that his lack of experience contributed to his cutting across the plaintiff’s path thus causing the plaintiff to crash. He also alleges that the organisers of the course failed to insulate or otherwise protect the kerb of the left side of the roundabout thus creating an unnecessary risk to competitors in the race at a known and anticipated danger point.
3. All matters were in dispute and the case ran over seven days during which time little was agreed between the parties. It was apparent that all witnesses were deeply and passionately involved in the sport of motorcycle road racing. This passion sometimes coloured the evidence creating confusion and discord where none was necessary. At the end of the day, the evidence of some witnesses was more credible than that of others and was more consistent with the evidence of the plaintiff than with the evidence given by some of the defence witnesses.
4. There was no issue of volenti or of the plaintiff’s entitlement to bring these proceedings and the case was presented as a simple negligence action. An enormous amount of evidence dealt with issues which ultimately were not relevant to the cause of the plaintiff’s injury which was the failure to protect an area of kerbing but dealt rather with whether a support rider should have been permitted to ride a 1000cc bike in an open road race.
The evidence
5. Norman Gordon is a motorcycle enthusiast and has been involved in road racing motorcycles for many years. He comes from outside Ballymena and is now approaching his forty fifth birthday. He is a self employed plasterer running a successful business. He was thirty six years old on the day of the accident which occurred on the 27th June, 1999, and was a holder of a Super A licence which is the highest category of road race licence permitting the holder to compete in all international motor cycle road racing events apart from the Isle of Man TT Race.
6. Up to the date of the accident he had been involved in national road racing as a competitor and had won or been well placed in a number of races. Since his injury he has been unable to compete but has maintained his keen interest in the sport by attending road races and has been a clerk of the course in mid Antrim since 2001. It was apparent in hearing the plaintiff that he is knowledgeable and experienced in how road races are organised, how records are kept and how safety is maintained.
7. The plaintiff accepts that motorcycle road racing is a dangerous sport and accepts that in the year 2000 there were several fatalities among competitors at motorcycle racing events. Joey Dunlop the Irish hero of motor biking and Gary Dynes, both of whom competed in the race in which the plaintiff was injured, died in road races that year. It was accepted that there have been no fatalities on the Ballymascanlan course in the twelve years of its life. The plaintiff’s evidence was that as bikers take enormous risks in organised races it is up to the organisers to engage in safety measures and to identify areas where accidents are likely to occur and to minimise those risks
8. The rules of motor cycle road racing are governed by the Motorcycle Union of Ireland which covers both parts of Ireland. There is an Ulster Centre and a Southern Centre, but the rules and requirements regarding racing are uniform throughout Ireland. It was apparent that there has been a determined effort in recent years to work towards greater safety in the sport of motor bike racing on roads.
9. The plaintiff gave evidence of a joint meeting of both branches held in the Ballymascanlon Hotel in January, 1999 and convened by Ivan Davidson who gave evidence. There were four representatives from the Ulster branch and four from the Southern branch at the meeting where the Road Race Championship for 1999 was discussed. It was agreed and confirmed by minutes kept by Ivan Davidson and produced at the trial, that the limit to the size of bike to be ridden by a class of novice road racers described as “support riders” would be 750cc. This restriction was introduced in an attempt to minimise an alarming number of serious injuries and fatalities sustained by novice road race riders in the previous year. Ivan Davidson and the plaintiff who were present at the meeting believed that the newly introduced rule as to limiting support riders to 750cc applied immediately.
10. Damien Mulleady, the competitor who the plaintiff blamed for causing his accident was discussed at the meeting. He was one of a significant number of riders who were upgraded through the various levels of grades of riders. Specifically he was upgraded to the 750cc class in the clubman short circuit grade.
11. Most motor bike riders begin their competitive riding on closed tarmac circuits on courses which are purpose built and designed for racing and are not open to ordinary traffic. This racing is known as short circuit racing. A clubman is a level of rider in short circuit racing and it was clear from the minutes presented that in the clubman short circuit grade, there were several classes starting with under 200cc and working up to the 750cc class.
12. The next level of racing is on public roads which are closed off for the duration of the road race. Local committees of the Motor Cycle Union of Ireland assess and upgrade short circuit riders to road race riders. To be eligible for road racing the first requirement is a grade A licence. The first class of upgraded riders in road racing is a support class rider. There are many categories of road race confined to specific engine capacity limitations and experience of rider. There are open races where very powerful motor bikes with experienced riders compete and there are support class races. Although the defendant’s case was that Damien Mulleady was a very experienced open road racer, Mr. Mulleady himself did not make the same case and it became clear that although he owned several very powerful bikes, he had very recently commenced road racing as opposed to short circuit racing. He was therefore not an experienced road racer.
13. Much of the case was taken up with conflicting evidence as to whether the ruling at the Ballymascanlon Hotel in relation to support riders was of binding effect before its ratification at the annual congress and what exactly was meant by the term support rider. Mr. Gordon’s interpretation of a support rider is a novice rider in road races. His evidence was that experienced riders are not permitted to ride in support races and support riders are not permitted to ride in open races with bikes bigger than 750cc. In order for a support rider to compete in an open race he has first to be accepted as competent and the holder of an A certificate but because of his limited experience he is confined to the lower cc. motorbike which is still a very powerful bike. A support rider is upgraded to a full open class rider when he has successfully competed in a number of races as support rider and when assessed by the safety committee as competent. This interpretation was disputed.
14. On the day in question, the plaintiff applied to enter the fifth race where the late Gary Dynes and the late Joey Dunlop were the big names in the race. He paid the entrance fee and on the day before the race he and the other entrants engaged in a practice run. Each competitor is given a map of the course which has been prepared and approved by the safety committee before they actually compete. The competitors usually engage in a trial run on the evening or early morning before the race where they observe the straights and turns and observe danger points and also their chosen braking positions.
15. The course outside Dundalk was a long triangular circuit of over 3 miles containing a very large roundabout. On the practice run, the plaintiff observed that the kerbs along the left side of the northern left quadrant of the roundabout were not protected by sandbags or bales. He explained that the roundabout is at the end of a very long straight where the bikes achieve speeds well in excess of 150mph. All motor cycle racers who approach the very sharp bend on entering the roundabout slow down in anticipation and then take up what is known as the racing line in order to round the corner in the shortest distance while maintaining speed and balance. A rider would normally approach the bend from the right of the approaching wide straight banking/cranking or leaning heavily to the left to take the right hand curve and then bank to the right to follow the curve. As riders run close to the apex of the roundabout before taking the racing line, this area is the most dangerous part of the course where accidents are likely to occur.
16. The plaintiff’s evidence was that following the practice run, he with others including the late Gary Dynes, had a discussion with Ray Douglas, one of the clerks of the course charged with safety issues, complaining of the unprotected high kerb on the left side of the roundabout which they believed should be protected. The evidence was that it is normal practice for riders to express any concerns regarding the circuit to officials after the practice runs and that concerns expressed by riders are normally attended to.
17. It was disputed that either the plaintiff or Gary Dynes had made any comment or complaint to the course officers about the kerb. The plaintiff recalled a sharp retort to the effect that they were only complaining because the course was in the South. Mr. Douglas denied any conversation of any kind with the plaintiff before the race although he recalled a conversation with Gary Dynes regarding relocating sand bags at the apex of the roundabout.
18. One of the marshals/ crew chiefs expressed strong views as to whether it would have been appropriate to place sand bags at this kerb and believed that a decision had been taken not to do so as sandbags placed on the kerb would serve as a ramp propelling the rider into the adjacent block wall. It was accepted however that she had no authority to determine the placement of any protective measures on the course. In any event, on the day of the race, the entire left front of the roundabout was protected by sand bags and straw bales but there was no protection added to the left hand kerb.
19. On the day of the Dundalk Road Races, the plaintiff had been watching earlier races and observed Damien Mulleady competing in a support race. Being aware of the motion relating to support riders which had been passed at the meeting held at the Ballymascanlan Hotel in January, he was surprised to see that he was entered for the open race riding a 1000cc motor bike. He expressed these concerns to Ivan Davidson just before the race began. Ivan Davidson who is on the road racing safety and rules committee of the sport had no recollection of this comment although he was of the view that the rule relating to support riders should have applied.
20. The plaintiff’s evidence of the race itself is that he started on the front row of the second group and had completed approximately two thirds of the first lap of the circuit. He had been travelling at high speeds and had slowed down as he was approaching the roundabout. He was about to take up the racing line when a motor bike driven by the support rider Mulleady came up on his left going very fast and overtook him, taking his line. Mulleady was travelling too fast to control the corner and headed towards the roundabout across the plaintiff’s path causing the bikes to touch. The plaintiff was caused to “sit up” and lose his balance. Both bikes struck the kerb of the roundabout where they were thrown off their bikes onto the grass. Mr. Mulleady escaped serious injury but Norman Gordon continued moving at considerable speed across the road hitting his foot against the unprotected kerb on the opposite side, sustaining a very nasty fracture to his knee. He had braked hard to avoid the accident but could do nothing else to prevent it.
21. It was his view that if Mr. Mulleady had been driving a 750cc he might have been better at handling it as a heavy bike is more difficult to control when braking into a corner as gravity will force the bike out on a curve. He also believed that had the kerb been protected the likelihood is that the sandbags would have cushioned his injury.
22. On cross examination it was put to the plaintiff that he was the cause of his own accident as he approached the roundabout at too high a speed and lost control and crashed. His injury in being propelled across the road into the left hand kerb was simply a freak accident. It was further put to him that Damian Mulleady had nothing whatever to do with his accident; that two separate and unrelated accidents had occurred with Mulleady crashing well before the plaintiff; that Mulleady had never overtaken him and was ahead of the plaintiff at all times. It was also put to him that at no time had he made any complaint before this race about Mr. Mulleady or about sand bags although it was admitted that Gary Dynes had made a request relating to the sand bags at the front of the roundabout which were subsequently relocated closer to the racing line.
23. Mr. Michael Molloy B.E. examined the scene of the accident on the 20th November, 2000 when he took measurements and photographs. His understanding of the accident when preparing his report was that the support rider had created the emergency, but the insulation of the kerb would have protected the plaintiff from injury. He measured the height of the kerb in question at around 5 inches. He referred to a document prepared by the Health and safety Authority in the UK first published in 1999 and dealing with safety at motor sports events for employers and organisations. This document seems to apply to what in Ireland are referred to as closed circuit events and may not have had road races in mind when being prepared. Apparently no motor cycling events on the mainland UK take place on a public highway. The North of Ireland and the Isle of Man are the exceptions. The recommendations therefore had limited application to road races although Mr. Molloy’s evidence was that the same principles of safety apply and that it was foreseeable that a competitor whose bike glanced off the roundabout kerb would be thrown against the left hand kerb. Had the kerb been protected by baling or sandbags at the 7 to 10 o’clock position, then the speed of a bike or rider striking that kerb would have been minimised by the cushioning effect of the sandbags.
24. His evidence was that on this particular course with a 300 degree acute bend at the roundabout it was foreseeable that a biker could lose traction and would be drawn by centrifugal force towards the left kerb of the roundabout. He believed that had a proper risk assessment been made, that sandbags would have been placed on the left hand side of the road opposite the roundabout and he personally saw no reason why the kerb would not be protected as the area of highest risk to competitors was at the bends. The sandbagging would have reduced the risk of injury although he allowed that sandbags can have a ramping effect. No engineer was called by the defence to gainsay Mr. Molloy’s testimony.
25. There was much conflicting evidence as to how the accident occurred, where exactly and when it occurred. Photographs taken on the day of the accident show the plaintiff and Mr. Mulleady in the two places where they came to rest but do not assist as to where each party struck the roundabout. They do however place both the plaintiff and Mulleady on the roundabout at the same time.
26. Some witnesses were observers and some were competitors. I believe that competitors travelling at high speeds have their minds on their immediate space and the road in front and with the best intentions can be quite misled as to their impressions of the location of other riders. The uncontroverted evidence was that Mr. Mulleady was travelling too fast to take the corner when he crashed. Mr. Mulleady confirmed this in evidence although he denied causing Mr. Gordon’s crash.
27. I preferred the evidence of the bystander Darren Crawford to that of Nuala McLoughlin or Fergus Guerin. Darren Crawford who was standing at the roundabout observed that Norman Gordon was on the racing line when the race was in its first lap. He was leaned over to take the left hand turn when another motorbike came up on his inside causing Mr. Gordon to sit up and lose control of his bike. His impression was that the other driver was going faster than Mr. Gordon and was overtaking to get the advantage on the racing line which is the quickest way through a corner. His evidence was that there was a five second gap between the two crashes.
28. I reject the evidence of the competitor Fergus Guerin that the plaintiff crashed minutes after Mulleady when he was completing his second lap or that Mulleady was in front of the plaintiff at all times. The photographs taken seconds after the collision show Mr. Mulleady still on the ground being attended to while at the same time the plaintiff is lying on the opposite side of the road holding his leg while his bike is being moved from adjacent shrubbery.
29. I accept the evidence of the marshal/crew chief that the plaintiff was looking over his shoulder and that this caused him to crash. I find that it is very probable that the reason the plaintiff looked over his shoulder was because Mulleady was coming perilously close to him and that this contributed to the crash. I therefore reject the case made by the defence that Mr. Mulleady had nothing to do with the plaintiff’s accident or that Mulleady himself crashed first or that he was always in front of Mr. Gordon. I find that both motor bikes crashed within seconds of each other arising out of Mr. Mulleady’s miscalculations as to the safe speed to enter the roundabout.
30. The next material witnesses were Ivan Davidson and Ray Douglas. Their evidence on the meaning of a support rider and whether a motion passed a committee meeting was of binding effect differed tremendously. Mr. Davidson gave evidence that Damien Mulleady had not yet been upgraded to compete in an open race and he was therefore bound by the new rule. He was aware of Mr. Mulleady’s record from files kept in the Championship Register. It was not recorded that he had ever ridden a 1000cc bike in a road race before. He stressed that he was unaware that Mr. Mulleady was riding a 1000cc bike as he was a late entry.
31. Mr. Ray Douglas is the assistant secretary of the Southern Branch Safety Committee and was Clerk of the course on the days in question. In his view, Mr. Mulleady was perfectly entitled to race on a 1000cc motorbike as the support class rules were not adopted until 26th February, 2000. He explained that an A licence entitles a rider to ride in any race. The word “ novice” is not a term used in motorcycle racing but support rider is the usual term. In his view the concept of a support class was to allow bikers of limited means to compete on less powerful bikes. He said that some people retire as support riders and never move up to the bigger bikes. His testimony on support riders was contradictory on this point. While he agreed that the minutes of the meeting of the 9th January 1999 stated that support competitors were not permitted to enter into any open race on bikes more powerful than 750cc, he disagreed that the rule applied from that date. His view was that support riders continued to be permitted to ride in open road races between January 1999 and February 2001 when the inter centre conference approved the proposal. Other witnesses confirmed his belief that the rule did not apply to competitions unless approved at the annual conference.
32. Mr. Mulleady struck me as an honest witness and pleasant young person who although passionate about motor cycle racing was less defensive than some other witnesses. His evidence confirmed his lack of experience on big bikes and that this was his first open road race on the 1000cc bike. I have little doubt that his lack of experience contributed to his miscalculation of speed made that day. I am satisfied that the incident at the roundabout was caused or contributed by his inexperienced driving. However I was unable to conclude or infer that the fact that he was riding the 1000cc bike was the cause of the accident as his lack of experience coupled with his youth at the time could have caused him to make the very same mistakes as to speed and braking on the slightly less powerful 750cc bike he owned. In the circumstances, I cannot attribute blame to the race organisers for permitting him to enter a race with a bike which was too powerful for a support rider.
33. I was unable to come to any view on the effect of the motion passed at the Ballymascanlon Hotel meeting as there was such conflicting evidence on this point. It would be difficult to accept that an obligation to apply a recognised safety measure passed by the joint road racing committee could be ignored until formally approved in compliance with the organisation’s rules. However, I make no finding on this point.
34. I do not find that the failure to implement the limitation of support riders to 750cc motor bikes in open class races was the reason the plaintiff suffered such serious injury to his left leg. While I accept that motor bike racing is dangerous and accidents occur when even the most experienced of competitors make mistakes, I find that there are certain minimal safety measures which must be taken to protect riders at known danger points. If the high kerb on the left of the roundabout had been sand bagged or insulated in some way, the plaintiff would in all probability have suffered a far less serious injury.
35. I accept the evidence of the engineer Mr. Michael Molloy on this point and find that the kerb opposite the northern right quadrant should have been protected by sandbags or other shock absorbing material. I do not believe that safety measures on a course should be dictated or determined by observations or indeed lack of comment made by entrants following a trial run but rather by conducting a proper risk assessment of hazards and points of danger in an effort to minimise risk of serious injury at those points. I therefore find for the plaintiff.
Injury
36. Norman Gordon suffered a very painful knee injury which required several major operations and reconstruction. Mr. Richard M Nicholas consultant orthopaedic surgeon at the Royal Victoria hospital in Belfast described the injury as “a comminuted intra-articular fracture of the left knee as well as a dislocation of the left knee joint and fracture of both posterior tibial condyles”. He had an open reduction and internal fixation of both sides of the tibia with arthroscopic fixation of the anterior cruciate ligament. He remained in hospital until the 9.7.99 when he returned home in a cast brace which remained on his leg for three months. He has had several further arthroscopic procedures on his knee joint and has attended 88 sessions of intensive physiotherapy over the years. He currently has chondrial degeneration of the lateral and medial tibial plateaux with degeneration of the patello-femoral joint and can expect further degeneration.
37. He was out of work for nine months but was able to continue his plastering business with the help of his brother while he himself took on the role of administrator and manager. His knee remained very swollen for a lengthy period and he had a great deal of pain, instability and lack of movement being mobile only on crutches. With physiotherapy he has regained strength and movement and reduced the swelling but he continues to have restriction of movement and he can no longer work as a plasterer. Considering the severity of his initial injury he has made a fair recovery in that he only has pain on an occasional basis with swelling occasionally. He has greatly reduced the amount of analgesics and anti-inflammatory medication as his symptoms have improved and to minimise side affects to his stomach.
38. He still cannot confidently climb ladders or walk on scaffolding. He cannot squat or walk on uneven ground which are all necessary attributes of a plasterer. His biggest life change is that he cannot engage as a participant in water skiing or mountain biking and most of all he has been unable to continue motorcycle racing. He cannot walk any long distances and he has a more or less constant limp. The knee is frequently stiff and he feels a catching and clicking sensation in the joint. He is susceptible to developing early arthritis in the knee joint. Although his injuries prevent him from working as plasterer, his management skills have ensured that he had no loss of income as he has been able to source jobs and employ a team of plasterers.
39. He struck me as being an extremely motivated person who has done his best to minimise his loss and to make the most of his changed circumstances. He will never be able to return to significant plastering or to sport. He maintains his interest in motorcycle racing and is a member of the All Ireland Road Race organisation and is actively involved in a number of committees relating to the sport.
40. During the hearing it became obvious that there was a serious down turn in the building trade both here and in Northern Ireland. To date he had seen no loss of income although he fears such a loss should the building industry enter a recession and he is forced to seek alternative employment. He maintains a general claim of loss of job opportunity in such a situation.
41. I assess his pain and suffering in the past at €70,000 and €40,000 into the future. There is an agreed sum for special damages in the sum of £7,107.50 sterling. Assessing his loss of job opportunity is more problematic. Had he been a self employed plasterer operating on a solo basis, his damages for loss of wages may well have been large indeed. The reality is that he has been able to manage by employing a large team of plasterers in spite of his disability and has maintained his earnings. He comes from a family with connections in the plastering trade having an uncle and two brothers in the trade. It seems to me that these connections will contribute to his capacity to weather a down turn in the business better than others. He is without doubt unlikely to actually earn a living as a plasterer but his know how and skills in pricing jobs remain intact. In the circumstances, I can do no more than assess his loss of job opportunity at 2 years of earnings as a plasterer balanced against a future life time of work as a taxi driver or a motor cycle factor as suggested by the occupational therapist Ms. Susan Tolan. The evidence was that he paid his plasterers up to £85 a day which comes to just over £22,000 per annum. I will allow the sum of £100 per day which with overtime opportunities amounts to a rounded sum of £30,000 a year before deductions. I have little doubt that the plaintiff’s personality and determination will permit him to succeed at any new career should the need arise and therefore can do no more than award the sum of €50,000 as a fair sum to represent his loss of employment opportunity.
42. The award therefore will be for €160,000 together with the euro equivalent of the sterling sum of £7107.50 together with the costs of this action.
Yun v MIBI and Tao
[2009] IEHC 318, Quirke J.Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009
The plaintiff, Ms. Yang Yun, was born on the 1st May, 1981, and is now twenty-eight years old. On the 9th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.
The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.
In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.
She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.
Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.
Both defendants admit that the road traffic collisions on the 9th May, 2002, which caused the plaintiff’s injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.
No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.
FACTUAL EVIDENCE
The following facts have been established in evidence:
1. The plaintiff was born on the 19th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.
A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1st September, 1997, and the 15th July, 2000,) she attended the school’s College of Technology and achieved an impressive student’s score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.
She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend, Tony Cao Zhi (hereafter “Tony”), to Europe after graduation so that she could learn English and study accountancy.
She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.
She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.
In April, 2002, she enrolled in the English Language Institute on St. Stephen’s Green for a one-year course in English at a cost to her of €2,000.
Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace’s College preparatory to graduation as a Certified Accountant.
She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.
2. On 9th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.
She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.
After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.
On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.
She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.
3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.
She needs assistance walking, (even short distances), because the pain when she walks is severe. She sleeps in pain and with difficulty for short periods. She cannot sit for any lengthy period. She cannot stand for more than ten minutes at a time without pain. She wears a soft brace permanently for twenty-four hours of every day.
She has spasms of neuralgic pain which she describes as “unbearable”. She requires incontinence pads during these spasms. When she suffers a spasm, she is “untouchable” and cannot be helped. She must lie on her bed during the most severe spasms which last for an entire day.
She requires the application of painkilling cream and infrared treatment every morning and every night to help relieve the pain. She takes medication every four hours. This adversely affects her appetite and often causes her to vomit. She eats from a feeding bowl by lying backwards and balancing the bowl upon her chest. If she tries to eat in any other manner, she loses her appetite entirely.
If she wishes to use the bathroom at night, she needs assistance to make that journey. She has constant dreams about the collision. In these dreams she is flung backwards and forwards. These dreams terrify her and make her relive her immediate post-accident pain. She has been unable to return to school to continue her studies.
Before the accident, she telephoned her parents regularly. She lives upon the remittances which they send to her from China. She has not informed her parents about the collision and her injuries because she does not want them to discover her present status. Her injuries are a source of shame for her. Disability carries with it a stigma in her home region in China. If her parents knew of her condition they would be worried and concerned about the life she is now living far away from them. Her father has a fragile heart condition. She is concerned for his health if he learns of her injuries and their consequences for her.
As a consequence of the accident she now has an unsightly swelling or hump in the lower centre of her back which is known as a “gibbous”. Her medical advisers have discussed with her the possibility of her undergoing reconstructive surgery to correct this deformity and to reduce her pain. They have explained to her that the angulation of her back has been adversely affected by her injury. It should be nought degrees. Immediately after the accident it had increased to between thirty degrees and forty degrees. It is presently sixty degrees and is likely to deteriorate further.
The objective of the surgery will be: (a) to correct the unsightly angulation within her spine and to remove the “gibbous” and (b) in particular, to relieve or reduce the level of continuous pain which she now suffers as a consequence of her injury.
She has been told in lay person’s terms that the surgery, if undertaken, will require that she be stretched across a bent table while her back is surgically opened so that metal or titanium rods can be inserted within her spine. Thereafter, the table will be straightened and the spine will straighten with the table.
Having advised her of the risks associated with it, (including a risk of paraplegia which has been calculated at between 1% and 5%), her surgical advisers have recommended that she should undergo the surgery.
She is not willing to do so. She has a consuming fear of paraplegia. One of the reasons for her fear is that physical disability, (and in particular paraplegia), carries with it a special stigma in her home region in China.
Additionally she has been advised that if the surgery is successful, it may not necessarily relieve her pain.
Prior to the accident the plaintiff worked regularly for approximately twenty hours each week as a cleaner in the Jervis Shopping Centre. She had been lawfully entitled to work for twenty hours each week under the terms of her student visa.
MEDICAL EVIDENCE
(A) Physical Injuries
1. Mr. Ashley Poynton, who is a consultant orthopaedic and spinal surgeon, and Mr. Christopher Pidgeon, who is a consultant neurosurgeon were in full agreement on the nature and extent of the plaintiff’s physical injuries.
She has suffered “a devastating spinal injury” which includes a compression fracture of the anterior superior end-plate of the first lumbar vertebra (LV1). Her complaints are entirely consistent with her injury.
X-rays have shown a progressive compressive collapse of the vertebra into a “wedge” shape which has left her with a significant kyphosis. The vertebra has been “squashed” and the compression has been “pretty well total”. In consequence the plaintiff now has a significant curvature of the spine and suffers from chronic low back pain with some thigh numbness, (resulting from nerve route compression).
She has also suffered probable fractures of the transverse processes which are wings at the side of the vertebrae to which muscles are attached. The fractures of the transverse processes have not been as serious as the compression fracture.
There has been slippage of at least one adjoining vertebra (TV12) and narrowing of the LV1/2 disc space with sclerosis (increased bone density) at that level.
Adjacent margins (DV12 and LV1) show signs of the onset of degenerative change. This change was not present in earlier MRI scans and is the direct result of the impact from the road traffic accident.
The X-rays and MRI scans, which Mr. Poynton examined, demonstrated that the fracture has resulted in an injury which has torn through the soft tissues which were the restraining structures in respect of the vertebrae. The result has been what is called a “soft tissue chance injury” which has resulted in progressive compression. This, in turn, has given rise to angulation of the spine. The apex of the angulation is the “gibbus” in her spine at this level and this has been consistent with the injury and its consequences.
At the time when she was injured the severity of the compression fracture at the LV1 level was underestimated by the medical staff responsible for treating her. Accordingly, she did not then receive and has not since received the surgery which she urgently requires.
That surgery, (described in evidence as “formidable”), if undertaken now, is likely to be lengthy and painful and she will require significant rehabilitation after its completion. It carries with it a number of risks including the risk of paraplegia. It also carries with it an increased risk of “second segment disease” immediately below the area affected.
The level of the plaintiff’s injury is at the junction between her abdomen and chest, and in consequence it has caused her significant back pain when she does simple things, (like standing in front of a washbasin, bending, stooping, lifting and undertaking small household chores).
Although she has been able to walk outdoors with some support for up to two hours and should be physically capable of showering while seated, she finds such activities very difficult and is unable to perform them without ongoing constant help and assistance.
Lumbar lordosis in the plaintiff’s spine is the result of compensation for the compression fracture and is the physical cause of the plaintiff’s low back pain.
She complains of frequent constipation. This is consistent with her injury and has resulted from: (a) immobility; (b) pain killing and antidepressant medication; and (c) pressure upon the gastrointestinal system from the affected vertebrae and soft tissue.
If the surgery is performed, she should be able to study and to pursue a career of the type which she had contemplated before the accident.
Mr. Poynton has advised the plaintiff to undergo the surgery but has been required to warn her of the risks associated with the surgery including a risk of paraplegia which he has estimated at between 1% and 5%.
He advised her that where the surgery is performed using spinal cord monitoring, the risk is reduced to 1% or possibly less. He also warned her of other potential risks associated with the surgery including infection, part-paraplegia, and severe bleeding.
The plaintiff’s injury is complicated by the fact that she is concurrently suffering from a profoundly disabling psychological injury which has been directly caused by the road traffic accident and which has remained untreated for more than six years.
When asked to estimate the prospect of the plaintiff undergoing the required surgery and returning to her studies, Mr. Poynton replied: “I would say possibility is more realistic than probability”.
Although he has strongly recommended the surgery to the plaintiff, he believes that it is reasonable for the plaintiff to refuse to accept his advice.
Some of his patients have declined this surgery in similar circumstances. One such patient declined the surgery because she is the mother of three children.
If the plaintiff does not have the surgery, she will continue to have significant pain, her condition may deteriorate and her chances of successfully giving birth will be called into question.
If she does undergo the surgery, pain management will be required after the surgery and she will require considerable ongoing assistance from her boyfriend because an adverse psychological state can impact upon rehabilitation.
The cost of the surgery is estimated at €33,000 for one day. Thereafter, the plaintiff will require inpatient treatment for between one week and one month and further rehabilitation for up to six months.
The surgery, if performed, will result in significant scarring. The length of the incision will be 20 to 30 centimetres. After the surgery, bracing will be required for some three months. A lightweight brace can be used which can be removed at night but causes discomfort.
If she undergoes the surgery, she may still continue to have back pain and this may influence her ability to perform occupations with a physical component such as cleaning, lifting and carrying.
If she does not undergo the surgery, she will require ongoing pain management and approximately three to four hours care every day.
Mr. Pidgeon is in agreement with the findings and views of Mr. Poynton. He further advised the plaintiff as follows:
(a) she should undergo the surgery because, if successful, her posture will be improved and the risk of degeneration reduced;
(b) if the surgery is successful, she will probably be physically capable of greater independence in domestic and other areas, (although the pain is unlikely to be eliminated altogether);
(c) in making her decision, she should take into account the pain and discomfort she is currently suffering;
(d) if the reconstructive surgery is undertaken, and is successful, then she will probably be fit for light work which does not involve heavy lifting or prolonged stooping or bending; and
(e) if she does not undergo the surgery, she will have no realistic employment prospect.
Although, if he were in the plaintiff’s position, he would undergo the surgery, Mr. Pidgeon is of the opinion that the decision in relation to the surgery is a decision which only the plaintiff can make.
(B) Psychiatric/Psychological Injuries
Evidence of the plaintiff’s psychological and psychiatric injuries was adduced by Dr. Paul McQuaid and by Dr. David Shanley who are experienced consultant psychiatrists. They were in agreement in respect of her psychiatric and psychological injuries.
The plaintiff has developed a significant post-traumatic disorder of her mind which is known as mood disorder. It is a verifiable condition. This mood disorder, which is a disabling injury, is a direct consequence of the back injury which the plaintiff sustained in the road traffic accident.
She has needed urgent medical intervention including support and treatment for her mood disorder since she first suffered the injury to her back. She has been mentally depressed, withdrawn, apathetic and nihilistic since then.
In April, 2006, Dr. McQuaid was so concerned about her condition that he urgently requested that his medical findings should be made available to the health authorities so that the plaintiff could be provided with immediate treatment and support. She did not receive that treatment.
When Dr. McQuaid examined the plaintiff on the 10th July, 2007, he found that she had deteriorated. Reporting on that examination, he concluded inter alia that:
“Maggie remains significantly depressed, conflicted, withdrawn, apathetic and nihilistic. Her mood disorder persists in the context of a significant back injury following the road traffic accident with which this report is concerned, now five years ago. Her overall circumstances have worsened and she represents a major challenge, both in terms of surgery and mental health needs.
The undersigned remains very concerned about her and has communicated that concern to her solicitor. It is quite unacceptable that she should be without appropriate general support and specifically, mental health intervention. Were she an Irish citizen, it would be an immediate requirement that she receive mental health intervention, probably admission to an acute psychiatric unit. She is fundamentally conflicted about her situation and helpless to do anything about it. Noteworthy are her depressive symptoms and thoughts of suicide. The prognosis is currently grave.
Lastly, her ability to work in the future is a subject about which it is virtually impossible to give a proper opinion, given her current state of disability and mental disturbance, although increasingly, the prognosis seems poor.”
On the 23rd July, 2008, the plaintiff continued to suffer severe mood disorder. She was very vulnerable and entertained thoughts of suicide. Her background circumstances, including the fact that her parents were so far away in China together with a fear of what might happen should she return to China contributed to her depressive condition.
Although her mood was down and her demeanour troubled, tearful and uncomfortable, she had obtained a clear benefit from treatment which she was then receiving from Dr. David Shanley.
The plaintiff is one of the most severe cases of mood disorder that Dr. McQuaid has encountered in his career. Suicidal ideation is one of the main concerns for psychiatry and the plaintiff is one of the most severe cases associated with that ideation that Dr. McQuaid has encountered. She represents a real risk in this respect.
Persons suffering from psychological illness can often feel pain more intensely by reason of their psychological condition. Dr. McQuaid has never entertained any doubt that the plaintiff’s pain is real.
He believes that she is conflicted by the issue raised by the recommendation of surgery. Part of her recognises that she should have the surgery. Another part of her is frightened of it. He describes her as “stuck” in this conflicted position, unable to make a decision. He believes that this is reasonable, having regard to the circumstances in which she has been placed.
He is of the opinion that very intensive psychiatric treatment over a period of between three and four months and subsequent further psychiatric treatment thereafter may bring her to the point where she will be in a position to make a rational decision in relation to the surgery. A decision to undergo the surgery would be rational.
The psychiatric treatment required would be extensive and expensive and could take a significant period of time.
Dr. Shanley is of the opinion that the plaintiff is profoundly depressed with marked psychomotor retardation. That means that her movements are slowed, her concentration is poor, she has difficulty sleeping, she has lost interest in everything and she has a poor appetite.
These are all classical symptoms of depression and they are fuelled by the fact that she feels she has not lived up to her family’s expectations and is therefore unable to tell them about her injury and her consequent dilemma.
She has cut off all communication with her friends and appears to be trapped in a time warp, unable to move or to make decisions. The severity of her depression distorts her thinking, which, at times, is delusional.
After Dr. Shanley prescribed antidepressant medication and sleeping tablets, there was a slight improvement in her condition and she cried less frequently. However, she remains profoundly depressed, is fatalistic and negative towards her future and refuses to consider the surgery which has been recommended for her.
Dr. Shanley can understand the plaintiff’s decision to refuse surgery. Like Dr. McQuaid, he recommends a very intensive course of inpatient treatment which he estimates will take approximately three months in an institution such as St. Patrick’s Hospital or St. John of God’s Hospital. He estimates that the treatment will cost approximately €550 per day. He points out that because of her difficulties with language, she would need an interpreter during this treatment, (especially during psychotherapy sessions).
He believes that there is no possibility that the plaintiff will undergo the requisite surgery unless she receives this psychiatric treatment. While there is a “prospect” that the psychiatric treatment will be successful in assisting the plaintiff to make a rational decision in relation to the surgery, Dr. Shanley does not describe it as a “good prospect”.
Stating that he would undergo the surgery if he were in her place, he continued: “I am quite certain that Maggie is adamant that she will not have the operation”. When asked, in cross-examination, whether he thought that the surgery was a “probability” or a “possibility”, he replied “possibility”.
RECOMMENDED SURGERY
In seeking to assess the damages to which the plaintiff is entitled, the central question which must be addressed is whether, on the evidence and on the balance of probabilities, the plaintiff will undergo the reconstructive surgery which has been recommended for her.
The plaintiff testified over a period in excess of four days. Although interpretation requirements added considerably to the duration of her evidence, she nonetheless described her injuries and their consequences carefully and in great detail.
Her evidence was consistent with and corroborated by the expert medical evidence which was adduced in these proceedings. It was also consistent with and corroborated by the findings of a private investigator retained by the defendants, who placed the plaintiff under surveillance and recorded her movements on camera without her knowledge on a number of occasions between the 5th February, 2008, and the 20th February, 2008.
During her testimony and at other times while she was present in court the plaintiff appeared to be in constant pain, never smiled and moved slowly and with obvious difficulty.
She became animated only on two occasions: (i) when speaking about her parents in China and (ii) when she was expressing her determination not to subject herself to the reconstructive surgery which her doctors strongly recommend for her.
In every other respect her demeanour appeared withdrawn, depressed, hopeless and joyless. She is now twenty-eight years old.
I found her to be a careful and conscientious witness. I accept that she is, at present, determined not to undergo the recommended surgery.
The question which must be addressed is whether, on the balance of probabilities, she will, in fact, undergo the surgery at some future date.
This court is not competent to answer that question. It must be guided by, and rely upon, the expert medical testimony which has been adduced in respect of that issue.
The expert medical witnesses unanimously agree that it is greatly in the plaintiff’s interests for her to undergo the surgery.
Mr. Poynton and Mr. Pidgeon (quite properly) refuse to try to predict the ultimate decision but stress that, at present, the plaintiff is determined to exercise her undeniable right to decline the surgery.
Mr. Poynton says that it is reasonable for the plaintiff to refuse to accept his recommendation. He was sceptical about the prospect of the plaintiff agreeing to undergo the surgery. He pointed to others amongst his patients who have declined this surgery for reasons not dissimilar to those identified by the plaintiff.
Dr. McQuaid believes that the plaintiff’s refusal to consider surgery has been influenced by her mood disorder. He says that this disorder makes it impossible for her to make a rational decision at present.
He is of the opinion that intensive inpatient psychiatric treatment over a period of three or four months and subsequent additional outpatient psychiatric treatment may bring her to the point where she will be in a position to make a rational decision and, in consequence, to undergo the surgery.
Dr. Shanley agrees that intensive inpatient psychiatric treatment will benefit the plaintiff. However, he says that the prospect of the plaintiff undergoing the surgery after such treatment can only be described as a “possibility” and not a “probability”.
On the evidence there is no prospect of the plaintiff undergoing the surgery within this jurisdiction in the foreseeable future unless she first is prepared to be admitted to St. Patrick’s Psychiatric Institution or to St. John of God’s Psychiatric Hospital in order to undergo a three -month programme of inpatient psychiatric treatment.
She must then be prepared to submit herself to outpatient psychiatric treatment for a further significant period before she will be capable of seriously considering the question of subjecting herself to the recommended surgery.
I am assuming, for the purposes of this issue, that she will be permitted to remain within this jurisdiction during the proposed psychiatric treatment and thereafter in order to consider, (and possibly undergo) the surgery.
For more than six years now, she has lived in confined accommodation within a country which is more than 10,000 miles from her home. During that time she has had little contact with any person other than her boyfriend, Tony, upon whose support she has been totally dependant for every kind of personal care.
She will not enjoy his support during inpatient psychiatric treatment and it is unlikely that she will receive comparable support having regard to language and other communication difficulties. She will still be the same distance from her home.
If the psychiatric treatment is successful, Dr. Shanley believes that the prospect of her undergoing the surgery can be described as a “possibility”.
Dr. McQuaid takes the view that intensive psychiatric treatment, if successful, will enable the plaintiff to make a “rational” decision about the surgery. Dr. Shanley agrees but says that the resulting “rational” decision is unlikely to be positive.
The fact that the expert and other relevant witnesses believe that, faced with the same decision, they would choose to undergo the surgery does not necessarily render irrational a contrary decision by the plaintiff.
The fact that the plaintiff is presently suffering from a mood disorder which affects her capacity to make rational decisions does not mean that a decision made by her (now or later) not to undergo the surgery will necessarily be irrational.
A small number of patients who are unimpaired by any psychiatric or psychological illness or injury have declined this reconstructive surgery for reasons which, to them, were quite rational.
The prospect, however small, of paraplegia clearly terrifies the plaintiff. It appears to have been magnified by a stigma which, apparently, attaches to disability within her home region in China. Her terror of paraplegia is not necessarily irrational. It has been shared by others in this jurisdiction and elsewhere.
I have with regret concluded that, on the evidence and on the balance of probabilities, the plaintiff is unlikely to undergo the reconstructive surgery which has been recommended for her and that she will probably rely upon pain management and care to reduce the effects of her injuries.
I have based that conclusion principally upon the medical evidence adduced in the case. I have also been influenced by the plaintiff’s testimony and by her personal circumstances.
MITIGATION
It is contended on behalf of the defendants that, if the plaintiff refuses to undergo the surgery, she will have failed to take reasonable steps to mitigate her injury and will be seeking to visit upon the defendants a liability for injury, loss and expense which is unreasonable and unnecessary in the circumstances.
The duty which rests upon a claimant to mitigate injury, loss and damage sustained as a result of negligence is well established. It includes a duty to obtain such medical treatment as may reasonably be necessary to reduce the claimant’s pain and suffering and the extent of any loss which he or she may sustain and subsequently seek to recover.
Questions concerning whether or not claimants have acted reasonably in order to mitigate injury and loss are questions of fact for the court – (see Sotiros Shipping Inc. v. Sameiet Solholt [1983] 1 Lloyd’s Rep 605).
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances (see Steele v. Robert George & Co. (1937) Ltd. [1942] A.C. 497, Richardson v. Redpath, Brown & Co. Ltd. [1944] A.C. 62 and Selvanayagam v. University of West Indies [1983] 1 WLR 585).
The medical experts who testified in these proceedings were disappointed by the plaintiff’s refusal to undergo the surgery which they were recommending. However they were unanimous in their view that her refusal was reasonable in the circumstances. No evidence was adduced suggesting otherwise.
It follows that the onus of proving the failure to mitigate has not been discharged in these proceedings.
DAMAGES
The task for this court is to assess the damages to which the plaintiff is entitled to compensate her for the injuries, loss and damage which she has suffered as a result of the defendants’ admitted negligence and breach of duty.
The principle restitutio in integrum applies and the court is required to replace the plaintiff, insofar as money can do so, in the position which she would have occupied if she had not suffered her injury.
What cannot be and is not in dispute is that during the period of more than eight years which has elapsed since the plaintiff suffered her injuries her life has been blighted beyond recognition as a direct result of those injuries.
Furthermore, her future life and prospects have been permanently and irrevocably damaged and her hopes and aspirations for the future are unlikely to be realised.
She is entitled to special damages, (pecuniary damages), to compensate her for: (a) the losses, costs and expenses which she has incurred since the 9th May, 2002, and, (b) the losses, costs and expenses which she will sustain in the future arising from her injury.
She is also entitled to general damages, (non-pecuniary damages), to compensate her for: (a) the injury which she suffered on the 9th May, 2002, and for the near destruction of her life and lifestyle within this country since then and, (b), the pain, suffering, inconvenience, distress and disruption of her life and lifestyle which will occur in the future as a consequence of her injury.
The “cap” on general damages
No sum of money can compensate for what is continuously suffered by a person who has been catastrophically injured.
Injuries which can be categorised as “catastrophic” are too numerous to list but they include quadriplegia, cerebral palsy, hideous deformity resulting from trauma or burns, various types of catastrophic brain injury, combinations of multiple amputations and sensory losses, severe paraplegia, a range of untreatable lung, intestinal and other internal organ injuries and some extreme chronic psychiatric injuries which require permanent inpatient care, medication and, sometimes, restraint.
It is not really possible or desirable to contrast the effects of a particular catastrophic injury with those of another catastrophic injury. However some cases come before the courts where it can be readily recognised that the injury, (or injuries), suffered and their consequences are so grave that the maximum general damages payable should be awarded.
In Sinnott v. Quinnsworth Ltd., Córas Iompar Eireann and Edward Denning [1984] 4 I.L.R.M. 523 the Supreme Court, (O’Higgins CJ.), indicated that, when awarding general damages for catastrophic injuries, the court should bear in mind that: “…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”. (At p. 532).
The court cited with approval the following extract from the judgment of Griffin J. in Reddy v. Bates [1983] I.R. 141:
“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 the 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”. (At p. 148).
In Sinnott, the court (O’Higgins C.J.) explained that, in cases of catastrophic injury where awards have been made which are intended to provide for all loss of earnings, care and medical costs past and future:
“…. what is to be provided for… 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”. (At p. 532).
Condemning the jury’s award of IR£800,000 as lacking “all sense of reality” he continued:
“…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.” (Ibid).
He concluded that:
“…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 IR£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.”
It is, therefore, well settled that, in 1984, the sum of IR£150,000 (€190,000), was the appropriate limit or “cap” on general damages. That finding has been repeatedly accepted by the courts and this court is bound by that acceptance.
Since 1984 the courts have reviewed and reassessed this “cap” from time to time by seeking to apply “contemporary standards and money values” to the accepted 1984 “cap” of IR£150,000 (€190,000). This court has been asked to undertake that exercise in these proceedings.
The court must, therefore, seek to assess general damages at a level broadly equivalent, in today’s values, to the award of IR£150,000 (€190,000) made in 1984.
The High Court (O’Sullivan J.) revisited the issue in McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) referring to intervening awards in the High Courts in excess of IR£150,000, and, in particular, to an award of IR£250,000 made by the High Court (Morris P.) in Kealy v. Minister for Health [1999] 2 I.R. 456.
O’Sullivan J. concluded that:
“… a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Ltd in today’s money would be IR£300,000.” (€380,000), adding that he might be erring “on the side of conservatism”
In Gough v. Neary [2003] 3 IR 92, the Supreme Court (Geoghegan J.) explained in greater detail the principle identified by Griffin J. in Reddy v. Bates. Pointing out that the IR£150,000 “cap” identified in Sinnott v Quinnsworth was to be applied to general damages “in a case of this nature” he explained at p. 133 that:
“…the words that precede that opinion make it perfectly clear that he was talking of a case where all the future needs, etc. of the plaintiff had been covered by special damages”.
He continued at p. 134:
“In my view, there is no compulsory ‘cap’ if there is no ‘omnibus sum’ or, in other words, if the special damages are low. On the other hand that does not mean that the ‘cap’ figure cannot be taken into account in a general way in assessing the appropriate general damages in a non-cap case.”
In M.N v. S.M. [2005] IESC 17, the Supreme Court, (Denham J.) reviewed an award of general damages made by a civil jury to compensate a teenage girl for sexual assault, sexual abuse and rape.
Pointing out that the court, in that case, was hearing an appeal from an award of general damages by a jury in “…what appears to be a new and developing jurisprudence”, Denham J. at p. 474, expressed the view that:
“there should be a rational relationship between awards of damages in personal injuries cases. Thus the level and limitations of awards in general damages in personal injuries actions are informative”.
She referred to different methods of assessment of general damages for personal injuries adopted by some statutory bodies established by the State in recent times including: (i) a system of “weighting” adopted by the Residential Institutions Redress Board, (established in 2002 by the Residential Institutions Redress Act 2002 (Assessment of Redress Regulations 2002), and the “Book of Quantum” which the Personal Injuries Assessment Board, (established in 2003), is statutorily required to maintain by way of “guidelines” for the assessment of appropriate levels of general damages to be awarded in relation to a range of different physical injuries.
Pointing out that ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’ are published and updated by the Judicial Studies Boards of England and Wales and of Northern Ireland and that similar guidelines have been recommended in this jurisdiction by the Committee on Court Practice in its 29th Report, she added at p. 473:
“I am of the view that information on awards of damages given in previous cases and information published by the judiciary benefits a court assessing general damages”.
Identifying the several relevant factors which must be considered by a court hearing an appeal from an award of general damages by a jury, Denham J. explained
“… An award of damages must be proportionate; it must be fair to the plaintiff and to the defendant, it should be proportionate to social conditions, bearing in mind the common good and should also be proportionate within the legal scheme of awards made for other personal injuries”. (At p. 461).
On the evidence in the appeal in M.N. v S.M. she concluded 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”. (At p. 475).
She reduced an award of €600,000 to €350,000.
Referring to the distinction between awards which are solely or largely general damages and awards of general damages where substantial comprehensive special damages have also been awarded, she expressed the view that “the equivalent figure” (in March 2005), to the sum of IR£150,000, (€190,000), awarded in Sinnott v. Quinnsworth was “in excess of €300,000”. (At p. 469).
In the instant case, Ms. Lydon S.C., on behalf of the defendants, relied upon references by O’Higgins C.J. in Sinnott v. Quinnsworth to the need for the courts to consider how awards in such cases impacted upon “the operation of public policy” and the observation of Denham. J. in M.N. v. S.M, that such awards should be “proportionate to social conditions, bearing in mind the common good”. (At p. 461).
In Wells v. Wells [1999] 1 AC 345, the House of Lords identified what is sometimes known as the “100% principle”. Lord Hope,(at para. 390A), explained that:
“…the object of the award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The aim is to award such a sum of money as will amount to no more and, at the same time no less than the net loss.”
However, in Heil v. Rankin [2001] QB 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.
However, life expectancy may be a factor to be taken into account where catastrophic injuries have been suffered. It is an important factor in the calculation of special damages such as care because care will usually be required for the lifetime of the person who is catastrophically injured.
The pain and distress suffered by such persons will also be life long and general damages are intended to provide them with some measure of compensation throughout the entire duration of their pain and distress.
Today’s recessionary economic circumstances should not be visited upon the most vulnerable in society in order to regulate the damages which are intended to compensate them for the whole of the remainder of their lives.
Accordingly, awards of general damages in these cases should take into account historical evidence of economic and social fluctuations over relevant time periods so that consequent adjustments made in the measurement of general damages will be as accurate as possible.
In some cases an award of general damages will have little or no compensatory consequence for a catastrophically injured plaintiff because of the nature of the injury suffered. For instance, a catastrophically injured plaintiff reduced to a permanent vegetative condition without insight is unlikely to benefit from any award of general damages. It will be open to the court to make no award of general damages in such cases.
Although the term “cap” has been used conveniently and repeatedly in this context, the suggested limit on general damages might more accurately be described as a “guide”. Because of constantly changing social and other circumstances and because there are usually exceptions to every seemingly inflexible rule, the courts retain an inherent jurisdiction to award appropriate damages where the interests of justice so require.
The following general principles, therefore, apply to the assessment of general damages where catastrophic injuries have been suffered:
1. 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.
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”.
2. 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.
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.
3. 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.
“Contemporary standards and money values”
In 1984 the Supreme Court in Sinnott v. Quinnsworth condemned the jury’s award of IR£800,000 as “lacking all sense of reality” but did not explain precisely why it should be replaced with an award of IR£150,000 suggesting that:
“. . . ordinary living standards in the country, to the general level of incomes, and to the things on which the plaintiff might reasonably be expected to spend money” were relevant factors to be considered when seeking to identify “contemporary standards and money values”. (At p. 532).
Although it is probably unlikely that the court, in Sinnott sought to predict future economic outlooks and earning levels when fixing the “cap” at IR£150,000 it is, in my opinion, appropriate for this court to consider expert evidence of: (a) our economic and social history between 1984 and 2009 and, (b) future social and economic outlooks when seeking to review the “cap” today.
This court has had the benefit of: (i) expert evidence on this issue from Mr. Moore McDowell, who is a consultant economist with exceptionally wide academic, administrative and public service experience and, (ii) an agreed report on the topic from Professor Philip Ronan Lane who is professor of international macroeconomics at Trinity College Dublin.
I accept Mr. McDowell’s evidence that the two most important factors to be taken into account when seeking to compare and contrast today’s standards and values with those of 1984 must be: (a) inflation, which has substantially eroded the purchasing power of money between 1984 and 2009, and (b) economic growth in the economy, which has caused a substantial improvement in the overall standard of living within this country between 1984 and 2009.
(a) Inflation
I accept Mr. McDowell’s evidence that both the Consumer Price Index (CPI), which is intended to reflect what we consume, and the “Gross Domestic Product Deflator” (hereinafter the GDP Deflator), which is intended to reflect what we produce, are less than perfect measures of inflation.
However, I accept, also, his qualified evidence (and the similarly qualified findings of Professor Lane) that they probably represent a useful means of measuring inflation for many of the purposes required in this case.
The relevant statistical evidence on this issue has been confined to information available (on the CPI) up to 2008 and (on the GDP deflator) up to 2007. It is reproduced hereunder;
Inflation Measures, CPI and GDP Deflator, 1984 = 100
Year CPI Multiplier GDP Deflator Multiplier
1984 100.0 100.0
1987 112.9 113.8
1987 112.9 113.8
1990 123.9 123.0
1993 133.8 133.9
1996 140.6 138.5
2000 157.7 164.7
2001 165.1 173.6
2002 172.8 182.3
2003 178.3 187.4
2004 183.0 191.5
2005 187.2 197.1
2006 195.5 204.0
2007 204.6 2.06 2.06
2008 213.4 2.13 n/a
Based upon that evidence, the equivalent value of the sum of IR£150,000 (€190,000) in 2007 was €391,400, (applying the GDP deflator) and €388,740, (applying the CPI). In 2008 it was €405,460 (applying the CPI).
(b) Economic growth.
I again accept the evidence of Mr. McDowell (and the findings in Professor Lane’s report) that there has been substantial growth in the Irish economy between 1984 and 2009.
Mr. McDowell identified three standard of living indicators which, he believes, can assist the court to identify the: “…ordinary living standard in the country….the general level of incomes, and… the things upon which the plaintiff might reasonably be expected to spend money” between 1984 and 2008.
They are as follows: (i) Gross National Product, (ii) consumption and, (iii) average industrial earnings. The relevant statistical information in relation to those indicators is reproduced below.
Standard of Living Indicators (values in Euro)*
Year GNPper head(€’000, 1984-2007) Multiple1984-2007 Consumption**per head(€’000, 1984-2007) Multiple1984-2007 AverageIndustrial Earnings(€/hour)Multiple1984-2007
1984 5,900 4,200 5.00
1987 7,300 5,100 6.08
1990 9,100 6,200 7.71
1992 9,900 6,700 8.50
1994 11,500 7,800 8.21
1996 14,300 9,000 8.68
2000 23,500 13,600 10.30
2001 25,500 14,700 11.76
2002 27,500 15,900 12.68
2003 30,000 16,900 13.37
2004 31,600 17,700 14.02
2005 33,900 19,100 14.42
2006 37,200 20,400 15.01
2007 39,200 6.9 22,200 5.2 15.47 3.1
(i). Gross National Product
Economic growth is conventionally measured in terms of Gross National Product (GNP). The impact on average living standards is then measured by the change in GNP per head of population.
This indicator suggests that there has been a substantial increase in the overall wealth of Irish society between 1984 and 2007, with GNP per head increasing from 5,900 in 1984 to 39,200 in 2007.
Accordingly, if the increase in the overall wealth of society between 1984 and 2007 is to be used as an appropriate yardstick, then the sum of IR£150,000 (€190,000) has increased in value by a factor of 6.9 between 1984 and 2007, when it was worth €1,311,000.
(ii). Consumption
Household consumption increased from 4,200 in 1984, to 22,200 in 2007.Therefore, using a representative household’s consumption as the yardstick, the sum of IR£150,000 (€190,000) has increased by a multiple of 5.2 between 1984 and 2007, when it was worth €988,000.
(iii). Average industrial earnings
Average industrial earnings have increased from 5.00 in 1984 to 15.47 in 2007. Accordingly, if the appropriate yardstick is the income level per head of population (measured by average industrial earnings), then the sum of IR£150,000 (€190,000) has increased by a multiple of 3.1 between 1984 and 2007, when it was worth €589,000.
Professor Lane, in his report, added a range of further potential bases for calculating the rate of economic growth including indicators based upon: (a) earnings in the manufacturing and private sectors, (b) gross national income per head and, (c) disposable income per head. His findings are reproduced below:
Adjustment Factors 1984 to 2008- €190,000
Basis Factor 2008 Value
CPI 2.15 409,491
Earnings (Manufacturing) 3.34 636,652
Earnings (Private Sector) 3.81 726,077
Gross National Income per head 6.07 1,156,677
Disposable Income per head 5.34 1,016,765
Using those indicators as yardsticks the sum of IR£150,000 (€190,000) would have increased by factors varying between 2.15 and 6.07 between 1984 and 2008, giving the sum 2008 values between €409,491 and €1,156,777.
Present economic circumstances
Mr. McDowell, in evidence, pointed out that the Irish economy is presently in a state of unprecedented recession. He stated that, as of January, 2009, the consensus view of the performance of the economy was that GNP per head would fall by at least 4% and by possibly as much as 8% in 2009. He said that a further contraction of between 1% and 3% is probable for 2010, and a recovery within the economy is unlikely before the end of 2011 although it could be delayed for a further year.
Allowing for that prediction, he believes that it is unlikely that GNP per head will return to 2008 levels before 2014 or 2015. He also estimates that average earnings are certain to fall in the short term and the extent of that fall will depend upon a number of complex factors.
He explained that, whilst the effect of a prolonged recession should have an impact upon the calculation of the “cap” in catastrophic cases, the adjustment to be made should not be large by comparison with an adjustment to take into account social and economic change over a 25 year period. He did not measure the adjustment to be made.
A decline, (or increase), in national economic growth and wealth may be reflected in the level of damages awarded in personal injuries cases. Each case will depend on its particular facts and should be determined on a rational commonsense basis. The overriding consideration should be fairness to all parties.
Damages awarded in catastrophic cases are usually intended to provide compensation for lengthy periods during which domestic and global economic circumstances will inevitably fluctuate. Although the “cap” is subject to periodic review by the courts, each award of general damages is final for the recipient.
I am satisfied on the evidence that, when updating the “cap” on general damages in this case, the court should also make an appropriate adjustment to reflect a present and forthcoming reduction in wealth and living standards which is likely to continue for a period of approximately five years.
Reviewing the “Cap”
I have concluded that inflation between 1984 and 2009, with the consequent erosion in the purchasing power of money, is an important factor which must be considered in seeking to apply today’s standards and money values to the 1984 “cap” on general damages. However, it is not the only factor to be considered.
I also believe that the “cap” should be adjusted to reflect sharp economic growth in the economy between 1984 and 2009 and a resultant significant improvement in living standards during that period.
The following evidence adduced by Mr. Mc Dowell is relevant:
(a) Living standards improved and average earnings increased substantially between 1984 and 2008 whilst the purchasing power of money eroded significantly,
(b) In late 2007, this country entered a recession of such magnitude that it is likely that living standards will deteriorate and average earnings will fall in the period between 2008 and 2015, whilst the purchasing power of money will be greater.
(c) A steep rise in earnings and living standards, followed by a sharp fall in both, is consistent with historical economic fluctuations recorded worldwide over long periods of time.
As a first step the court should apply the appropriate inflation index to the 1984 “cap” in order to identify a figure which is largely independent of other economic circumstances between 1984 and 2009. That requires the application of either the CPI or the GDP deflator.
Based upon the application of the CPI, the equivalent value in 2008 of the 1984 “cap” of IR£150,000 (€190,000) was approximately €400,000.That figure may be slightly downwards biased for reasons identified in evidence. The application of the “GDP deflator” gives a broadly similar result
There was a threefold increase in income level per head of population between 1984 and 2007. Living standards improved by factors varying between 5.2 and 6.9 during the same period. Those factors are relevant to the identification of: “…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” (see Sinnott v Quinnsworth at p. 532).
The “cap” on general damages in 2008 should be calculated against the background of living standards and money values applicable within the community in 2008. On the evidence living standards in 2007 were more than five times better than they had been in 1984. Income levels had increased at a rate approximately 50% greater than inflation during the same period. A downturn commenced in late 2007 or early 2008.
No expert evidence has been adduced which would accommodate a scientifically accurate calculation of an adjustment of the “cap” which, having allowed for inflation, would reflect the significant increases in earning levels and the improvements in living standards which have occurred between 1984 and 2008. Accordingly, I am seeking to achieve that objective on a commonsense basis by making a 25% upward adjustment of the “cap”.
That upward adjustment increases the equivalent value in 2008 of the 1984 “cap” of IR£150,000 (€190,000) from €400,000 to €500,000.
However, a downward adjustment must then be made to reflect the present and forthcoming reduction in wealth and living standards which commenced in early 2008 and is expected to continue for a further period in excess of five years.
The downward adjustment should not be large for the reasons outlined by Mr. McDowell and also because, on the evidence, it is likely that living standards, after a sharp decline in 2009, will gradually improve before returning to their 2008 levels by 2014 or 2015. I would measure the downwards adjustment at 10%.
That further adjustment reduces the present equivalent value of the 1984 “cap” of IR£150,000 (€190,000) to €450,000.
Proportionality
As I have indicated earlier, there should 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 and other bodies established by the State to award general damages for particular categories of injuries.
(a) Relevant Court Awards
On the 26th July, 2001, O’Sullivan J. concluded in the case of McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) that:
“a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Limited in today’s money would be IR£300,000” (€380,000) adding that he might be erring “on the side of conservatism”.
In March, 2005, Denham J. in M.N. v. S.N. reduced a jury award of €600,000 to €350,000 to compensate a teenage girl for sexual assault, sexual abuse and rape noting that €350,000 was “at the higher end of the range of awards of general damages in personal injury actions generally”.
A present equivalent “cap” of €450,000 is not inconsistent with those, or indeed most recent authorities.
(b) Statutory bodies
Personal Injuries Assessment Board
When assessing damages in personal injuries cases the courts are required by s. 22 (1) of the Civil Liability and Courts Act 2004 to have regard to the ‘Book of Quantum’ (described as a “ guideline of injuries and related values”), which was prepared and published by the Personal Injuries Assessment Board.
The ‘Book of Quantum’ in June, 2004, recommended awards of “up to €300,000” to compensate for ‘spinal cord injuries’ identified as “quadriplegia” and “paraplegia”, noting that:
“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, and (d) age and life expectancy”.
Three years earlier, in July, 2001, O’Sullivan J. in McEneaney, had assessed the “cap” on general damages at IR£300,000 (€380,000), adding that:
“I cannot accept . . . that a paraplegic, no matter how aware he is of his condition or how long his life expectancy . . . is in the same category as a quadriplegic”
An adjustment to take into account an increase of 16% in the CPI between 2004 and 2007 would increase the Board’s 2004 guideline from €300,000 to €348,000. There were increases also, between 2004 and 2007, in GNP per head, (25%), consumption, (25%), and average industrial earnings, (10%).
The Board’s “guideline” for “spinal cord injuries” in 2004 was somewhat less than the 2004 equivalent of the 1984 “cap” (after adjustment for inflation) and less than recent court awards for catastrophic injuries. However, its Book of Quantum expressly recognises the jurisdiction of the courts to “set the maximum compensation” in such cases.
Redress Board
The Redress Board, established pursuant to the provisions of the Residential Institutions Redress Act 2002, established a system for the assessment of damages to be awarded for the sexual assault or abuse of children in State care.
It provides for awards up to €300,000 and contemplates higher awards in cases deemed to be “exceptional”.
Having regard to the specialised nature of its work I would respectfully adopt the view expressed by Denham J. in M.N. v. S.M. that the system, whilst informative, should not be regarded as setting a precedent in respect of the assessment of general damages for personal injuries generally.
Conclusion
Having applied the criteria and principles identified in Sinnott and subsequent authorities, I am satisfied on the evidence that the present equivalent value of the 1984 “cap” of IR£150,000 (€190,000) is €450,000. This sum, (assuming normal life expectancy, an annual return of 3% and current tax rates), represents the capital value of an annual payment of approximately €17,000, (a factor considered relevant by the Supreme Court in Sinnott).
As I have indicated the limit or “cap” on general damages might more usefully be described as a “guide”. It is simply the present threshold beyond which further monetary compensation for a catastrophically injured person has probably become relatively meaningless. It is not a yardstick against which other awards of general damages should, necessarily, be measured.
The plaintiff’s general damages.
The plaintiff has suffered an injury of the utmost gravity. She is entitled to recover substantial damages to compensate her for the near total destruction of her life and lifestyle during the past eight years. Those should have been amongst the most valuable years of her young life.
She is also entitled to substantial damages to compensate her for the pain, suffering and disability which she will endure in the future and the loss of many of her future hopes and aspirations.
However she cannot be categorised as a person who has been so catastrophically injured that she should be awarded the maximum level of general damages payable within this jurisdiction.
She has significant mobility and is capable of walking (with assistance). She will now receive much needed medical care and assistance including pain management and psychological treatment. This will help her to achieve an acceptable level of comfort which will enable her to participate, to some extent, in everyday life events.
I am satisfied that she is entitled to recover general damages of €125,000 to compensate her for pain, suffering and loss of life and lifestyle between the date of her injury and the date of the trial.
I am awarding her further general damages of €200,000 to compensate her for the pain, suffering, disruption and loss of life and lifestyle which she will endure for the remainder of her life.
The plaintiff’s loss of earnings.
It has been contended on behalf of the plaintiff, that the evidence has established that, if she had not suffered her injury, she would probably, (a) have completed her English language studies within approximately eighteen months, (b) have graduated as a certified accountant within a further six years or thereabouts, and, (c) have been capable of obtaining remunerative employment within this jurisdiction or within the European Union at the end of 2009 or in early 2010.
It is also contended that her boyfriend, Tony Cao Zhi , would probably also have graduated and obtained remunerative employment and that the two would probably have married and started a family, either in this country or elsewhere within the European Union.
The defendants argue that no adequate evidence has been adduced from which the court can find that the plaintiff would have graduated as a qualified certified accountant within the suggested time or, indeed, within any reasonable time limit.
Ms. Lydon S.C contends that, if the plaintiff had not suffered her injuries she would probably have been unable to secure permission to remain within this jurisdiction and would have been obliged to return to China within a relatively short time after May, 2002. She points out that the plaintiff’s grasp of the English language remains very limited notwithstanding her attendance at an American College in Dublin.
In April, 2002, one month before the collision which caused her injury, the plaintiff commenced a course in the English Language Institute on St. Stephen’s Green, Dublin. Her investment of the sum of €2,000 for that purpose was a measure of her determination to bring her understanding and use of the English language to a level which would enable her to commence the full study of accountancy in English.
I am satisfied on the evidence that, if she had not suffered her injury, it is probable that she would have successfully completed her course and commenced a three-year accountancy degree in either University College Dublin or Grace’s College Dublin some time in the year 2003.
I am not satisfied that she has established, on the evidence and on the balance of probabilities, that if she had not suffered her injuries she would have graduated as a certified accountant.
I believe that she has established, on the evidence that if she had not suffered her injuries, she would probably have completed a three-year accountancy degree course in either University College Dublin or Grace’s College, and at a minimum, have acquired a sufficient level of proficiency and qualification in accountancy to enable her to secure full-time employment in accountancy in this jurisdiction by 2007 or 2008.
I am satisfied, on the evidence, that when she arrived within this jurisdiction, she did so as a determined and committed young woman who had a very clear objective and who had invested her time and her resources in the pursuit of a career in accountancy. The evidence has established that if she had not been so gravely injured she would probably have gone a considerable way towards achieving her objective.
I am satisfied that after graduation she would probably have continued to pursue her objective of improving her level of competence as an accountant and would probably have had some success in doing so, but without achieving her objective of qualifying as a certified accountant.
I accept her evidence that she would have continued in part-time employment between May, 2002, and the date of her graduation from either University College Dublin or Grace’s College Dublin. Her student visa permitted her to work on a full-time basis also (during school holidays) and she had hoped to do so.
At the time when she suffered her injury, she was working, as a cleaner, for twenty hours every week at a rate of €8 per hour.
She would probably have continued to earn that level of remuneration as a part-time worker between the date of her injury in May, 2002, and the date of these proceedings. She has suffered a loss which I would estimate at €50,000 in respect of those earnings. She is entitled to recover that sum as damages from the defendants.
Evidence adduced on behalf of the plaintiff by Mr. Roger Leonard, who is an occupational therapist and vocational evaluator, indicated that a 2008 salary survey for the Dublin area disclosed salary levels for accountants in practice which ranged from €40,000 per annum for a new member in practice to €300,000 per annum for a partner.
The survey disclosed that the level of earnings for a trainee accountant was between €22,000 and €28,000 per annum. Newly qualified accountants, internal auditors, cost accountants and management accountants earned remuneration in the range of €45,000 to €60,000 per annum.
Ms. Paula Smith, who is a vocational rehabilitation consultant, testified on behalf of the defendant. She estimated that a trainee accountant in 2007 earned between €28,000 and €32,000 per annum, whilst assistant cost accountants earned from €38,000 to €40,000 per annum. Credit control managers earned an average of €40,000 to €60,000 per annum. Management accountants earned more than that.
The average range between the lowest earnings of a trainee accountant (€22,000 per annum) and the highest earnings of a newly qualified accountant in 2008 (€52,000 per annum) is €37,000 gross per annum or approximately €596 per week.
On the evidence of Mr. Mc Dowell those earning levels have significantly reduced during the recent past and are likely to reduce further. Unemployment has greatly increased and employment opportunity is limited.
I am satisfied that if the plaintiff had not been injured, she would probably have obtained employment in 2008 at a remuneration level in the region of €450 per week. The capital value of that loss to the plaintiff, if she remained in continuous employment as an accountant until she reached the age of sixty-five years, is €522,950.
That capital sum must be discounted to take account of the factors identified by the Supreme Court in Reddy v. Bates (and subsequent authorities). The discount must be substantial because of the present and predicted domestic and global economic recession and because of the plaintiff’s personal circumstances and aspirations prior to her injury. The discount must also take into account the plaintiff’s professed hope to marry and raise a family, which, if realised would probably have slightly reduced, the extent and duration of her earning capacity.
Allowing for those discounts I will award the plaintiff the sum of €350,000 to compensate her for earnings which she would have achieved in the future if she had not suffered her injury
The plaintiff’s care costs.
Ms. Mary Breslin, who is an expert in the recruitment of nursing and caring staff, stated in evidence that the rates of remuneration for carers in 2008 was €21 per hour (for three hours or more each day).
It was Ms. Breslin’s view that the plaintiff presently requires the assistance of a carer for three hours in the morning and a further three hours in the evening because she needs assistance in dressing, bathing, cooking and shopping. She also stated that the plaintiff requires a cleaner for three hours twice weekly (at a cost of between €13 and €15 per hour) to maintain her accommodation.
Since it is unlikely that the plaintiff’s condition will improve, I am satisfied that she will require professional care for a minimum of four hours every day, seven days every week, at a current cost of €21 per hour (€558 per week).
The capital value of that care for the remainder of the plaintiff’s life will be just in excess of €800,000. The plaintiff will also be required to pay for cleaning for approximately six hours per week and must pay for her carer’s replacement for three weeks holidays each year.
Actuarial calculations in respect of the capital cost of care, cleaning and housekeeping etc., are intended to assist the court to understand the scale of daily, hourly or weekly costs. They are not intended to represent the precise calculation of the costs which will actually be incurred.
On the evidence in this case, I am satisfied that the plaintiff is entitled to recover the sum of €900,000 to compensate her for the costs which she will incur in the provision of daily care, annual carer holiday replacements, and weekly housekeeping for the remainder of her life because of her injury.
She has required continuous and comprehensive care from the time when she suffered her injury in May, 2002, up to the present time. That care has been provided in an exemplary manner by her boyfriend, Tony Cao Zhi, continuously, for more than seven years.
The plaintiff is entitled to recover damages to enable her to repay Mr. Cao Zhi for the invaluable, continuous care which she has received from him.
The cost of professional care for four hours every day from the 9th May, 2002, to the 12th December, 2008, has been calculated at €174,916. Mr. Cao Zhi provided far more than four hours care each day to the plaintiff during the past seven years.
When awarding damages for past care provided by parents and family members it has been the practice of the courts to apply remuneration rates significantly less than those which apply to the provision of professional care. It has never been entirely clear to me why that should be the case. Usually the care provided by parents and family members is commensurate with professional care standards. Often it exceeds those standards.
However, adopting that practice, I am awarding the plaintiff the sum of €85,000, which is somewhat less than 50% of the cost of the very least amount of professional care which the plaintiff has required during the past eight years.
As I have indicated, I am satisfied, on the evidence, that in addition to care, the plaintiff will require significant psychological treatment in the short-term and indefinite pain management. I am awarding her the sum of €100,000 to compensate her for the future cost of that medical treatment.
Damages will, therefore, be awarded in total as follows:
1. Agreed Special Damages to date: € 14,380.12
2. Fee paid to English Language Institute € 2,000.00
3. Loss of earnings to date: € 50,000.00
4. Loss of earnings in the future: €350,000.00
5. Care to date: € 85,000.00
6. Care, housekeeping, etc. in the future: €900,000.00
7. Psychological treatment and pain management
in the future: €100,000.00
8. General Damages to date: €125,000.00
9. General Damages in the future: €200,000.00
Total: €1,826,380.12
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.
Colburn v Sligo County Council
[2009] IEHC 536, O’Neill J.JUDGMENT of Mr. Justice O’Neill delivered on the 6th November, 2009
The Plaintiff in this case, Sheila Colburn, is 71 years of age now. On 29th June 2006, at Castle Street in Sligo as she was walking along the footpath she tripped and had a very nasty fall resulting in quite significant injury.
Now, I am quite satisfied that what caused the Plaintiff to trip and fall was an indent or depression in a drainage channel in the footpath at the location in question. What had caused this incident or depression was a piece of concrete missing from the edge or the side of this drainage channel and I am satisfied that what caused this piece of concrete to be missing was the result of the disturbance caused by a variety of excavations in the pathway adjacent to the channel in question.
Quite clearly the indent or depression was not the result of normal wear or tear from the usage of the footpath and in this regard I accept the evidence of Dr. Jordan, the engineer called for the Plaintiff, and his evidence as to what caused the piece of concrete to be missing, was not disputed or challenged by the Defendants’.
The issue then in the case is whether or not the depression or indent which was there was a tripping hazard. Well, I am quite satisfied that in fact it was this particular depression that caused the Plaintiff to trip. The Plaintiff gave me an honest and accurate account of her mishap and soon afterwards she made a complaint to the Defendants’ at the Town Hall and attributed her fall to a defect in the path.
Now, Dr. Jordan, the Plaintiff’s engineer, in his evidence contended that the edge of this depression which faced the Plaintiff as she travelled along was an abrupt edge which was of sufficient depth to be a trip hazard. Ms. Kelly, the engineer who was called on behalf of the Defendants’, disputed this and said that the edge facing the Plaintiff was in effect graduated and not abrupt so that it would not have been a trip hazard. Dr. Jordan measured the depth of the depression and found it to be 15 millimetres and his evidence was that anything in excess of 10 millimetres is a trip hazard. It is quite clear to me from looking at the photographs and hearing the evidence that the depression was created by the dislodging of a piece of concrete. It would seem to me to be quite improbable that the surfaces that would have been left as a result of this would be even or smooth to any degree at all.
It is quite clear that the surface which faced the Plaintiff’s travel, so to speak, was uneven and certainly didn’t have any kind of uniform regularity about it and would have differed markedly from the kind of smooth surface that one would find, the smooth graduated surface that one would find in the normal course of a channel of this kind.
The depression also was clearly large enough to accommodate the toe of the Plaintiff’s shoe. In my opinion it was had sufficient depth also to be a trip hazard if a shoe, or the toe of a shoe, entered into it. It is probable, in my view, that the edge which faced the Plaintiff had sufficient roughness and unevenness to catch the toe of the shoe if the toe of the shoe, in the normal process of walking, went into the depression.
All of this leads me to conclude that the depression in fact did create a trip hazard and it was this that did cause the Plaintiff to fall. Thus, I have come to the conclusion that the Defendants’ are liable to compensate the Plaintiff for her injury. This is no evidence or indeed any suggestion of any contributory negligence on the part of the Plaintiff herself. Now, as a result of this accident unfortunately the Plaintiff has suffered a significant injury. I suppose it would be fair to say that having regard to her age and her, previous medical or surgical history, she was a bad candidate for this. She had in the years 2002 and 2003, two knee replacements. Thankfully that surgery, I am quite satisfied on the evidence, was very successful and between that surgery and the time of this accident she led a normal life with normal mobility.
In the course of the evidence the Defendants’ did challenge or did contend that prior to this accident the Plaintiff had, as it were, a checkered medical history and that which has arisen since her accident was in fact no more than a continuation of that which went before. I cannot accept that contention because it seems to me that the evidence establishes that whilst the Plaintiff did complain of low back pain two months before this accident, it seems to me to be clear that that was an isolated incident and cleared up pretty quickly and did not lead to any kind of continuation of treatment. Similarly, her complaints with her respect to her knees, she had a very successful outcome to her surgery and apart from maybe some minor complaints thereafter she had healthy functional knees prior to the accident.
Now, as a result of the accident itself she suffered an undisplaced fracture of the head of the radius at the elbow on the left side. Whilst that might have appeared the most serious injury at the time in fact it turned out to be the least troublesome because with conservative treatment i.e., sling and so on, it healed up fairly quickly and apart from some loss of extension has not really given her a whole lot of trouble since. She also suffered with a soft tissue injury to the right knee. Again, whilst that might have appeared threatening at the time having regard to her previous surgical history, it too appeared to have resolved itself fairly speedily and thankfully did not lead to a situation where there was a disruption of, or significant interference with the successful knee replacement surgery she had in the early part of the this decade.
Her significant injuries were in fact to her neck and lower back. Now, in due course MRI scans were done on both and these, as far as the neck was concerned, revealed relatively minor degenerative change, but so far as the low back is concerned very significant degenerative change i.e., a diffuse protrusion of disc at the L4/5 level.
Now, I accept the Plaintiff’s evidence and I, indeed, accept Dr. Gallagher’s evidence which is to the effect that these two injuries and, in particular, the low back injury have significantly altered the Plaintiff’s life since then. As a consequence she is now on a regime of anti-inflammatory and analgesic medication on a daily basis and has been since this fall and that is likely to continue for the foreseeable future.
It is quite clear that there are features to her low back injury which were never present prior to her accident, for example, her difficulty with straight leg raising and so on. I am satisfied that the low back injury has caused a very, great disruption of her life and has hugely hampered her mobility since this accident, as a result of which, she now has a very short walking distance which is limited by the pain in her lower back.
I am also satisfied that she endures a good deal of pain and discomfort in her neck and shoulder and as is typical of that particular injury and indeed low back injury, that would have a very serious detrimental affect on the normal sleep pattern.
It is now three years or more since this accident. There is no prospect of improvement and, indeed, there is no treatment that is available to her which is likely to give her any improvement. All that can be done for her is to keep her on this rather heavy regime of anti-inflammatory and analgesic medication which she will have to continue on for the foreseeable future.
So at the age of 71 she has, over the last three years, endured a very great disruption of her life and a great deal of pain and that is likely to continue for the foreseeable future.
I do not propose to divide the general damages as being past and future, having regard to the length of time since the accident and her age at the moment. It seems to me to compensate her by way of general damages for what she has to date suffered and what she is likely to suffer for the foreseeable future, the appropriate sum to compensate her is the sum of 60,000 Euro. Special damages are agreed at 2,190 Euro, so the award will be 62,190 Euro.
Quinn v Dunne
[2009] IEHC 144, Peart JJudgment of Mr Justice Michael Peart delivered on the 27th day of March 2009:
At about 2am on the 9th February, 2003 the plaintiff was a rear seat passenger in a taxi being driven by the first named defendant when that vehicle was in collision with another vehicle. The plaintiff was wearing a seat-belt but nevertheless sustained serious personal injuries. Liability is not in issue.
The plaintiff was aged twenty five years on the date of the accident and worked as a printer. He claims that as a result of these injuries he is no longer able to work as a printer, and now owns and drives a taxi himself. Part of his claim arises from what he considers a reduction of earning capacity as a taxi-driver compared to what he would have expected to earn if he had been able to continue his career as a printer. I will come to that.
The injuries:
The plaintiff has a vague recollection of the impact, and recalls somebody speaking to him at the side of the road thereafter. The medical reports note that he suffered a period of unconsciousness and that as a result of the impact he was thrown out of the rear window of the vehicle.
The plaintiff’s injuries are noted to have been life-threatening and consisted of a fracture of the neck of the right femur (Garden grade 3), fracture of the surgical neck of the right humerus, minimally displaced fracture of the medial epicondyle of the right elbow, and a right parietal haematoma. The head injury was treated conservatively, the hip fracture was treated with open reduction and internal fixation, the shoulder was treated conservatively with manipulation under anaesthetic, and the fracture of the medial epicondyle was also treated conservatively. He has a scar on his head and other scars incidental to the surgery which he underwent.
The plaintiff remained in hospital for twelve days and spent a further two weeks in Clontarf Rehabilitation before being discharged home in a wheelchair.
While the plaintiff has made a satisfactory recovery from these injuries he has restricted function of his right shoulder and right arm with activities such as dressing and shaving, and it is noted by Mr Jack Phillips, Consultant Neurosurgeon in September 2007 that he has some post-traumatic difficulties with concentration, mild dizzy spells, light-headedness and insomnia.
Mr. James Colville, Consultant Orthopaedic Surgeon, has reported in December 2007 that while there is nothing to suggest at the moment that there is any significant arthritis in his hip joint, there are indications of the possibility of arthritis developing arthritis, but not in the short or medium term. There is no risk of arthritis developing in his right elbow, and while there is some loss of movement in that joint, it has no adverse functional implications.
The plaintiff’s evidence in relation to his injuries and work:
Following the plaintiff’s discharge home he was wheelchair bound for four of five weeks, and thereafter he mobilised, but was able to use only one crutch because of the injury to his right arm. He was unmarried at this time and was living in his parents’ house. Upon his return home he felt generally disoriented after the shock of the accident. He was unable to use the stairs for about six weeks and a downstairs room was adjusted to enable him to sleep there. When he began to walk again he did so with the aid of a crutch, but was limping and spent some time regaining his strength. He had a good deal of pain in his hip, and to a lesser extent in his arm. He continued to experience difficulty in bending his arm, and had a significant loss of grip strength. He attended at Beaumont Hospital for exercise and physiotherapy once a week for a number of months. Subsequently he has attended a private physiotherapist in order to assist his ongoing improvement.
During his recovery period he had difficulty sleeping comfortably, and found that his concentration was poor, and he suffered from dizziness. He was constantly tired even though he had not returned to work.
The plaintiff returned to work as a printer after about six months, but worked only two to three days per week. His employers were very understanding in relation to his injuries, but after a couple of weeks he found that he was exhausted after a day’s work, and was not able to work around the machinery in the workplace as he had been previously. He did not feel up to the job. There was some heavy work involved in his duties such as loading machines with paper, cleaning printers, maintenance and so forth, and he was unable to do these tasks as well as before. He estimates that he was under-functioning at this time to the extent of about 50%. Having discussed the situation with his employer, he left the job again and remained at home to continue his recovery.
He returned to work again about six months later which would have been about one year after the accident in February 2004. At first he was put on light duties only but returned to normal duties after the first week. At this time his hip as still very sore, and he continued to be not as flexible as previously and was very tired in the evening when he returned home. His elbow was still sore and he had not, and still has not, regained full movement. He was conscious that he was not fully up to the job and was unable to do his job to the fullest extent, although he tried hard. He stated that at this time his work colleagues helped him out to an extent.
Around May 2004 he moved to a different company. The salary was somewhat better there, and in addition the new company used more modern machinery, which, according to him, was one of the reasons why he moved to that firm. He found the work there somewhat easier, but nevertheless he experienced some difficulties such as climbing onto catwalks, loading paper, moving heavy pallets of paper, and moving around and under machinery. He found that he was managing but still not as well as he felt he ought to.
By the end of 2004 he was still attending regularly for physiotherapy, but felt that he had improved as much as he was ever going to. He was still tired in the evenings after work and still experienced some pain. He felt that he still was not able to do his job as well as he ought. Again, his employers seem to have been understanding of his difficulties and were aware that he had had this accident.
By May 2005 he decided that he would have to leave the print business because of the effects of the injuries on his capacity to do that type of work. He decided to become a taxi driver, since that would enable him to be self employed so that he could choose his hours of work and could take breaks from work during the day when he felt the need to do so. He did not seek advice at that time about the advisability or necessity to change his occupation to that of taxi-driver. This was a decision which he made for himself since he felt that it would suit his physical condition better. He was still having pain in his hip and his shoulder and arm, and even when driving a taxi he needed to take a break of twenty minutes or so from time to time in order to relieve his hip pain by walking around. He has been driving a taxi from that time to the present. But he states that his shoulder and arm problems affects his ability sometimes to help passengers with their luggage, and even to turn around in the taxi when taking fares from passengers. These difficulties, according to his evidence, cause him to work less hours than he would otherwise be able to do, since he needs to take breaks. I will return to the question of his earning capacity in due course.
The plaintiff has described how even in mid-2005 he continued to feel light-headed from time to time, his concentration was poor, and this affected him even at home if he was reading a book or magazine or watching television. He find that very annoying and feels that it has an effect on others as well, though he tries hard to let it affect his life too much. He has suffered from depression as a result of these difficulties, although he has not sought any professional help in that regard. He feels angry and frustrated about the effects of the accident on his life. He has a permanent injury, and has been told that he may need a hip replacement in the future. He still suffers pain and discomfort when in bed, and his hip continues to be sore, even when sitting. The Court has been provided with a report dated May 2004 from Niall Pender, Neuro-psychologist, and he expresses the view in that report that the plaintiff did not appear to be depressed at that time and that he was functioning well albeit with increased fatigue, distractibility and occasional emotional liability. He stated also that the plaintiff had some elements of post traumatic reaction with avoidant and intrusive thoughts related to the accident, but that this did not appear to have a significant impact on his daily life. He did not feel that it was necessary to see him again unless the plaintiff himself saw such need. The plaintiff did not apparently feel such a need and has not sought further help this regard.
By 2006 his shoulder was still quite sore with a loss of full movement. He finds it difficult to put on a jacket or even wash himself in a shower. He finds that he has restricted movement in his forearm, and feels that his shoulder and elbow are now as good as they are ever going to be.
He has stated that his social life is badly affected by his injuries. Prior to the accident he had played indoor football and has had to cease that activity, and he has difficulty running. If he out socialising he is conscious of his injuries when in a crowd as he fears that somebody might bump into him and cause further injury. He attends a gym for exercise but confines his activity in the gym to cycling or walking. He does not use weights. He tries to go to the gym about twice per week.
He is of the view that he will continue to drive a taxi for the foreseeable future. He left school with a modest Leaving Certificate, but the only training he has is as a printer. When he left school he completed a four year apprenticeship as a printer which included a course at Bolton Street College of Technology. But he is of the view that he cannot return to that trade because of the physical demands of that job. The plaintiff’s vocational assessor and that consulted by the defendant each consider it reasonable that the plaintiff should decide to cease being a printer given the demands of that job, and decide to become a taxi-driver.
Was it reasonable for plaintiff to leave printing job?
One issue which arose in this case is whether it was reasonable for the plaintiff to decide that he could no longer continue his career as a printer because of the physical demands of that job, and the pain and loss of strength and mobility which he was experiencing. The plaintiff accepted that he had not sought professional advice, medical or otherwise, before deciding for himself that he could not continue and before deciding to purchase a taxi plate and becoming a taxi driver. He stated that he was aware himself that he was unable to do the job as a printer as he ought to and could not continue into the future with that job. It was suggested to him in cross-examination that this change of career was not necessary, and that this was simply a voluntary change of career on his part, and that no doctor or even his employer at the time had suggested that he could not continue. The plaintiff accepted that he had not asked any doctor to prescribe painkillers and had not sought advice in that regard. He stated in any event that he does not like to take painkillers.
On this issue, having heard the plaintiff giving his evidence, I am satisfied that the plaintiff has not exaggerated his pain symptoms in any way. I am satisfied also that he has not sought to exaggerate the difficulties which he experienced after he got back to work as a printer. It seems reasonable to me based on the evidence that the physical demands of his work as a printer were such as to cause him ongoing difficulties. The work was, in part, physically demanding. It involved moving heavy pallets of paper, moving around heavy machinery related to both loading paper, maintenance work and so on, as he has described. I am satisfied that he did the best he could, and that while he tried to resume his job as a printer his work colleagues were good enough to help him. But I accept that the plaintiff genuinely felt that he was not performing as well as he had previously. His employers were understanding of his difficulties, but nevertheless they were also of the opinion that he was not performing at 100%. In these circumstances it was reasonable for him to make a decision to seek an alternative career, and that the decision to drive a taxi was a reasonable one in the circumstances. The plaintiff has no vocational or other training for any other trade than as a printer. It was suggested to him in cross-examination that in recent times there were lay-offs in the printing industry with the arrival of new technologies and more modern machinery, as well as downturn in the need for hard copy printing, since much of the material previously available in hard copy, such as training manuals, were now available and accessible on-line, and that this was more likely the reason why he decided to leave the printing business and take up an alternative occupation. But he denied that this was the case. I accept his evidence in that regard. His injuries and ongoing symptomology are entirely consistent with the decision which he made at the time that he made it.
The plaintiff’s previous employer has given evidence that had he continued in his employment as a printer his salary would now, including a shift allowance, be about €53,000 per annum. The basic pay is paid at the rate of €19 per hour and on the basis of a 39 hour week the annual basic salary would be €38,352, and on top of that there would be overtime available. She estimated that the plaintiff’s salary would be in the order of €46000 per annum, based on €19 per hour for a 39 hour week plus some overtime on top of that, but without any shift allowance.
She stated that at the present time there is no shift work available. She stated that her company has not replaced some staff who have left the company because of a downturn in the business which appears to have resulted from the loss of a Government contract. But there have not been any redundancies as such. They have simply not replaced staff who left for whatever reason. She stated that at the time of the plaintiff’s accident there may have been fourteen employees and that there are now eleven employees.
A former printer colleague of the plaintiff who still works as a printer in the firm with whom the plaintiff did his apprenticeship and who still works with that form gave evidence that his current basic earnings are €62,000 gross, and that there would be overtime on top of that when available. This man has been with the company since the early 1990s, and has obviously become a senior person at that company, and I think that he is not a fair comparator in relation to what this plaintiff might be earning as a printer, had he remained in the job he left at a different company, when he did so. If the plaintiff was still working with his previous employer, he would in my view be earning something in the region of €50,000 per annum, particularly given the evidence that his employer is suffering something of a downturn in business.
The plaintiff started driving his taxi around June 2005. An issue arises as to whether his earning capacity as a taxi driver is less than he could have earned had he continued to work as a printer. The evidence appears to be that at the time he left his job as a printer he was earning something in the region of €750 per week before tax. That figure would have included some overtime, depending on the need for overtime to be worked. It has not been possible for the plaintiff to establish how much of the average wage of €750 per week gross comprised overtime. The plaintiff has stated that he works about fifty hours per week as a taxi driver. He works about eight hours each Tuesday, Wednesday and Thursday, about ten hours each Friday and Saturday, and about six hours each Sunday. He states that as a printer he would have worked on average more hours per week than that, and that he is at a loss accordingly.
However the plaintiff has also stated that as a taxi driver he aims to earn €800 per week in fares, and that once he has reached that target he stops. He accepts that he works less hours than some other taxi drivers. In so far as he is claiming that he now earns less than he did as a printer, it was put to him that if he did not cap his earnings by stopping driving his taxi once he had reached his €800 target there would be no shortfall. He accepted that he usually reaches this target. From that figure of €800 per week gross, expenses such as petrol, insurance, road tax must be deducted to arrive at a taxable income.
I have heard evidence also from a lady who works with the National Taxi Drivers Union. That body provides an accounts service for taxi drivers. She assists taxi drivers, including the plaintiff, in the preparation of their accounts for the Revenue Commissioners. She has given evidence that the plaintiff’s gross income for 2006 was shown in his accounts as €34117 before expenses were deducted. Following that deduction he had a taxable income for that year of €20150. For the tax year 2007 his gross income was shown as €37684 before deduction of expenses, and the nett taxable income was shown to be €25945 (€498 per week). After tax, this figure, according to the plaintiff’s actuary’s report dated 1st April, 2008 is €20,008 (€384 per week).
The salary which he would have earned as a printer had he remained with his previous employer was stated to be €53,000 gross which has been calculated to produce a nett after tax sum of €39988 per annum (€769 per week). On these figures there is a loss differential of €271 per week. I consider it fair to both parties to proceed on the basis of the 2007 nett earnings figure for taxi earnings, and to disregard the lower figure for 2006 which was the first year in which the plaintiff operated his taxi.
I should refer to the fact that there has been evidence adduced that in every taxi car there is a machine fitted which can produce a printout of exactly what fares have been taken in a given period. The plaintiff has stated that he was not aware that the machine in question could produce that information in order to give an exact account of what he has earned in a given period. The only evidence given in this case is the plaintiff’s own estimate of what his average earnings are, and what was contained in the annual tax accounts submitted to the Revenue Commissioners. Nevertheless I am satisfied that the plaintiff has been truthful as to his estimate in this regard, and there is no question of disbelieving the figures which he has produced as to his earnings, or the hours that he works.
I feel that a reasonable approach to the question of future loss of earnings arising from a differential between what he could have earned as a printer and what he will earn as a taxi driver into the future is to take the gross figure of €53000 per annum which was the figure given by his previous employer as what the plaintiff’s salary would now be with that company and round it down to €50,000 gross (€961 per week) given the absence of shift work and reduction of overtime at present. The nett income figure based on €50,000 is approximately €750 per week. If one then takes his nett income after tax for 2007 as a taxi driver as a yardstick of his present nett income, he is earning about €385 per week nett of expenses and tax paid as a taxi driver. In doing so, I am conscious that the plaintiff himself has stated that when he reaches a weekly fare gross of €800 he stops working. But he has also stated that he does not reach this target every week, though he stated that he might reach it most weeks. If he reached it every week his gross income before expenses could be about €41000 per annum before expenses and tax are deducted. In my view it is reasonable for the plaintiff to cease working after he reaches €800 in any given week, in view of the ongoing difficulties which he continues to experience as a result of his injuries. It is impossible in a case such as this to be mathematically precise and to arrive at a nett weekly income after expenses are deducted, and then to calculate an after-tax income. It is fair in all the circumstances to take the figures based on the 2007 after expenses and tax figure as set forth.
The figures produce a nett weekly loss of €365. Applying the multiplier of 1174 (on basis of tax paid @ 20%) that figure capitalises to age 65 in the sum of €428510. It is reasonable to take age 65 for the purpose of this calculation.
I do not intend to make any reduction to take account of Reddy v. Bates, but in that context I should say that neither am I taking account of the evidence which has been given to the effect that during 2009 taxi fares are due to be increased. In my view a reasonable and fair balance is struck in this way.
Based on these figures and by reference to the plaintiff’s actuary’s figures for income earned post-accident, I calculate the plaintiff’s loss of earnings to date to be in the order of €95000 nett, from which is to be deducted a sum of €7000 in respect of Social Welfare payments received, giving a loss of earnings figure to date of €87000.
In relation to general damages for past pain and suffering is concerned, I assess a sum of €100,000. The plaintiff suffered a serious injury to his hip and his arm and he has suffered significant pain and discomfort particularly in the years immediately after the accident. He suffered a head injury which caused him problems as outlined. He has a scar which is not of any serious cosmetic significance, but it is there and he is conscious of it.
For future pain and suffering from now (age 31), including the probability of two hip replacement at some later date, I assess further sum of €50,000, making a total sum for general damages in the sum of €150,000. He is likely to continue to experience pain in his hip from time to time, and he has some difficulties as outlined in relation to his arm which are likely to continue to cause him some ongoing problems.
Given the age of the plaintiff it is reasonable to presume that he may require two hip replacements later in his life. The capitalised cost of two hip replacements in the future, including two recuperation periods of three months each is put at €25000.
Special damages have been agreed in the sum of €29475.
The total of these figures is €719,985. I will give judgment to the plaintiff for this sum against the defendants
Donovan v Farrell
[2009] IEHC 617, Peart J.Judgment of Mr Justice Michael Peart delivered on the 4th day of December 2009:
The plaintiff is a fifty nine year old lady who received injuries on 1st July 2005 when a car being driven at the time by the third named defendant collided head-on with her car as she was on a roundabout. It appears that the third named defendant was driving at considerable speed on the roundabout at the time, and in the wrong direction.
Liability is not disputed in the case, and the issues are confined to the nature of the injuries attributable to this accident and the amount of damages which ought to be awarded.
When she first saw the car coming towards her on the roundabout she believed that she was going to be killed. According to her own evidence she was in shock in the immediate aftermath of the accident but managed to stumble out of the car. She was aching from head to toe and was taken to Tallaght Hospital where she was found to have a fractured sternum.
She also had pain in her neck and in her lower back for which she was given painkillers. These symptoms continued for some months, and she attended her G.P. Dr Quigley.
Her back in particular continued to be painful, and worsened as time went on. She was referred for physiotherapy and received heat treatment. She had about twelve such treatments which provided some short term relief only after each session.
She found that she was not the same person after this accident. She states that she cannot do any gardening or house cleaning and other such tasks. She cannot lift anything heavy and has great difficulty bending. She said that all of these difficulties caused her to become very depressed. In addition, she was having nightmares, and she felt that she had become a burden on her family. She attended a psychiatrist, Dr Murphy and he prescribed Cipramil.
But she also began to abuse alcohol, and this became a problem for her, leading to her being admitted to Tallaght Hospital in relation to it, following a particular episode at a shopping centre. She is still on medication for her depression. She is still feeling depressed, and does not drive a car any more, and this affects her. She does not believe that she will drive a car again because she is too nervous. I will come to the evidence of Dr Murphy who examined her two years post-accident and diagnosed a post traumatic stress disorder and depression resulting from this accident.
While her neck symptoms have to a large extent resolved, it can still be a bit stiff.
She had some pain in her arm also for a few weeks, but that has resolved.
As far as her sternum is concerned, it took some months to resolve, though she still has some pain there when she coughs.
It is her low back which continues to cause her the most pain and difficulty, even to this day. She considers that her back is now very weak, and that it becomes very stiff if sitting in a chair, and when she is in bed. She appears to have learned how to manage this pain, but it still causes her great discomfort and restricts her daily activities. She applies heat treatment to her back herself by using a hot-water bottle. She does not take painkillers. Mr Stephen Young, Neurosurgeon, has suggested an epidural injection might assist her but she is reluctant to undergo this treatment as she feels that there is no guarantee that it will work. He also mentioned the possibility of a discectomy but she is unsure about that also.
Bernard McDonagh SC for the defendants cross-examined the plaintiff. During the course of that cross-examination, he referred to the fact that a report from Mr Stephen Young, Consultant Orthopaedic Surgeon, who examined the plaintiff for the defendants in 2008, contains no reference in the plaintiff’s past history to the fact that she had experienced difficulties with her back during her previous pregnancies many years ago. The plaintiff stated that she told him about this, even though it is not mentioned in his report.
Mr McDonagh also questioned her in relation to when her back symptoms developed. He referred to the clinical notes made upon her first attendance at the A & E Department at Tallaght Hospital on the day of this accident on the 1st July 2005 which notes complaints in relation to her neck, her scalp, her sternum, her right wrist and right arm, but not to her back. He referred also to clinical notes made ten days later when she again attended on the 11th July 2005. These notes indicate that the plaintiff was brought to hospital on a spinal board on the 1st July 2005, and refer also, inter alia, to “continuous aches in lower back”. They note that the plaintiff was complaining in relation to her back but notes “able to fully flex when sitting on couch and knees straight – SLR [straight leg raise] normal”. These notes also indicate that an x-ray was done on her lumbar spine which showed “significant degen L4 L5”.
Some of Mr McDonagh’s questions in relation to her back were predicated on an understandable mis-reading of these notes. The handwriting in these notes is in places difficult to read, and it was thought that one part of the notes indicate significant degeneration at C4, C5. It has been subsequently confirmed and accepted by all that the reference to degeneration relates to L4, L5, and not to her cervical spine. The plaintiff is adamant that immediately following this accident she had back pain.
Mr McDonagh referred also to the fact that Dr Quigley’s report makes no reference to back pain, but again she was definite that she had back pain following the accident.
Her evidence has been that her back problems persist to the present day, as already set forth. Mr McDonagh asked her about that by reference to an examination performed for the defendants by Mr Brian Hurson, Consultant Orthopaedic Surgeon, on the 18th June 2009, some four days before she was observed by a private investigator cutting grass at her home, and which shows her brushing up garden debris, cutting grass with a mower, and carrying that mower into her house. A video of these activities was shown to the court. I will come to that evidence shortly.
Mr McDonagh referred to the fact that Mr Hurson reports that in relation to her back as follows:
“Near normal flexion, extension and lateral bending. Straight leg raising is resisted at approximately 30 degrees bilaterally. However she is able to sit up almost at right angles. Neurological assessment of her lower limbs was normal. She has mild tenderness in her lumbar sacral region.”
Mr Hurson’s opinion in relation to her back as expressed in this report is that the plaintiff has aggravated the degenerative arthritis in her lower lumbar spine, and that for the future she is likely to have persistent symptoms, but that these symptoms are “due to the fact that she has had degenerative changes rather than being caused by the accident”. He goes on to state that “the accident would have contributed to her symptoms although would not cause further deterioration of her degenerative arthritis.”
I am satisfied that the back pain which the plaintiff experienced during her pregnancies and for which she received treatment at the time, many years ago, is not relevant to the progress of the injury which she sustained to her back in this accident.
As I have said already, her neck has substantially recovered, as has her sternum, and arm pain.
Her back pain, her depression and the onset of alcohol abuse are matters which need to be considered in the light of the evidence given in this case.
There is no doubt that when being examined by Mr Phillips on the 25th June 2009 the plaintiff told him that she was unable to do any gardening. She has stated in her evidence that this was incorrect. That was conceded in the light of evidence that four days after her examination by Mr Phillips she had been observed by a private investigator mowing the grass at the front of her house and she was filmed doing so. I have viewed that video evidence and it is certainly apparent from it that she performed that task with relative ease. Indeed she is also to be seen carrying the mower back into the house having completed the task, and she is to be seen also sweeping up the grass and other garden debris. All of this involved bending and lifting. However, it should also be noted, as is accepted, that the mower in question was an electric mower and not a heavy one. My observation of the video indicates also to me that while she was able to bend down to collect garden debris and sweep it up, she was not totally unrestricted in her movements. She was taking some care in relation to how she bent.
I will return to this video footage in due course and to the comments made by Mr Bough and others in relation to it.
There is evidence on the Clinical notes dated 11th July 2005 that an X-ray was taken of her lumbar spine and that she had at that time significant degeneration at L4/L5. There is also a statement on these notes that at that date, ten days post accident, she complained of back pain, and that an examination on that date disclosed minimal flexion, although the doctor at A&E notes also that when sitting on a couch with knees straight her Straight Leg Raise test was “normal”. This normal test is submitted by Mr McDonagh to contradict her subjective complaint of back pain on that occasion, and that she had no significant injury to her back in this accident. He referred also to the fact that her own GP, Dr Quigley who treated her for complaints following this accident makes no reference to back complaints. However the plaintiff has stated that she had back pain during that time and that she was dealing with it herself by applying heat by means of a hot-water bottle.
The plaintiff was in due course in June 2007 referred by her GP to Mr Bruce Bough, a Consultant Orthopaedic Surgeon at Clane General Hospital and The Charlemont Clinic in Dublin. He has provided three reports dated respectively 14th June 2007, 10th June 2008 and 25th June 2009, and has given evidence to the Court.
In his first report following his first clinical examination on the 12th June 2007 he states that “clinical examination implicates the Lumbar facet joints” and he noted that the plaintiff “sits in a position designed to protect the Lumbar Facet joints and experiences pain on typical movements which stress these”. In his second report he has opined that the accident on 1st July 2005 exacerbated previous back problems and produced new symptoms localised at L5/S1 with central and left sided low back pain with left leg sciatic pain radiating down to the left knee.
Mr Bough arranged an MRI scan which, he reports, noted mild to moderate degenerative changes in the lower lumbar sacral spine with some disc bulging at L3/L4 and facet joint degeneration. This scan showed also a posterior and left sided disc protrusion at L5/S1 which was encroaching on the left exit foramina and left lateral recess and to a lesser extent on the right exit foramina together with a degree of compression on the anterior aspect of the thecal sac at this level.
His opinion by June 2008 was that the L5/S1 prolapse superimposed on the pre-existing degenerative changes is “entirely consistent with the clinical history and findings”.
In his report in June 2009, Mr Bough notes ongoing sciatic pain with difficulties arising from any activities which involve bending which compress this region of the spine. He is of the view that a discectomy will have to be considered but that the plaintiff may not be the best candidate for such a procedure. He believes that the plaintiff’s difficulties clearly relate to nerve root irritation and is chronic.
In his evidence Mr Bough saw nothing contradictory or inconsistent arising from the fact that on one day the SLR test was normal while on another the plaintiff was able to sit up at right angles, or even that on the same day her Straight leg raising was resisted at approximately 30 degrees bilaterally, yet she could sit on the couch at almost right angles, as noted by Mr Hurson. He is of the view that symptoms of this kind can vary day to day depending on recent activity.
He was asked also about her having been observed cutting grass and lifting her mower, as outlined above. His view was that while it may be foolish for her to do this, she may have felt on that day that she could, and she might “pay for it a week after”.
Mr McDonagh cross-examined Mr Bough and suggested that there was no evidence that the plaintiff’s disc prolapse was a result of this accident. Mr Bough stated that it is likely that this disc prolapse occurred as a result of the accident because it did not show up on the x-ray of the lumbar spine taken after the accident. His view is that this x-ray showed degenerative changes at L4/L5 pre-accident, and since the prolapse was disclosed only on a later MRI scan it must flow from the injury sustained there being no other reported incident. He did not agree that if she suffered a prolapse as a result of this accident it would have resulted in the plaintiff not being able to perform a normal Straight Leg Test on the 11th July 2005. He explained this in more detail in his evidence, and stated that it can be weeks and months before cartilage material might emerge through an annular tear. He stated that it was possible that the dramatic forward flexion caused to the lumbar spine in this impact caused a tear in the annulus, and that at some later stage the actual prolapse occurred. Mr McDonagh referred Mr Bough to Mr Hurson’s examination of the plaintiff on the 18th June 2009 when he reported the plaintiff as having near normal flexion and that she could sit up to almost right angle i.e. 75 degrees. However, Mr Bough regards this as consistent with a back which is not normal. He is also of the view that simply because a junior doctor at A&E on the 11th July 2005 reported that the plaintiff had minimal flexion but was able to fully flex while seated on a couch is inconsistent with what is reported to be a normal Straight Leg Test. He is uncertain as to whether these brief notes indicate that a proper SLR was actually performed by the doctor in question.
Mr McDonagh suggested that these notes are in fact consistent with Mr Bough’s own notes resulting from the SLR he himself performed in June 2007 when he reports “Straight Leg Raise was normal bilaterally. No neurological abnormalities were detected in the legs”. Mr Bough again stated that the plaintiff’s difficulties can vary from day to day and that his SLR is just a snapshot of how she was on that day. When it was suggested that this test was indicative that she had no disc prolapse, he stated that the plaintiff has a significant back problem, and that his examination on that date clearly showed that she had tenderness over the paravertebral and facet joint regions at L4/L5, being the area of the prolapse which was discovered on the MRI scan subsequently carried out. He denied that the clinical examination carried out on the 11th July 2005 meant that she could not have had a prolapse on that date, and he knew of no other traumatic incident since the accident which could account for the prolapse.
The cross-examination of Mr Bough was interrupted so that he could have an opportunity of viewing the video evidence of the plaintiff’s gardening activities on the 18th June 2009, and so that he could be questioned in relation to same. It will be recalled that Mr Phillips had examined the plaintiff just four days prior to the date on which this video was taken, and, as it happens, Mr Bough saw the plaintiff on the day following the date of the video, namely on the 23rd June 2009. It was suggested to Mr Bough that this video footage indicates that the plaintiff showed no outward signs of disability. However, he disagreed and stated that during the eighteen minutes of video he had just seen there was virtually no movement in the lower back. He described her as spending the whole period of time “slightly flexed forward with an absolutely rigid lower back and made all movements with her arms”. He did not consider that this footage showed a normal range of movement, and made the point also that the mower seemed light in weight. He is of the view that the footage shows a woman who has a back problem.
I have to make a judgment both from these observations, and her own evidence and her demeanour, and the other evidence given, as to whether the plaintiff was deliberately attempting to mislead Mr Phillips and the Court when she stated that she could no longer do any gardening and household chores. On balance I am of the view that while it was not correct to state that she could no longer do any gardening, she was not deliberately trying to exaggerate her symptoms and disabilities. She has stated that on most occasions it is her husband who would do the gardening, and that she has difficulty doing jobs around the house such as hovering. She has stated that it very much depends on how her back is at any particular time. I am not inclined to penalise her in relation to stating so categorically to Mr Phillips that she can do no gardening, even though she ought to have given a more comprehensive answer to his questions in that regard. I would have to be satisfied that she consciously and deliberately exaggerated her difficulties in order to mislead this Court and Mr Phillips, and I am not so satisfied on the balance of probabilities.
Mr Jack Phillips, Consultant Neurosurgeon, gave evidence on behalf of the defendant. He examined the plaintiff on the 25th June 2009, three days following the taking of the video footage of the plaintiff cutting grass and brushing in her front garden.
Having set out in his report the history as given to him, he describes the plaintiff as being on examination “a pleasant cooperative somewhat frail lady with depressed effect”. He describes her complaints as given to him, including that “gardening is no longer possible”.
He goes on to state that his physical examination was “completely inconsistent” in that during her conversation with him she moved her head and neck regularly but that on formal examination she had a 90% restriction in all directions and was almost totally unable to elevate her left arm above shoulder level. She also had minimal resistance in extension and flexion of her upper limbs on formal examination. He noted also that she was “almost completely unable to bend her back”. He states also that the symptoms of degenerative disc disease revealed in the MRI scan “have only occurred in the last year and do not appear to be related to the accident of 1/7/2005”. He is of the opinion in his report that the plaintiff suffered minor soft tissue injuries in this accident, and that her “clinical presentation today to me is largely psychosomatic” and that “subjective symptoms although genuine are in all probability related to a pre-existing degenerative disease of her spine associated with disuse atrophy of her supporting musculature”.
In his evidence to this Court he stated that her responses were exaggerated and resulting from an anxiety or distress or neurosis, which, while understandable in the light of her nervous breakdown and nervousness generally, nevertheless makes it difficult to pinpoint any permanent structural injury. He is of the view that there is no such structural infirmity as would explain her subjective symptoms. He is of the view that the accident caused her an injury only to her neck and to her sternum, and while there may have been some soft tissue injury to her lumbar back, the history of sciatic pain appears to be more recent than can be related back to the accident.
Mr Phillips was asked to comment on the evidence of Mr Bough, which he was present for, and to the suggestion that the plaintiff suffered a disc prolapse as a result of this accident. He is of the view that none of the features of a prolapse are present with the plaintiff such as a limp, a straight leg raise of, say, 45 degrees, an absent ankle jerk and so on. He feels that the clinical finding by Mr Bough in June 2007 that the plaintiff’s SLR was normal bilaterally and that no neurological abnormalities were detected in the legs, indicates no nerve damage i.e. sciatic nerve damage because she had no neurological deficit.
He was asked also to comment on the video footage which was taken just three days before he examined the plaintiff. He does not believe that a person with the sort of shoulder complaint she has would be able “to swing the lawnmower in such a fashion”. That is a reference to the mower being of a ‘hovver’ variety requiring the user to swing it from side to side rather than simply push it as with other models. In relation to her being observed bending down to pick up leaves etc. he felt that the movements which he observed in the video “were exceptionally freer when she was gardening in comparison to what she presented to me”. He stated that the way she bent down and moved was certainly not consistent with “the restricted back of an acute disc prolapse”.
Mr Phillips was asked about the relationship between the x-ray finding of degenerative changes at L4/L5 on the 11th July 2005 and the result of the MRI scan which showed the prolapse at L5/S1. He explained that the latter is a new finding some three years after accident, and went on to state that the majority of prolapses can occur in the absence of trauma. This statement was made in response to Mr Bough’s contrary evidence that prolapses will occur following trauma. He disagrees with Mr Bough in this regard. In his own extensive clinical experience treating patients with sciatica, he is constantly surprised how many will have no history of trauma, and that they will typically have some degenerative disc disease and “at some stage with or without trauma the annulus which surrounds the disc collapses, when a person gets a disc protrusion”. He went on to state that “the statistics are more in favour of people having spontaneous disc prolapse than those who have trauma”.
By way of further clarification of what he meant he stated that in road traffic accidents which involve modest impact not many would suffer an acute prolapse; whereas if a man falls on a building site or has a traumatic event there is more likely to be a disc prolapse. He regarded it as rare to see an acute disc prolapse in a whiplash type of injury.
He did not regard the fact that the plaintiff had underlying degenerative changes at L4/L5 as predisposing her particularly to a disc prolapse at some stage, though the risk was greater. He concluded by stating that the most helpful thing he could say in relation to the plaintiff is that “if that L4/L5 disc had popped out of place after that event the lady would have had sciatica going down in an S1 distribution to her left foot and she might have had signs to support those symptoms and she certainly would have merited a scan early on”. He would have expected symptoms from a disc prolapse to have presented themselves within days or weeks of the accident. He does not believe that the L5/S1 symptoms have been caused by this accident because she had no such symptoms in the early aftermath of the accident according to her medical history.
Mr Phillips was cross-examined, inter alia, about his conclusion that the plaintiff’s symptoms were to an extent psychosomatic. He agreed with James Gilhooly SC that this did not mean that he was of the view that she was deliberately exaggerating her symptoms.
He was also questioned about his view that the disc prolapse at L5/S1 is not related to the injury suffered in this accident. Mr Gilhooly referred to the severe nature of the impact in this accident, and her complaints at the time of pain in her back in the aftermath of the accident. He referred also to the history of existing degenerative change at L4/L5 and the fact that she had had back difficulties during her earlier pregnancies but had had no more recent difficulties in that regard. He suggested to Mr Phillips that it was probable therefore that what was asymptomatic immediately before the accident was rendered symptomatic by the impact. Mr Phillips maintained that since there was no neurological injury, broken bone or slipped disc, or other structural defect found, what she suffered were soft tissue injuries, whatever her subjective complaints were.
He was referred also to some records made by a physiotherapist who treated the plaintiff but who did not give evidence to the court. Those records noted restriction of straight leg raising at 70 degrees bilaterally at an examination on the 25th August 2005 nearly two months after this accident. Mr Phillips interpreted this as meaning simply that the plaintiff had some restriction of movement in her back but stated that it did not mean that she had sciatica. He described this finding as meaning that she had back discomfort manifesting itself on examination. He reiterated his view on cross-examination that the clinical presentation now is consistent with a later onset of sciatica related to a progressive L5/S1 disc prolapse which she did not have in the eighteen months following the accident. However he agreed that he could not say that the disc prolapse was not, to some extent, the result of the trauma suffered in this accident.
Mr Brian Hurson, Consultant Orthopaedic Surgeon, gave evidence on behalf of the defendant, in line with his report dated 18th June 2009, which, as already stated, was four days prior to the videoed observation of the plaintiff in her garden. He noted as part of the plaintiff’s history, as given to him by her, that over the days following this accident she developed increasingly severe pain in her low back as well as her neck. On examination he found that she had near normal flexion, extension and lateral bending. He noted also that that straight leg raising was resisted at approximately 30 degrees bilaterally, but noted also that she was able to sit up almost at right angles. He noted that neurological assessment of her lower limbs was normal and that she had mild tenderness in her lumbar sacral region. His opinion as expressed in his report is that the plaintiff has aggravated a pre-existing degenerative arthritis of her lower lumbar spine and that she is likely to have persistent symptoms into the future. He states, however, that these symptoms are due to the fact that she had degenerative changes rather than being caused by the accident, and further that the accident would have contributed to her symptoms although it would not cause further deterioration of her degenerative arthritis.
In his evidence, Mr Hurson stated that the fact that the plaintiff could sit up at right angles when he was examining her meant that she did not have sciatica, and that while he was not sure if he knew at the time that a disc prolapse showed up on the MRI scan, she had no clinical indication of a prolapse when he saw her. He also stated that up to 50% of patients over 50 years of age will have some degenerative changes or prolapse. He disagrees with Mr Bough’s evidence that this prolapse which she now has is related back to this accident. He would have expected the plaintiff to have symptoms consistent with a prolapse within quite a short period after the accident if it was so related.
In cross-examination it was put to him that the sternum injury may have masked symptoms of disc prolapse when she was first seen. Mr Hurson, to which he responded by saying that there can be some masking but it was not probable. While he accepts that the impact was a severe one, he does not believe, as a matter of probability, that the plaintiff’s symptoms are related to the accident, even though he agrees that her present symptoms are related to the prolapse shown on the MRI scan.
Psychiatric sequelae:
Dr Denis Murphy, a Consultant Psychiatrist, examined the plaintiff upon referral by the plaintiff’s solicitor who had concerns about her in this regard. He saw her first in March 2007 which was almost two years post accident. Dr Murphy has diagnosed post traumatic stress resulting from this accident. In his report dated 27th March 2007 he describes her as having become depressed as a result of the accident, as well as becoming a very nervous passenger so that she avoids any travel by car where possible. He notes sleep disturbance, nightmares, flashbacks, loss of appetite as well as episodes of weeping.
She has had no previous history of psychiatric treatment. Later reports note an improvement following treatment with medication, though she is still symptomatic, and that some symptoms are likely to remain. His final report dated 21st January 2009 refers to her alcohol abuse for a time.
In his evidence to this Court he refers to her as having told him that this accident as had been a life-changing experience for her, leaving her with a lot of residual persistent anxiety, mainly in relation to her safety on the road. He believes that she is unlikely ever to drive a car again in the future. He also gave evidence about a psychotic episode in the summer of 2008 which was caused by excessive drinking. She was hospitalised for about two weeks, and has since that time avoided alcohol, but Dr Murphy has stated that she was close to becoming an alcoholic.
As to the relationship between this incident, her excessive drinking, and her underlying post traumatic stress disorder, Dr Murphy was not the doctor who treated her for her psychotic episode in July/August 2008. But he was asked by Mr Gilhooly what was the cause of her drinking to excess in the summer of 2008. Dr Murphy was unable to say because he had no direct information on that (T.1, Q. 275).
Prior to that answer he had made a more general comment. In that regard he stated (T1, Q. 274):
“Well it means she mustn’t drink again, in theory. In a sense it was almost an intercurrent difficulty in terms of the progress of her PTSD, possibly related to, and again I have no direct information, but as I say it is possible it is related to it in that people with PTSD do sometimes drink to excess to assuage their symptoms. But I have no particular information that was the case here. But in any case, she did drink to excess and ended up with this supposed entirely different type of problem to the PTSD.”
While she recovered from this episode, she remains on anti-psychotic medication, but it would appear from Dr Murphy’s evidence that she has improved substantially so that she is now on the lowest possible dose before it is actually stopped altogether. Dr Murphy believes that she will continue to improve generally, but that in all probability she will not drive a car again. He believes that her fear of crossing streets will diminish as time passes, but that there will always be some residual anxieties in that context.
Dr Murphy was cross-examined and it was put to him that it appears from his reports that by February 2008 the plaintiff’s symptoms, such as flashbacks, nightmares had disappeared and that what remained was a preference to use public transport. Dr Murphy agreed that by February 2008 she had greatly improved, and that by May 2008 her mood was back to normal. This improvement had come about after just one year of treatment. He confirmed also that by June 2008 he was not aware that she was using alcohol and did not have concerns at interview that it was a problem for her or a factor in her life. In fact he had not been made aware of the psychotic episode in July 2008 and the fact that she was admitted to Tallaght Hospital for a two week period. It was not until he saw the plaintiff in January 2009 that he was informed about it by the plaintiff. He did not treat her in respect of that episode.
When cross-examined, Dr Murphy agreed that the cause of the psychotic episode was her excessive drinking. Earlier he had stated that it was ‘hallucinosis’ being a condition derived from excessive drinking. When it was put to him that its origins were therefore not related to her post traumatic stress disorder, Dr Murphy stated that was so, and added that “… the only possible connection is that people sometimes with PTSD do drink more heavily” (T.1, Q. 337). He went on to state quite specifically that he was not meaning to link the episode of psychosis directly to the accident (T.1, Q. 339), and to state that “I have no evidence at all to relate it to the accident” (T.1, Q. 341).
It should be recalled that the episode in question in July 2008 was about three years post accident.
Conclusions:
I have already concluded that the plaintiff should not be found to have attempted to exaggerate her injuries or her symptoms either by not having mentioned her previous back difficulties during her pregnancies, or by having said to Mr Phillips that she could do no gardening at all, in the light of the video evidence. I have dealt with that.
There is not much controversy about certain aspects of her injuries. It is accepted that she suffered a fracture of her sternum. That was no doubt a painful injury to sustain, and equally, her recovery from it will have involved a period of discomfort, including a difficulty with her breathing. But she has recovered from it and did so after a number of weeks.
She also injured her neck, and endured the normal sort of neck discomfort associated with a whiplash type injury. While an x-ray showed some degenerative changes in her cervical spine she was asymptomatic pre-accident. The accident aggravated this condition and she became symptomatic thereafter. She had a period of discomfort in her neck, shoulder and arms, and this will have caused her much inconvenience, and inability to perform certain household tasks. She has confirmed that her neck improved well and that she has fully recovered from that.
I am satisfied from the evidence and reports of Dr Murphy that as a result of this severe impact the plaintiff suffered post traumatic stress disorder and became generally depressed. I accept also her own evidence that for her this was a life-changing experience resulting in her becoming very nervous in a car, crossing roads and so on. Equally, I am satisfied from Dr Murphy’s evidence that she had significantly improved by February 2008, including as a result of medication which had been prescribed. She had not however lost her fear of being in a car and still was of the view that she could not ever drive again. Dr Murphy has confirmed that also. He believes that she may never drive again, and this must be accepted as a matter of probability.
But I am not satisfied that the plaintiff is entitled to compensation in relation to the psychotic episode she suffered in July 2008 and which resulted in her hospitalisation in Tallaght Hospital for two weeks in July/August 2008. Dr Murphy has reported that it occurred, having been told about it by the plaintiff when he saw her in January 2009, but he was quite clear that he could not directly relate it to the accident. I have set out what he stated in that regard, and while he has stated that people who have suffered PTSD can also abuse alcohol, I do not believe that it has been established to the point of a probability that in this case this was the cause of that episode and of her drinking.
The main point of controversy in this case is the injury to her low back and whether the disc prolapse shown on her MRI scan at L5/S1 can be as a matter of probability be attributed to this accident. I am satisfied firstly that she did in fact suffer pain in her back after this accident. It is noted on the clinical records for the 11th July 2005. These notes also show that an x-ray of her lumbar spine was carried out and that this showed degenerative changes at L4/L5. Her injuries were soft tissue in nature, but it is clear that she was asymptomatic in that area pre-accident, although she had a back problem during her earlier pregnancies. I am not satisfied that it is reasonable to conclude that she had a back problem in the time immediately preceding this accident. The earlier problems had cleared up following the birth of her last child. I am satisfied that the back complaint which she complained of after this accident is attributable to the accident on the 1st July 2005.
Her back continued to give her difficulty, even though Dr Quigley has not noted these complaints in his notes. I am satisfied to accept the plaintiff’s evidence in this regard, namely that her main concern at that time was her neck and sternum, and that these were the focus of her attention and that of Dr Quigley in the weeks and months following the accident. While she treated herself for her back problems with heat from a hot-water bottle, and achieved short term relief in relation to it, she continued to experience pain in her low back up to the time that she saw Mr Bough. It was he who investigated that further. An MRI scan showed a disc prolapse at L5/S1 as I have set forth. However that was not discovered until the MRI scan done in June 2007, which is some two years after this accident.
There has been controversy in this case about the straight leg tests performed, the results of which have at times been contrasted with her ability to straighten her legs to near right angle when stated on the couch. I do not believe that the apparent contradiction at times between a certain amount of restriction on the SLR test and the almost right angle achieved when seated on the couch are sufficient to establish that the plaintiff’s back problems lack clinical explanation. I accept that her back pain is clinically evidenced as a matter of probability. I do not regard them as established as merely psychosomatic, again as a matter of probability. I can see why Mr Hurson may have had reason to say what he said, but taking the evidence as a whole I am prepared to regard the back pain as clinically established and explained by the evidence of disc protrusion, and the degenerative changes in her lumbar spine.
But there remains the question of whether the disc prolapse at L5/S1 shown on the MRI scan in June 207 can as a matter of probability be attributed to the injury which she sustained to her back in July 2005. I appreciate that Mr Bough is of the view, on the plaintiff’s behalf, that it is so attributable, but I cannot disregard the fact that the evidence for this is some two years post accident. That is a very significant feature of the evidence in this case. Both Mr Hurson and Mr Phillips believe that the disc prolapse occurred independently of the accident, given the degenerative changes which pre-existed in a lady of the plaintiff’s age. They believe that such a prolapse can occur in the absence of a particular trauma. I have set forth the relevant evidence in relation to this issue.
On balance I prefer the view that this prolapse is not attributable to this accident. There was a considerable delay in the occurrence of prolapse. I accept the evidence that if the prolapse existed in the earlier aftermath of the accident she would have had considerably greater symptoms and greater pain at that time, and that what she endured is explicable by reference to the aggravation of her pre-existing degenerative changes. I accept also that these degenerative changes, on the balance of probabilities, led to the occurrence of the disc prolapse.
Having said that, it is clear that the plaintiff suffered considerably and over a lengthy period with pain in her back. But the injury which she suffered remains a soft tissue injury in so far as it can be linked to the accident itself.
Damages to which the plaintiff is entitled must cover the whiplash type injury to her neck, her fractured sternum and recovery period, her depression, anxieties around traffic and post traumatic stress disorder from which she has substantially recovered, though not completely, her inability/unwillingness to drive a car, as well as her soft tissue injury to her back which made her pre-existing degenerative changes symptomatic earlier than they would otherwise be. But I exclude from consideration the onset of alcohol abuse and the psychotic episode described, and also the disc prolapse.
There are a number of elements to the plaintiff’s claim. Taking account of these elements which I have set forth, as well as the general disruption to her life and the interference with her ability to do housework, I assess general damages for past pain and suffering in the sum of €75,000. She is entitled to damages for future pain and suffering to the extent that pain which she would have in any event suffered at some stage as a result of her degenerative changes in her lumbar spine has been brought forward in time. Account is also taken by me of the fact that her anxiety and fear in relation to driving a car will persist indefinitely. In respect of these aspects of future pain and suffering I assess a sum of €20,000.
The total of damages therefore is €95,000, and I will enter judgment in favour of the plaintiff for that sum.
McCahey v MIBI
[2009] IEHC 349
Judgment of Mr. Justice Birmingham delivered the 15th day of July, 2009.
1. The background to this case is that on the 1st April, 2006, the plaintiff, a sixty-five year old retired gentleman was cycling his bicycle along Chapel Street, in Carrickmacross when a car pulled out from a parked position, striking him, causing him to fall from the bicycle and to suffer injuries, including a broken leg.
2. On the basis that, he says, the driver and owner of the vehicle remain untraced, the plaintiff has brought proceedings naming the Motor Insurers Bureau of Ireland as defendant purporting to do so pursuant to the terms of the agreement between the Minister for the Environment and the Bureau dated the 31st March, 2004.
3. In the course of its defence in para. 8, the defendant pleaded as follows:-
“The defendant denies that it, its servants or agents were negligent or in breach of duty including breach of statutory duty as alleged or at all. The said defendant denies that same occurred as a result of the negligence or breach of duty or breach of statutory duty or wrongful act of an unidentified or untraced motorist but were caused or contributed to by the negligence and breach of duty and breach of statutory duty and wrongful act of an identified motorist for whose actions or otherwise, the said defendant cannot be held responsible.”
This matter is put even more starkly in paragraph 2 where it is pleaded that the accident was caused by the negligence and breach of duty of a named individual, to whom I will refer throughout this judgment as John Doe.
4. This issue arises in these circumstances. According to the plaintiff the vehicle that injured him was driven off after the accident. While he was in a shocked and traumatised state, having been knocked from his cycle, he was anxious to get the registration number of the offending vehicle. He attempted to make a mental note of the registration number involved and then in a situation where he had a Lemsip carton in his possession, which apparently he had just purchased, he wrote down on it what he believed to be the number.
5. Following the accident, the plaintiff was able to make his way home. When he reached home the Gardaí and an ambulance were summonsed. The Garda who responded to the call Garda (now Sergeant) Martin, spoke to Mr. McCahey, but in a situation where Mr. McCahey was obviously seriously injured and in distress, he did not feel it appropriate to take a statement at that stage, but decided to defer this.
6. Ultimately, he did speak to the plaintiff about a month later, the exact date on which the statement was taken, is not recorded. The statement taken down by Garda Martin which was signed by the plaintiff states the vehicle involved was XX00XX [full number provided], it was a silver car.
7. On foot of this information, the Gardaí traced the vehicle which bore the registration number that they had been given and within a few days spoke to the person believed to be the usual driver of the vehicle, a male living locally. This person confirmed that he was the usual driver. The vehicle is insured in his wife’s name and it appears that the car is also registered in her name. In the course of that statement the interviewee is recorded as saying that his wife whom he names is the owner of the car of that registration number and that it is a silver Toyota Avensis. He says that he does not recall his exact whereabouts on the 1st April, 2006 but that he honestly doesn’t believe that he was on Church Street on that date. It appears that Church Street and Chapel Street are used interchangeably locally. He says that he doesn’t recall coming into contact with any bicycle and if it did happen, he would have reported it straight away to the Gardaí and that he doesn’t believe he was involved in the incident. It appears that some time after this, the interviewee made contact with the Gardaí once more, and made a further statement in which he says that he had recalled something after discussing the incident, that Sergeant Martin had spoken about to him with his wife. He went on to say that one evening, possibly a Saturday, he was walking towards the Chapel when he saw a man stopped on his bike standing. He asked him was he alright and he answered “I ran into the back of a car”. The interviewee reiterated that he still has no recollection of anyone hitting his car.
8. In the course of evidence, Sergeant Martin explained that a file had been submitted to his superiors and a decision was taken that there was insufficient evidence to proceed with a criminal prosecution. He also indicated that the interviewee was someone whose statement he himself would believe.
9. On the 27th July, 2007, in accordance with procedures usually followed, the plaintiff was interviewed by an insurance official acting on behalf of the bureau. In the course of this statement he is recorded as saying;
“The car stopped in front of me. I saw its brake light come on and then release. He did this twice and moved away a little. I knew it was going to leave. I decided to get its number. I wrote the registration down on the box of Lemsip with a pencil. I was on the ground. It was two car lengths away approximately and my glasses were still on. The car drove away. She drove away as soon as I stood up. I had to use the bike as a support. I had no weight on my leg. I could not see the driver. It was a silver grey car. It was Japanese, but I’m not sure of it. After car drove off John Doe [actual name provided] came running. He appeared from Joan’s new house on the left side of the street, the opposite side of the street to the church. He shouted “Pat, Pat are you alright.” He was flustered. He was 100 feet away from me. I did not speak back to him.”
10. Later in the statement the plaintiff commented, “I know John Doe. He grew up near where the accident happened. I got John’s father a job once and John knows me”.
11. On behalf of the defendant, emphasis is placed on the fact that the vehicle, the registration number of which was given by the plaintiff is in fact a silver car of Japanese make and it is said this should have been seen as a strong indication that what was recorded on the Lemsip box was reliable.
12. In the course of cross-examination of the plaintiff, it was in effect put to him that a decision had been made to exempt John Doe and his family because he was known to the plaintiff and the Doe family and McCahey family were known to each other. For my part I regard that suggestion as unlikely. It doesn’t seem consistent with the fact that about a month after the accident, the plaintiff was providing the Gardaí with a registration number, and a description of the car, and fourteen months later he was telling Mr. Mulligan of MIBI how he had written down the registration number on the lemsip box and was introducing John Doe into the situation as someone who had spoken to him in a flustered state after the accident, at the scene
13. In that regard, I feel bound to say, the plaintiff did not present as an impressive witness. On the contrary, he was both evasive and obstructive. Notwithstanding the unimpressive demeanour of the witness it seems to me unlikely that was the case. First of all, there is a degree of improbability in a suggestion that a plaintiff would jeopardise his claim and certainly make it more difficult to process by excluding a culprit from the picture deliberately. In a situation where at some remove from the accident he provided the Gardaí with a registration number and letters that he said he had recorded and gave a description of the vehicle involved which had the effect of leading the Gardaí to John Doe, this seems more unlikely. He then followed this up by making himself available for interview with a representative of the bureau as he was obliged to do and in the course of that, interview gave an account of the aftermath of the accident which served to bring Mr. John Doe into the picture. Why would he do that if the intention was to write Mr. Doe out the script?
14. Mr. Barton, SC on behalf of the bureau makes the point that the bureau is a fund of last resort, a proposition which is clearly correct, having regard to the express terms of the 2004 agreement and that accordingly it was necessary and appropriate that the plaintiff launch proceedings against John Doe and/or Mrs. Doe.
15. He accepts that the plaintiff would have had to advert to the possibility that involvement would be denied and that, accordingly, as a matter of prudence would also have to issue proceedings against the MIBI. Had that happened, then in accordance with the decisions in Feeney v. Dwane and O’Connor and Feeney v. MIBI. (Johnston J., as he then was, July 30th, 1999), the cases would have been heard at the same time. He said this would have been advantageous to the defendant.
16. Mr. Barton, has sought to rely on the decision of Stephen Lynch v. MIBI, the 10th May, 2005, a decision to which both sides have referred as being supportive of their case. Mr. Barton draws attention in particular to a sentence at p. 3 of the judgment of Macken J. as follows:
“I read that obligation as being no more than one which is intended to ensure that all appropriate parties who might have a liability are proceeded against.”
He argues that the Does were persons who clearly might have a liability and therefore ought to have been proceeded against.
17. While both sides have drawn comfort from the Lynch v. MIBI decision, I, for my own part do not find it of great assistance. The factual background, one caused by the presence of oil on the roadway and the legal submissions forming the backdrop to the judgment which were that there was an onus on the plaintiff to establish that the oil had not been deposited by an exempted vehicle, means that the case is rather distant from the present.
18. Ms. Patricia Moran, SC on behalf of the plaintiff says that the position is that the driver was and is untraced. She says that the plaintiff and his advisors were entitled to be guided by the Gardaí, who having investigated the matter, took the view that the identity of the culprit had not been established. Caution is, in my view, required in such a case in relying on the conclusions of the Gardaí. They are investigating the matter with a view to a criminal prosecution, where if it is to proceed they would be under an obligation to prove their case beyond all reasonable doubt. The high onus required of them in a criminal case, must inevitable mean that there will be cases where they conclude, that notwithstanding the depths of their suspicions that it would not be reasonable to expect a conviction beyond reasonable doubt and that accordingly it would not be responsible to proceed with the prosecution.
19. In this case the Garda investigation would seem to have been quite a limited one and there was certainly nothing in its outcome, which forced a conclusion that in civil proceedings it would not be wise to proceed against the Doe family members.
20. In a situation where the plaintiff and his advisors concluded that the identity of the driver had not been established with sufficient clarity so as to justify the issue of proceedings, even if the situation is, that other plaintiffs and other advices may have concluded differently, what is the position? It seems to me that the plaintiff does not lose his right to look to the MIBI by reason of making a tactical judgment, even if it is not the judgment that would be made by others. In that regard the provisions of s. 3.10. of the 2004 agreement are relevant to this issue. This section provides as follows:-
“If so required by MIBI and subject to full indemnity from MIBI as to reasonable costs, the claimant should take all reasonable steps against any person whom the claimant may have a remedy in respect of or arising out of the injury or death or damage to property, provided that any dispute as to the reasonableness, of a requirement by MIBI that any particular step should be taken to obtain judgment against any such person shall be referred to the Minister whose decision shall be final.”
21. In this case the MIBI did not make any requirement of the plaintiff. All they did do, was to point out that Mr. Doe was insured with Hibernian Insurance and it was their belief that the Hibernian’s Insurance Company inquiries were continuing. In fact the plaintiff’s solicitor had already been in touch with Hibernian Insurance who had responded that their investigations to date had failed to show that liability was attached to their insured and that their driver had no recollection of the incident.
22. In a situation where a plaintiff and his advisors have formed the view that they have insufficient evidence to proceed against a party, who may be the subject of suspicion, they are not to be blamed for deciding not to proceed.
23. Had MIBI wanted the plaintiff to proceed against Mr. and Mrs. Doe, it was open to them to make a requirement under s. 3.10 of the 2004 agreement and provide the appropriate indemnity in relation to costs. This was, after all, a case where there was a clear disagreement. The Bureau believed that the state of the evidence was such that proceedings should issue against the Does, while the plaintiff and his advisers took the contrary view. When the MIBI failed to do that it became a matter for the plaintiff’s judgment as to how to proceed. In choosing to proceed as they did, they ran the risk that it would be established on the balance of probabilities that the accident was the fault of the Does, which would have seen these proceedings fail. However, that has not happened. A cloud of suspicion, has undoubtedly been cast over the Does, but it does not go beyond that.
24. In these circumstances I am of the view that the plaintiff is entitled to succeed against the MIBI and accordingly I turn to the question of quantum. In the accident the plaintiff suffered a fracture of the right tibia, as well as fractures to the third, fourth and fifth metatarsals. He was detained in hospital for a couple of days and thereafter his injuries were treated by him being put in a cast.
25. The initial prognosis was that symptoms would improve over a period of twelve to eighteen months. It wasn’t expected that he would develop any long term sequelae as a result of the fractured tibia, but it was the expectation that he would complain of intermittent right foot pain. However, the plaintiff’s account of how he actually faired would suggest that this was somewhat optimistic. He says that he continues to experience significant pain and discomfort. He says that his ability to walk any distance, though not to cycle has been effected. He has been advised to use a particular form of insole. While he states that he has compiled with this request, some hesitancy in this regard would seem to emerge from the medical report. At present he walks with a slight limp.
26. All told, the plaintiff has had a not insignificant difficulty over the past three years and these persist. It is very likely that some degree of discomfort will persist into the future and that he will continue to experience the after effects of the accident. However, with the passage of time, this can be expected to lessen somewhat. In all the circumstances I will assess general damages to date in the sum of €30,000 and damages into the future in the amount of €37,500, making a total of €67,500.
Nelson v McQuillan
[2013] IEHC 152, O’Neill J.
JUDGMENT of O’Neill J. delivered on the 8th day of March, 2013
1. In these proceedings, the plaintiff sues the defendants for damages for negligence arising out of the medical and obstetric treatment of the plaintiff in the latter stages of a pregnancy and the delivery of her son, Joshua, on 24th February 2000. This delivery took place in Our Lady of Lourdes Hospital in Drogheda. The first named defendant is the nominee of the HSE which controls this hospital. This second named defendant was a doctor in this hospital who treated the plaintiff. The fourth named defendant was the plaintiff’s General Practitioner at the relevant time during her pregnancy. The action has been struck out as against the third and fifth named defendants. On the eighth day of the trial, the action against the fourth named defendant was withdrawn.
2. The plaintiff’s case is that she suffered a symphysiotomy (a splitting or separation of the symphysis-pubis) towards the end of her labour or in the course of delivery of her son, and that this occurred because of the negligence of the doctors who treated her in the first named defendant’s hospital in failing to have diagnosed on 2nd February 2000, when she was admitted overnight, or on 23rd or 24th February, that she was suffering from a condition known as symphysis-pubis dysfunction (SPD) and consequently failed to take the necessary precautions to have prevented that condition advancing or deteriorating to a symphysiotomy during labour and delivery.
3. It is the plaintiff’s case that she has never recovered from this symphysiotomy, and as a consequence, she has endured severe pain since then in her pubic area and has had to undergo in 2004, surgery to stabilise her pelvis, and as a consequence of the pain and stress associated with her condition has developed a condition known as fibromyalgia and also depression. Since then, she has become addicted to alcohol which she found eased her pain and she has been unable to work since the twenty-fourth week of her pregnancy and she claims her entire life has been transformed and degraded as a result of suffering this condition.
4. The symphysiotomy was diagnosed on 26th February 2000 by a Dr. Akpan, a consultant in the first named defendant’s hospital. The condition of symphysiotomy as described in the expert obstetric evidence involves a separation of the symphysis-pubis. In pregnancy, it is normal for the cartilage-type material which joins the three pelvic joints together to soften and slightly expand, thereby facilitating safe delivery. In approximately one in thirty pregnancies, a condition known as symphysis-pubis dysfunction (SPD) occurs. This condition involves an expansion of the symphysis-pubis joint beyond what would be considered normal and can cause pain and discomfort. If the expansion progresses further, the condition is described as Diasthesis and is obviously a more severe version of SPD. If the expansion of the symphysis-pubis joint goes beyond 10mms, because of the inherent non-elasticity of the connecting tissue in the joint, it means that this tissue has separated from the bone to a certain extent, either partially or totally, and it is this state of affairs that is symphysiotomy. The spontaneous occurrence of symphysiotomy in pregnancy or labour is extremely rare. When it does occur, most sufferers recover on a conservative therapeutic regime involving rest and the wearing of a brace. Recovery normally takes up to about three months. In a small number of cases, amongst whom, unfortunately, the plaintiff must be numbered, recovery in this way does not take place and surgical intervention is required to stabilise the symphysis-pubis joint, but it would appear from the expert evidence that, in general, outcomes for these unfortunate persons tend to be poor.
5. In her evidence, the plaintiff said that from approximately week twenty of her pregnancy she began to experience very significant back pain. This was a novel experience for the plaintiff who had experience of pregnancy, having one child already, Shannon, who was born in 1995. She also had an ectopic pregnancy in 1996. As a result of this pain in her back, the plaintiff was obliged to give up her job as a chef in the Flathouse Restaurant in Navan. Around week 24 of the pregnancy, it was the plaintiff’s evidence that the pain in her back then shifted into her pubic area and was with her for the rest of her pregnancy. She described this pain as a severe pain coming up through her pubic area and as a shooting or sharp pain which could then subside to a dull ache-type pain. She said this pain afflicted her every day and when there, she would have considerable difficulty in walking. As the pregnancy progressed, all of this got worse and in the last three weeks of the pregnancy the plaintiff was virtually housebound, spending the day lying on a couch.
6. Evidence was given by a number of persons closely connected to the plaintiff, namely, her sister, Nuala Rogers; her brother, Tommy Nelson; her sister-in-law, Shirley Nelson and a friend, Georgina Blake, all of whom described the plaintiff at the latter stages of her pregnancy as suffering from this very severe distressing pain in her pubic area and of having considerable difficulty in walking as a result of that. Evidence was also given by Susan Kerwick, who lived in the same area as the plaintiff during the latter stages of this pregnancy. She did not know the plaintiff at the time but gave evidence of driving her children to school and seeing the plaintiff walking or shuffling very slowly along the pathway. Such was the impact that the plaintiff’s plight had on Ms. Kerwick that she stopped her car and offered to take the plaintiff’s daughter, Shannon, to school. In her evidence, Ms. Kerwick described having seen the plaintiff on a number of occasions walking very slowly, stopping and starting, and felt she would never get her child to school on time. It was on a rainy day that she felt compelled to stop to assist and this led to an arrangement whereby Ms. Kerwick brought Shannon to school every morning, collecting her from the plaintiff’s house. She described this arrangement as starting in about September/October 1999 and continuing through to close to the following summer.
7. The plaintiff, in her evidence, described an incident which occurred on 2nd February 2000, which is of great significance insofar as this case is concerned. On the occasion in question, the plaintiff was walking to her mother’s house. On the way, she became what can only be described as transfixed with this pain in her pubic area. The pain was so severe and disabling that she was unable to continue walking and remained, as it were, rooted to the spot for a considerable period of time. She was unable to call for assistance because her mobile phone was down. Eventually, having no other choice, she continued on her way very slowly, and arrived at her mother’s house in great distress. Because the pain continued, she and her family decided that she should go to hospital that evening. She was driven there. On arrival, she was unable to walk and had to avail of a wheelchair to get into the hospital. There, she complained of and described her pain and was admitted overnight. A variety of tests and checks were carried out which established that she was not in early labour. The pain subsided during the night and she was discharged the following day. She attended the wedding of a cousin of hers that day but did not stay late. For the remainder of her pregnancy, the plaintiff described herself as being, in effect, housebound, constantly afflicted with this pain and unable to undertake any activity, in particular, walking, and during the day as she lay on the sofa, was in effect, minded by her three-year-old daughter, Shannon. Eventually, on 23rd February, as she could bear the pain no longer and was in great distress, she was brought to Our Lady of Lourdes Hospital and asked for Induction of Labour. She was admitted and did in fact go into labour and delivered her son, Joshua, the following evening.
8. At the commencement of her pregnancy, when she went to the antenatal clinic in Our Lady of Lourdes Hospital for the first time at approximately six weeks gestation, she was given what is known as the “Care Card”. This is a card upon which all antenatal visits to the hospital and her General Practitioner were recorded. In total, the card records 19 visits. The visit to the hospital on 2nd February 2000 is not recorded on the Care Card. In addition, it would appear that the plaintiff visited her General Practitioner on 5th August 2099, 1st November 1999 and on a date in December 1999 when seen by Dr. Pauline Morrissey in respect of a chest infection. The plaintiff was also seen by a General Practitioner on 6th January 2000. Thus, the plaintiff was seen on four occasions during her pregnancy by her General Practitioner that were recorded in her patient chart but not in her Care Card. The plaintiff had in total, therefore 24 visits to either her General Practitioner or the antenatal clinic in Our Lady of Lourdes Hospital during her pregnancy. The plaintiff, in her evidence, said she visited the GP on several occasions, not recorded on the care card.
9. The plaintiff said that on all of the occasions she visited her General Practitioner from the time that she began to suffer from the pubic pain, she complained of this pain to her General Practitioner, and likewise, on all of her visits to the antenatal clinic in Our Lady of Lourdes Hospital she similarly complained of this pain. Insofar as her General Practitioner was concerned, the plaintiff said that on each occasion that she complained of this, she was asked had she made the complaint on her visits to the antenatal clinic in the hospital and when she replied that she had, her evidence was that the General Practitioner would defer to the hospital insofar as treatment of this complaint was concerned. Insofar as her complaints made in the antenatal clinic in the hospital were concerned, her evidence was that she thought these complaints were not taken seriously and she was advised merely to take Panadol.
10. It is apparent from the Care Card and from the plaintiff’s chart kept in the GP practice that there is no record whatever of any complaint made by the plaintiff of the pubic pain which she described in her evidence to this Court. In a request signed by Dr. Morris dated 9th November 1999 for an Ultrasound scan, Dr. Morris, under the heading of ‘Clinical Information’ records, inter alia, “Low pelvic pain, greater on left on walking”. Apart from this, there was no other recording of pelvic or pubic pain in any of the plaintiff’s medical records during her pregnancy until 2nd February 2000 when she was admitted to Our Lady of Lourdes Hospital, Drogheda overnight.
11. Before going on to deal with the plaintiff’s admission to hospital on 2nd February 2000, I would like to deal with the evidence of the plaintiff of her complaints to the various General Practitioners who saw her, namely, Dr. Pauline Morris, Dr. Potts, Dr. Gilsenan and finally Dr. Maguire, and also her evidence with regard to her complaints made to the doctors who attended her in the Antenatal Clinic in Our Lady of Lourdes Hospital, Drogheda.
12. As already remarked, and there was no dispute about this, none of the plaintiff’s complaints concerning pelvic or pubic pain was ever recorded apart from that recorded in the card requesting an ultrasound scan dated 9th November 1999, which was around week 25 of the pregnancy. Between 9th November 1999 and 2nd February 2000, the plaintiff had eight attendances recorded on her care card and two, namely, a date in December 1999 and 6th January 2000, recorded in her patient chart, in total ten attendances with her GP, or at the Antenatal Clinic in Drogheda. In spite of the fact, that at all of these attendances, a variety of problems or issues related to her pregnancy were recorded as having been considered and dealt with, there is no mention at all of any complaint of pain or discomfort relating to her pelvic or pubic area.
13. Apart from three attendances at the GP which were not recorded on the care card but were recorded in the GP notes, all of the attendances, both at the General Practitioner and also in the Antenatal Clinic, appear from the care card to have been scheduled appointments.
14. On 1st November 1999, in an unscheduled visit, the plaintiff was seen by Dr. Pauline Morris and complained of Haemorrhoids with bleeding and pain. The plaintiff was seen by Dr. Morris on 9th November 2011, who noted that she was well, that her Haemorrhoids were healing, but that she had a Trace Haematuria, and she ordered an Ultrasound Scan to check the placenta and on the request form recorded a complaint of low pelvic pain.
15. The attendance on 10th November 1999 records a complaint of haemorrhoids but improved and refers to a scan which, presumably, was the ultrasound scan requested the previous day. The usual array of tests on this occasion produced “nil” result. On 1st December 1999, it was recorded that there was “trace of blood in urine”. On 15th December 1999, no abnormality is disclosed. In an unscheduled visit on a date in December which is obscured by photocopying of the patient chart, the plaintiff was seen by Dr. Morris for a chest infection and was given a prescription for that.
16. On 29th December 1999, again, no abnormality was disclosed. On 6th January 2000, also an unscheduled visit, the plaintiff was seen for the first time by Dr. Maguire. The patient’s chart records a complaint of difficulty in voiding urine for four days, together with Dysuria and frequency. A review was arranged for two days, namely, 8th January 2000.
17. On 8th January 2000, no abnormality was detected and the plaintiff was described as “well”. Again, on 12th January 2000, the normal tests revealed no abnormality and the plaintiff was described as “well”. On 17th January 2000, the usual range of pregnancy tests were normal, but it was recorded “review BEC of oedema mild ankles”. On 26th January 2000, again, the usual range of pregnancy tests were normal, but again “mild ankle oedema” was recorded.
18. As is plainly obvious, these records are wholly inconsistent with the plaintiff’s evidence of having, on all of these occasions, and indeed on others unrecorded complained of very severe pain in her pelvic/pubic area which afflicted her every day and at times immobilised her. I do not accept the plaintiff’s evidence in this regard. I find it wholly incredible that complaints of the nature and extent of which the plaintiff gave evidence would have been ignored completely by approximately six different doctors between the General Practice and the Antenatal Clinic in the hospital. I accept Dr. Maguire’s evidence that no such complaints were made to him in the several attendances that he had on the plaintiff and I also accept that if complaints of this kind had been made to him, or indeed any other General Practitioner or hospital doctor, that it is highly probable that these complaints would have been recorded and dealt with.
19. There is no doubt that the plaintiff did complain of low pelvic pain on the left side while walking on 9th November 1999. It was never established what was the cause of this. I am quite satisfied, however, that a complaint of this kind was not repeated by the plaintiff until 2nd February 2000. I am also satisfied that in that intervening period, the plaintiff was not troubled by low pelvic/pubic pain as she has described in her evidence.
20. In saying all of this, I do not think that the plaintiff is in any way deliberately fabricating her evidence in this regard. In fact, having observed the plaintiff over several days in the witness box, I had the impression that she has a genuine belief in the truth and accuracy of the evidence she gave. However, I am satisfied that as a result of the devastating effect that the symphysiotomy has had on her life as a whole and the pain and suffering that she has endured since February 2000, together with the long passage of time that has elapsed in the meantime, she has convinced herself, and indeed perhaps others as well, that this pain was there since early November 1999 and that she was persistently complaining about it, and being ignored.
21. Five witnesses were called to support the evidence of the plaintiff as to the existence of this pain and the effects of it on the plaintiff over the last four months of the pregnancy. The situation which all of these witnesses describe is undoubtedly the situation that the plaintiff was in from the birth of her son, Joshua, onwards. Thereafter, there is no doubt whatsoever that the plaintiff had severe pain in her pelvic/pubic area which grossly compromised her mobility and which required her to use crutches, and indeed at times, a wheelchair. There is no doubt from the evidence of the plaintiff that she did not use crutches to get around during her pregnancy. Indeed, she complained in her evidence that she should have been advised to use crutches and also a fembrace in the latter stages of her pregnancy. Nonetheless, three of these witnesses, Laura Rogers, Georgina Blake and Anne Sherry Nelson gave evidence of the plaintiff using crutches to get around during her pregnancy. I am quite satisfied that their evidence in this regard is mistaken and that the recollections that they have of the plaintiff using a crutch probably relate to the plaintiff’s situation after the birth of Joshua. I am quite satisfied that these witnesses are not deliberately misleading the court and the inaccuracy of this evidence is almost certainly due to the long period of time that has elapsed since these events occurred and the distorting effect that that can have on memory. I am quite sure also that that the plaintiff’s plight in the years following the birth of Joshua must have been very distressing for all those who were close to her, no doubt enhancing a very natural inclination to agree with and support the plaintiff’s recollection of events.
22. Of these five witnesses, Ms. Susan Kerwick was not in any sense close to the plaintiff. She described how she became aware of the plaintiff because she saw her shuffling slowly out of the estate in which they lived, bringing her daughter, Shannon, to school. Eventually, on a wet day, she intervened and offered a lift. Thereafter, an arrangement was made by Ms. Kerwick to bring Shannon to school on a regular basis. The critical point in Ms. Kerwick’s evidence is that all of this began in late September or early October 1999. Whilst it may very well have been that the plaintiff had significant back problems at that stage, she undoubtedly had not yet developed the pelvic/pubic pain she complained of later. The plaintiff’s evidence was that the back pain she had been suffering moved around into her pelvic/pubic area in the twenty-fourth week of the pregnancy which was well into November. I am quite satisfied that the problem which the plaintiff had, which initially attracted Ms. Kerwick’s attention could not have been the pelvic/pubic pain of which she later complained.
23. In short, therefore, I have come to the conclusion that the recollections of these witnesses, apart from Ms. Kerwick, relate to the plaintiff’s problems after the birth of Joshua and not before.
24. This brings me to a consideration of the events that occurred on 2nd and 3rd February 2000, in week 37 of the pregnancy. The midwifery notes of the hospital disclose that the plaintiff referred herself to the hospital on the evening of 2nd February 2000. It is quite clear that this was an unscheduled attendance by the plaintiff at the hospital. The time of her arrival at the hospital is recorded as 19.30 hours and the note says the following:
“Self-referral with lower abdominal pain since last Thursday but a lot more severe today. On palpitation, fundus equals dates. Lie longitudinal, position LOA. Tracey complaining of dysuria ex approx 6 wks. Tracey also complaining of constipation. Commenced on CTG monitoring. B/P 135/85 P-120 CTG.”
25. This record reliably establishes that the plaintiff presented at the hospital at the time mentioned with a complaint of severe pain in her lower abdominal, a pain which had been present since the previous Thursday which was almost a week previously, the 2nd of February being a Wednesday.
26. The plaintiff’s evidence was that on 2nd February 2000, she had been walking from her mother’s house which would normally have taken her about twenty minutes, but in the course of that walk, she became immobilised by this very severe pain in her pubic area. She experienced the pain so badly that she could not continue to walk. The battery in her mobile phone was down so she could not call for assistance and was forced to continue walking to her mother’s house very slowly. The journey which would normally have taken her twenty minutes, on this occasion took her an hour and a half. When she arrived at her mother’s house, she was in great pain and distress. As the pain did not subside, she was later brought to the hospital by car by her partner. Her evidence was that to get from the car park into the Maternity Unit, she needed a wheelchair.
27. Later, on 26th February 2000, two days post-delivery, the plaintiff, having been complaining of pain in her left groin as noted in the midwifery notes, was seen at 13.50 hours by Dr. Akpan, a consultant. The midwifery note of this attendance is as follows:
“Dr. Akpan, consultant on call asked to R/V patient. Patient had this pain 4/52 before delivery. A symphysiotomy – mild degree . . .”
28. This record of the plaintiff’s complaint on 26th February 2000, ties in almost exactly with the complaint made and recorded on 2nd February 2000. The complaint made on 2nd February 2000 backdated the pain to Thursday 27th January 2000, almost four weeks before the delivery of Joshua on 24th February 2000.
29. The following is recorded as being the plaintiff’s complaint by a physiotherapist in the hospital who attended to the plaintiff on 27th February 2000:
“Had pain in groin plus pubic area for 6/52 pre-delivery – had been to GP numerous times but they felt that anx. Adhesions post-salpingectomy. Worse since delivery with feet in stirrups.”
30. I accept that the plaintiff did present to the hospital on 2nd February 2000, complaining of lower abdominal pain which had become severe on the day she presented and that this pain had compromised her mobility. I am also satisfied that the plaintiff dated this pain with precision on that occasion, namely, to the previous Thursday. In her consultation with the physiotherapist, as mentioned above, she extended the time period back an additional two weeks. I would be satisfied that her description and dating of this pain, as recorded on the 2nd February 2000, is probably a much more reliable and accurate account of this pain.
31. It is apparent from the midwifery notes as these have been interpreted by the experts who gave evidence in the case, Dr. George Murnaghan for the plaintiff and Dr. Peter McKenna for the first named defendant, that investigations were carried out, initially to see whether or not the plaintiff was in labour, and because the plaintiff complained of Dysuria, an MSU (Mid Stream Urine) test was carried out. By 21.00 hours, this returned as negative, and by that time also, it had been established that the plaintiff was not in labour. At 21.05 hours, the plaintiff’s blood pressure was 110/75, but her pulse rate was elevated at 128, probably indicating continuing severe pain. The plaintiff had been admitted to the hospital and was transferred to Unit 1. At 22.30 hours, the midwifery notes record that the plaintiff was reviewed by Dr. Jamel, who apparently found her condition satisfactory and encouraged her to mobilise.
32. Although the plaintiff was seen by two doctors, namely, Dr. Saeed and Dr. Jamel, neither of these made any note.
33. The plaintiff’s evidence was that her pain eased overnight when she slept and the following day she was discharged. She was seen the following day by Dr. Saeed. Having consulted this doctor for approval, the plaintiff attended the wedding of her cousin on 3rd February 2000, but did not stay late at it.
34. Dr. George Murnaghan, an expert obstetrician and gynaecologist called on behalf of the plaintiff, criticised the management of the plaintiff on this admission for the following reasons, namely, that having established that the plaintiff was not in labour and that the MSU test failed to supply any explanation for her pain, no further enquiry was made to ascertain the cause of the plaintiff’s pain, and specifically, having regard to the location of her pain, no consideration was given to the possibility of the cause of the pain being related to SPD (Synthesis Pubis Dysfunction) and the simple clinical test which can elicit this problem, namely, the palpation of the synthesis pubis joint, was not done.
35. Dr. Murnaghan’s evidence was that it was highly probable that as the plaintiff suffered a symphysiotomy in labour, probably during delivery, that the pain she had on 2nd February 2000 was caused by SPD and the failure of the doctors who attended her in the hospital on that occasion to have conducted any enquiry in that regard or performed the standard clinical test to ascertain or confirm SPD, was inadequate and unsatisfactory care of the plaintiff by these doctors.
36. Dr. Peter McKenna, the expert obstetrician and gynaecologist called for the first named defendant, in his evidence agreed that if the plaintiff presented with the kind of complaints she gave evidence of and with her mobility compromised and where she was not in labour, an inquiry should have been conducted to ascertain the cause of her pain, and if he had been there, he accepted he would, in these circumstances, have palpated her synthesis pubis joint.
37. The condition of SPD is relatively common in pregnant women. At the low end of the scale, namely, where it merely causes pain and discomfort during pregnancy, the evidence I have heard from the experts suggests it afflicts about one in thirty pregnant women. In its more severe manifestations, and in particular when it gets to a symphysiotomy, it is much rarer. In light of this, one would have thought that the doctors in a maternity unit, which is where the plaintiff was treated, would be familiar with this condition and alert to it and its symptoms.
38. Thus, it seems very surprising to me that in response to the plaintiff’s complaint of severe lower abdominal pain that the doctors who dealt with her on 2nd February 2000 do not appear at all to have considered SPD as a potential cause of her pain, made no enquiries whatsoever in that direction and failed to carry out what is a very simple clinical test, namely, the palpating of the synthesis pubis joint which would, according to the expert evidence I have heard, have elicited the condition if it was present.
39. I accept Dr. Murnaghan’s evidence to the effect that it was probable that the pain the plaintiff complained of on 2nd February 2000 was caused by SPD. I am also satisfied that the complete failure of the doctors employed by the first named defendant in this maternity unit on that occasion to consider, at all, SPD as a potential cause of the plaintiff’s pain and to make the necessary enquiries in that regard and to have carried out the necessary clinical test, was wholly inadequate and unsatisfactory care, in the sense that it fell beneath a standard of professional practice and care to be expected of doctors, albeit non-consultant hospital doctors practising obstetrics in a maternity unit.
40. After the plaintiff was discharged from the hospital on 3rd February 2000, she attended the wedding of her cousin but her evidence was she did not stay late.
41. From then until 23rd February 2000, her expected date of delivery, her evidence was, that she was, in effect, confined to her home, still continuing to suffer this very severe pain, spent most of the days lying on a couch being looked after by her three-year old daughter.
42. I would readily accept that in the last three weeks of her pregnancy, she was very uncomfortable and did spend a considerable amount of time lying down. I am, however, satisfied that the very severe lower abdominal/pelvic pain that brought her to hospital on 2nd February 2000 had subsided, and in that acute way, did not continue to trouble her over the final three weeks of her pregnancy. She may very well have had some ongoing ache and pain from this source, but in the overall context of her discomfort at this very late stage in the pregnancy, it was not an outstanding feature. I am compelled to this conclusion by the fact that in the final three weeks of her pregnancy, the plaintiff had three scheduled attendances; one at the hospital and two with her General Practitioner, Dr. Maguire. She attended the hospital at week 38 on 9th February 2000, where all the usual tests were normal and where she was described as “well”. It would appear she was seen by Dr. Saeed on that occasion. Next, she attended Dr. Maguire, again a scheduled appointment, on 15th February 2000. At that appointment, Dr. Maguire found that the plaintiff had a trace of protein in her urine and because she had a history of Toxemia and was approaching the end of her pregnancy, he thought it appropriate to bring her back in two days to monitor for the evolution of Preeclampsia. Thus, an appointment was arranged for her on 17th February 2000. When Dr. Maguire saw her on 17th February 2000, her tests and her blood pressure were in order and he noted that she was due to the clinic the following week, which would have been her expected date of delivery.
43. As is apparent from the care card, there is no note of any complaint by the plaintiff at any of these attendances between 2nd February 2000, and 23rd February 2000 of any complaint of pelvic or pubic pain. I accept the evidence of Dr. Maguire that the plaintiff did not make any such complaint to him, then, or at any time, nor was he ever asked to make a house call to the plaintiff during those last three weeks.
44. On 23rd February 2000, which was the plaintiff’s expected date of delivery and also a scheduled appointment at the hospital, as indicated in the care card, the plaintiff came to the hospital in considerable distress. Her complaints, as recorded on the care card, it would appear by Dr. Saeed, were: “Can’t sleep, in tears, wants IOL. Pressure and pain”.
45. The “IOL” it was agreed by all meant Induction of Labour. Although the plaintiff, at that time, was not in labour, her state of distress was such that Dr. Saeed considered it appropriate to admit her to Unit 2 for induction of labour at term.
46. Having been admitted, the midwifery notes records the following entry for 20.00 hours:
“Tracey Nelson is in admission from the clinic for induction of labour at term. Has previously had Preeclampsia in 1995 and Ectopic Pregnancy in 1996.
On admission
Fundus = dates.
Lie = longitudinal.
Presentation = V
X position = ROA
FHHR = 140bpm.
CTG commenced – same satisfactory at present.
On palpitation – quite tender around scar area when feeling for the head. Wishes to breast feed. Wishes for Epidural in labour.
Dr. Ghada informed of admission and will come up. Urinalysis trace.
Ketons + protein.
BP 120/82. P72. Ankle Oedema moderate.”
47. In her evidence, the plaintiff said that she complained vociferously of the pelvic/pubic pain that she said had afflicted her continuously throughout the latter stages of her pregnancy. Indeed, her evidence was that this pain continued to be present throughout her labour until the delivery of Joshua, whereupon she experienced approximately six hours of relief from it.
48. It is apparent that the midwifery notes from her admission at 20.00 hours on 23rd February 2000, until her delivery at 20.12 hours on 24th February 2000, do not reflect the complaints of pelvic/pubic pain as described by the plaintiff in her evidence. There is no doubt that when she presented to the Antenatal Clinic on 23rd February 2000, she complained of “pressure and pain”. Unfortunately, the note on the care card does not identify the location of that pain, although it appears to have been associated with pressure.
49. In common with the plaintiff’s evidence concerning her pain in the latter stages of her pregnancy, apart from 2nd February 2000, I have come to the conclusion that her evidence with regard to the presence of this pain during her labour and delivery is unreliable.
50. It is clear that overnight on 23rd February 2000, into the morning of 24th February 2000, the plaintiff went into spontaneous labour. This was apparent from an examination of the plaintiff by the labour ward sister at 06.45 hours on 24th February 2000. The first note concerning the plaintiff that morning was:
“Slept for short periods only. C-O crampy pains. CTG performed, same satisfactory. Did not wish to be examined. Panadol given . . .”
Whilst there was undoubtedly a complaint of pain, the description of it appears somewhat different to the pelvic/pubic pain of which the plaintiff complained in her evidence.
51. Throughout the morning of 24th February 2000, the plaintiff’s labour progressed slowly. At 9.45am, it was noted:
“Having irregular tightening at present. Coping well . . .”
At 10.00am it was noted:
“Comfortable at present. Contractions 1:3-4 lasting 20-25 seconds. No liquor draining.”
52. Further entries are made at 10.07am and 10.20am recording that ARM i.e. Artificial Rupture of Membranes was carried out resulting in clear liquor draining. This was performed by Dr. Umar who made a note accordingly, in a record entitled ‘Delivery’.
53. At 10.55am, it was noted in the midwifery note that the plaintiff was:
“. . . feeling contractions very strong, C/O of supra – pubic pressure. Positioned on bed on all fours. A small blood stained mucoid discharged. Liquor clear.”
54. At 11.15am, it was noted:
“. . . Tracey becoming distressed with contractions, and wishes to be re-examined.”
55. At 11.45am, the plaintiff was transferred to Delivery Suite Room 3 and a IV Cannula was inserted for the purposes of the Epidural. At 12.33pm, the anaesthetist inserted the Epidural. From then until 13.40 hours, there are seven entries in the notes which record some difficulty associated with the Epidural which seemed to interfere with the plaintiff’s breathing but resolved uneventfully so that by 13.40 hours, she was described as:
“Tracey sitting up. Colour good, resps. Normal 02 4 L/min being given by face mask. FH
Baseline 130bpm. Good variability and reaction. On palpation with Lie longitudinal presentation Cephalic VX N/eng clear liquor draining. Pain free. Epidural infusing at 4 mls./hr.”
56. Five minutes later, the plaintiff is recorded as “feeling dizzy” and the head of her bed was lowered. At paragraph 14.10, it is recorded that Dr. Ghada commenced IV infusion of Oxytocin.
57. At 15.45 hours, it is recorded that:
“Tracey beginning to feel contraction but bearable at present . . .”
58. At 15.55 hours, it is recorded:
“. . . feeling pressure in lower abdo region. Epidural increased 10 mls/hr e her permission.”
59. At 16.10 hours, the following is recorded:
“Feeling a lot of pain and pressure with contractions. Ve to assess consent. Chaperone Tara Shields. Cx remains posterior, fully effaced 3cm dilated. Vx + 1 station, no cord or placenta felt. Drained slightly bloodstained liquor during VE . . .”
60. At 16.20 hours, it is recorded that:
“Oxytocin raised 50 dpn. Dr. Nkayna asked to come and review re pain relief – he is busy at present, will come as soon as he can, meantime to increase Epidural to 15 ml . . . same done.”
61. At 16.30 hours, inter alia, the following is recorded:
“. . . no complaints of dizziness now or visual disturbances, feels moderate Oedema of feet and hands and says her face feels a bit puffy – she thinks this is from crying, was upset she hadn’t progressed more, reassured.”
62. At 17.20 hours, it is recorded as follows:
“Epidural top up given by Dr. Nkanya, BP 130/79. P137 post same – aware of rapid pulse rate – said it’s because of her pain.”
63. At 17.38 hours, it is noted:
“Pulse 173 bpm. BP 103/60
Not much pain relief from top up. Dr. Shiddo (reg.) and Dr. Nkanya asked to come and review in view of Tachycardia by Mary, Ita, Niall.”
64. At 17.45 hours, the plaintiff was reviewed by Dr. Nkanya and Dr. Shiddo who appear to take the view according to the note, that the plaintiff’s Tachycardia was related to pain and possible use of Entenox.
65. At 18.00 hours it was recorded:
“Tracey coping better now, pulse 122 bpm . . .”
66. At 18.35 hours, the note records:
“Tracey turned on (L) side. C/O pressure . . .”
67. By 19.30 hours, the plaintiff’s labour had progressed to the point of commencement of delivery as recorded as follows:
“Very distressed with urge to push, VE with consent, Chaperone Tara Shields. Cx fully dilated. Vx + 1. FH 100 bpm.”
68. At 19.45 hours, it was recorded that the plaintiff was “pushing well”.
69. At 20.12 hours, Joshua was delivered by way of a spontaneous vaginal delivery, in good condition.
70. The final timed record of that day was at 21.40 hours where it was recorded as follows:
“Transferred to Postnatal following SVD of living boy, lochia red/moderate. Fundus well contracted. Observations on admission BP 120/70. Apex 120 baby breast fed well in labour ward. Mum to remain on bed rest until 2.00am. Tracey aware of same.”
71. The following day, the first entry in the notes records as follows:
“Slept intermittently overnight. Breast feeding well. C/O shiverness. X 10 mils 10.36.6 resolved spontaneously. Has passed urine. Lochia normal.
Satisfactory morning, no complaints voiced. Postnatal check NAD.
T. 36.1 Lochia red/moderate.
Tracey’s C/O (L) groin painful, worse on mobility. Panadol x 2 given with effect.
Mary physio spoke to Tracey re same, will come back up in afternoon e ice pack.”
72. Later that day, i.e. 25th February 2000, the following is recorded at 8.00pm:
“IV bung removed. Tracey has ice pack in situ – (L) groin S/B by Dr. O’Neill re (L) groin pain. Charted for Distalgesic QDS.
No other complaints voiced.”
73. The first record for the following day, 26th February 2000, is as follows:
“Continues to C/O Lt. groin pain and discomfort: analgesia offered and Difene 100 mgs given. Slept for short periods only. Baby unsettled and breast fed, frequently unsettled with wind.
Satisfactory morning. Tracey continues to have some pain and discomfort in her left groin. S/B Dr. Mahmoud, for physio, charted for more analagesia as per card X”
74. The next entry is at 13.15 hours and is as follows:
“Dr. Akpan Consultant on call asked to r/v patient. Patient had this pain 4/52 before delivery. A sympyhsiotomy – mild degree:
For rest, analgesia and Clexane 20mgs.
Physiotherapist could not see the patient this am as dealing with emergency cases only.”
75. As is apparent, these midwifery notes do not at all support or reflect the plaintiff’s evidence of her complaints of pain during the course of her labour and delivery. The plaintiff did complain of pain on three occasions up to the administration of the Epidural, the first of these when she presented in the Antenatal Clinic; the second on admission to the maternity ward at 20.00 hours when she complained of crampy pains and the third at 11.45pm on 24th February 2000. Between then and the delivery at 20.12 hours on 24th September 2000, pain is mentioned three times, the first at 16.10 hours, the complaint appears to be a lot of pain and pressure with contractions. At 17.20 hours, her rapid pulse rate is attributed to pain and at 17.38 hours, it is noted that she has not got much pain relief from the top up of the Epidural.
76. These notes give the distinct impression that such pains as were complained of during the labour were attributable to the normal contractions experienced during labour.
77. A very different picture emerges in the notes after the delivery of Joshua. From early the following morning, 25th February 2000, there is noted an entirely new and different complaint, namely, left groin pain which becomes clearly the major complaint until the plaintiff is reviewed by Dr. Akpan at 13.50 hours on 26th February 2000. From then on until her discharge, this complaint is clearly the dominant feature in the notes.
78. When the plaintiff presented to the Antenatal Clinic in great distress on 23rd February 2000, and did complain of pain, it is probable that this pain was caused by SPD. The note made by Dr. Saeed on the care card is non-specific as to the source of this pain, but nonetheless, I am satisfied that the condition of SPD, which was by then established, was the source of this pain. No doubt, the presentation of the plaintiff was complicated by the fact that she presented on her due date for delivery, was obviously very uncomfortable generally, and was also complaining of pressure. In light of the fact that for the previous three weeks she had not mentioned her pubic/pelvic pain at any of her medical appointments, I am quite satisfied that the SPD condition and any pain associated with it had not then assumed the dominating affect which in retrospect she now attributes to it.
79. As the plaintiff’s labour progressed, I am quite satisfied that the pain and discomfort associated with normal labour overwhelmed and probably masked or obliterated whatever pain and discomfort might have emanated from the SPD. Once she was given the Epidural, it is probable she would not have felt SPD pain thereafter until the Epidural had worn off. Without doubt, the fact that she had an Epidural probably masked the pain that would have been caused by the occurrence of the symphysiotomy late in the labour or during delivery. It is striking that the plaintiff experienced complete pain relief approximately six hours after the delivery, but then, as the notes reflect, began to experience severe pain in her groin. I am quite satisfied that it was from this point onwards that the plaintiff began to experience the kind of severe pelvic/pubic pain that unfortunately has afflicted her so much since then.
80. When seen by Dr. Akpan on 26th February 2000, she gave a history of having that type of pain about four weeks before her delivery which corresponds with her coming to the hospital on 2nd February 2000. The difference now is that this pain from then on, namely, 25th February 2000, continuously affected here, whereas I am quite satisfied that the pain she suffered on 2nd February 2000, did subside, as she herself acknowledged in her evidence and did not return to trouble her to any significant extent for the rest of her pregnancy.
81. Returning to the admission of the plaintiff on 23rd February 2000, if one were to take the complaints as noted at the time on a stand alone basis, in my view, it was unlikely that these would have alerted doctors in a maternity unit to the presence of SPD. However, her complaints on this occasion are not to be taken on a stand alone basis because of her presentation to the hospital on 2nd February 2000. Then, as I have already said, the complaints made by the plaintiff warranted an inquiry and diagnostic tests which would have revealed her SPD condition. Had that been done then and noted, it is probable that her complaints made on 23rd February 2000, when she presented, would have been seen in a different light and as reinforcing a diagnosis of SPD. In this respect, it is telling that when admitted to the maternity unit and examined by a midwife who palpated for the baby’s head, she elicited tenderness near her scar area which was low down in the abdomen. One wonders if the diagnosis of SPD had, by then, been noted, would this finding have been interpreted differently.
82. I am satisfied that as the plaintiff entered into labour on the evening of 23rd February 2000, there should have been a diagnosis of SPD noted at that stage, which would have affected how her labour and delivery were to be managed thereafter.
83. There was a difference of opinion between Dr. George Murnaghan and Dr. Peter McKenna on the relationship between SPD and the ultimate development of symphysiotomy. Dr. Murnaghan described a continuum from SPD through its more serious aspect, Diastesis, and on to sympysiotomy. Dr. McKenna’s evidence was that the occurrence of sympysiotomy was a spontaneous occurrence and could happen regardless of whether or not it was preceded by SPD. I would be inclined to the view that both of them are right, in the sense that whilst SPD afflicts approximately one in thirty pregnant women, sympysiotomy is an extremely rare occurrence, the figures mentioned in evidence were one in 20,000 or one in 30,000 pregnant women. Thus, whilst I would readily accept Dr. McKenna’s evidence that it can be an entirely spontaneous occurrence without any preceding history of SPD, where there is a history of SPD, I would be satisfied that Dr. Murnaghan is right that it can and does, in rare cases, advance, probably in the rigours of labour and delivery to sympysiotomy, as occurred in this case.
84. In my view, it necessarily follows, therefore, that where SPD is diagnosed late in the pregnancy, that there is a real risk of the condition advancing to sympysiotomy and it further follows that the doctors or midwives managing the labour and delivery should cater for that risk.
85. First to be considered in this regard if the appropriateness of an Epidural for the obvious reason that this would, in all probability, eliminate the protective function of pain. The evidence of both experts on this point, was that it was nonetheless appropriate to administer an Epidural but that there would have to be careful management of the legs to ensure that in any necessary manoeuvres, the legs were moved as a unit i.e. together and not allowed to separate or abduct at the hips. Dr. McKenna’s evidence was that this is a standard precaution in any and all events in dealing with a pregnant woman in order to avoid injury, not just to the symphysis pubis, but also the posterior aspects of the pelvic girdle and the spine. Dr. Murnaghan’s evidence on this point was that it was essential, particularly after the administration of an Epidural, to ensure that the plaintiff’s legs were not allowed to flop or move about but were managed so as to exclude any abducting of the hips which is the movement which tends to stretch or pull outwards or apart the symphysis pubis joint.
86. In her evidence, the plaintiff described her legs being put into stirrups and elevated in such a way that her knees were up at or higher than the level of her head. Whilst I am satisfied that the plaintiff’s description of the position she was put in, is exaggerated, nonetheless, I am satisfied that she was put in what is known as the Lithotomy position which means that both feet and ankles were put into and supported by stirrups. Both expert obstetricians were somewhat baffled by the use of this position which is apparently only used where an assisted delivery, either by way of forceps or venteuse i.e. a vacuum delivery is involved, or where the perineum is ruptured during delivery and requires suturing thereafter, none of which eventualities occurred in this case. However, the plaintiff’s evidence in this regard is corroborated by a doctor’s note made on 25th February 2000, on what is described as the Puerperal Chart which reads as follows:
“25/2/00 Day 1 post SVD C/O L groin pain. Unable to weight bear, since delivery can’t walk, worse on moving hip, HXE Epidural plus leg in stirrups . . .”
87. A further entry in the physiotherapy records reads as follows:
“HPC had pain in groin plus pubic area for 6/12 pre-delivery – had been to GP numerous times but they felt that a SSOC adhesions post-salpingectomy. Worse since delivery with feet in stirrups . . .”
88. I am quite satisfied that the doctors and midwives who attended the plaintiff during her labour and delivery were oblivious to her SPD condition and took no precautions in light of that, and I am also satisfied that during the course of her labour and delivery, the plaintiff was put into the Lithotomy position, apparently for no good reason, and no care or attention was given to ensuring that her legs were controlled to avoid abducting her hips.
89. I am satisfied that as a consequence of all this, at the very end of her labour, probably in delivery, because of the uncontrolled outward movement of her hips, she ruptured her symphysis pubis joint and only began to feel the pain from this after the Epidural had worn off.
90. Therefore, I am satisfied that had proper care been taken to manage and control the movement of the plaintiff’s legs to avoid abduction, it is probable that the plaintiff would not have suffered the sympysiotomy.
91. I have come to the conclusion that all of this happened because of the failure of the doctors in the first named defendant’s hospital to have diagnosed SPD on the 2nd February 2000, and thereafter to have taken the appropriate steps to manage the plaintiff’s pregnancy, so as to avoid the risk of SPD progressing to a sympysiotomy, as occurred. I am quite satisfied that the failures in this regard fell substantially below the standard of care to be expected of doctors practicing obstetrics in a maternity unit such as in Our Lady of Lourdes Hospital in Drogheda. Accordingly, the plaintiff is entitled to be compensated in respect of the damages which have accrued to her as a result of this negligence.
92. Following on the diagnosis of sympysiotomy on 26th February 2007, an appropriate regime of care was put in place to deal with the plaintiff’s condition. This involved, first, some physiotherapy and the wearing of a Fembrace. The plaintiff was also obliged to use crutches in order to mobilise. Whilst it would appear from all of the expert evidence that in the majority of cases, this type of conservative regime is successful in curing the injury, this, unfortunately, did not happen in the plaintiff’s case. By May 2000, it was apparent that the plaintiff’s problem was not resolving and she was referred for orthopaedic care and came under the care of Mr. Brady, an Orthopaedic Surgeon. He continued a regime of conservative treatment. Her Fembrace was changed for a more comfortable device and physiotherapy and hydrotherapy were employed.
93. Again, unfortunately, these measures failed to remedy the problem.
94. I am quite satisfied that the plaintiff was in an extremely distressed condition throughout all of this. She was undoubtedly suffering very severe pain from this injury and because of the instability of her pelvis, her mobility was grossly affected so that she had to use crutches and at times a wheelchair. This situation continued throughout 2000, 2001, 2002 and well into 2003. I am quite satisfied that this caused her an enormous amount of pain and suffering and disruption of her life and grossly impinged upon her ability to carry out normal activities, particularly in looking after her children, and in particular, Joshua during his infancy. I am also quite satisfied that this injury had a very deleterious effect on her relationship with her partner because of her inability to engage in normal conjugal relations.
95. The evidence establishes that the plaintiff began to drink excessively during this time, and the plaintiff went on to become, by her own acknowledgement, an alcoholic. She herself, in her evidence, does not ascribe the blame for developing this condition to her injury, nor indeed does she attribute the collapse of her relationship with her partner to it. Nonetheless, I am satisfied that at the outset of the development of her problem with alcohol, the dulling effect which alcohol had on her pain was a contributory factor in the process of becoming an alcoholic. Likewise, whilst the injury to her symphesis pubis was not the cause of the break up of her relationship with her partner, it could only have made a difficult situation worse.
96. Towards the latter part of 2003, the plaintiff was referred by her then GP, Dr. Hayes, to Mr. Paul Nicholson, an Orthopaedic Surgeon, in the hope of some form of surgical treatment that would alleviate the plaintiff’s very distressing situation. Mr. Nicholson initially injected the synthesis pubis with a combination of steroids and anaesthetic, principally for diagnostic purposes so as to clearly identify the symphesis pubis joint as the source of the problem. The plaintiff did obtain considerable temporary relief from this, indicating that this joint was the cause of her pain. In the meantime, the plaintiff had an MRI which ruled out any other potential pathology. All of this encouraged Mr. Nicholson to offer the plaintiff surgery to fuse the symphesis pubis joint and thereby stabilise the pelvis and hopefully reduce or eliminate her pain.
97. This surgery was performed in January 2004. In it, Mr. Nicholson debrided the joint, implanted a bone graft taken from the plaintiff’s iliac crest and plated that portion of the anterior pelvis.
98. Initially, after this surgery, the plaintiff did well. Her pain reduced and her mobility greatly improved so that she was able to get about without reliance on crutches. Unfortunately, late in the summer of 2004 when she was out, she experienced what she described as a “click”, following which, in her perception, the original problem with her pelvis returned, both in terms of pain and compromise of mobility.
99. In the meantime, in February 2004, the plaintiff was referred to Dr. Eithne Murphy, a Consultant Rheumatologist in Blanchardstown Hospital because of generalised aches and pains and fatigue. Dr. Murphy gave evidence of being satisfied that the plaintiff, as a result of the diagnostic tests carried out by her, was suffering from a condition known as Fibromyalgia, which is a condition which causes pain throughout the muscles of the body and is usually accompanied by fatigue. She was satisfied that the plaintiff was suffering from this condition because upon examination she had a very large number of trigger points for tenderness, and in Dr. Murphy’s opinion the results of the examination satisfied the criteria for a diagnosis of this condition as set down by the American College of Rheumatology. Dr. Murphy’s evidence was that this condition can be precipitated or caused by stress and it was her opinion that the stress caused by the plaintiff’s ongoing unresolved pain could have triggered this condition in the plaintiff.
100. I am quite satisfied that the plaintiff did suffer the condition of Fibromyalgia and still continues to suffer from it and that this was caused by the stress generated by the unrelenting and unresolved pain emanating from the sympysiotomy.
101. Although the plaintiff did undoubtedly suffer a reverse towards the end of the summer of 2004 with regard to the immediate physical effects emanating from the sympysiotomy, I am satisfied that she did not revert to the deplorable condition that she was in prior to her surgery in January 2004. I am quite satisfied from the evidence of Mr. Nicholson that notwithstanding that the reverse occurred in the summer of 2004, nonetheless, the operation was successful in stabilising her pelvis and that did ameliorate the worst features of immobility that had afflicted her prior to the surgery. Indeed, when Mr. Nicholson saw the plaintiff in January 2011, his examination of her then satisfied him that she had a stable pelvis which was capable of supporting normal mobility.
102. I am quite satisfied that notwithstanding the benefit achieved by the surgery in 2004, it did not at all ameliorate the plaintiff’s pain which continued unabated until January 2007. Because Mr. Nicholson was unable to offer the plaintiff any further surgical treatment, he referred her to Dr. Declan O’Keeffe, a Consultant Anaesthetist in the Pain Management Clinic in St. Vincent’s Hospital in Dublin. She came under his care in 2006. Dr. O’Keeffe, in his evidence, described with great clarity the nature of the pain suffered by the plaintiff, as being neuropathic pain resulting from damage to the nerves in the affected area, and I fully accept his evidence in this regard. Initially, in the treatment regime, he tried less invasive methods of treatment, but these, whilst indicating the potential for further treatment, were not a solution in themselves. Eventually, he decided the appropriate treatment for the plaintiff was the insertion into her, of a spinal cord stimulator, which required two surgical procedures to get this device successfully fitted into the plaintiff’s body. This was successfully accomplished and, thankfully, the results in terms of relief of the plaintiff’s pain were outstanding as acknowledged by the plaintiff herself. This device enables the plaintiff to control the pain herself by the use of the device and it has resulted in her being relatively pain free from 2007, until shortly before the trial in this matter when she began to notice that the pain was breaking through, notwithstanding the use of the use of the device. Dr. O’Keeffe, whilst recognising the outstanding result that the plaintiff has had with the use of this device, his evidence was that these devices can ultimately fail or become ineffective and need to be replaced by other more modern technologies which are available. It was his opinion that the plaintiff may now have reached the stage where, as he put it, she was experiencing some “leakage” of pain which required her to resort to medication. His evidence was that the full cost of replacing this device with a more up to date one would be approximately €30,000 to €40,000. He explained this cost as being largely related to the cost of the device together with the hospital costs associated with the two separate surgical procedures; one to remove the old one and the second to install the new one. His evidence was that even with the current device, the battery would have to be replaced about every nine years at a cost of approximately €15,000 to €18,000.
103. From early on, well before the plaintiff had her surgery in 2004, she developed a significant depression requiring treatment by medication. The evidence of Dr. Abby Lane satisfies me that the unrelenting pain suffered by the plaintiff was the probable cause of this depression.
104. I am satisfied from all of the evidence that the consequences of the sympysiotomy had a transforming effect on the plaintiff’s life. The evidence convincingly establishes that prior to this happening, the plaintiff was a competent and very confident young woman who had enjoyed a wide range of athletic and other social activities, including being a member of brass band. The photographs of the plaintiff taken since the birth of her first child in 1995 but before the birth of her second child, Joshua, illustrate, even allowing for the passage of time since then, the great transformation in the plaintiff. Whilst other adverse life events, such as the break up of her relationship with her husband and the development of alcoholism were part of the attrition that has brought the plaintiff to where she is today, I have no doubt that the primary cause of the destruction of her happy and positive experience of life was the sympysiotomy and the terrible consequences of it.
105. For her pain and suffering to date, I would award the plaintiff the sum of €150,000.
106. I am satisfied that the plaintiff has now a stable pelvis which is capable of supporting normal mobility. With the benefit of the pain relief from her spinal stimulator, the plaintiff, in her own evidence, acknowledged that she had resumed normal mobility. As said already, in recent times, she has begun to experience pain again which the spinal stimulator does not successfully eliminate or control.
107. I am satisfied on the basis of Dr. O’Keeffe’s evidence that her neuropathic pain is re-emerging and that it is probable that she will require a replacement of the spinal cord stimulator by another more modern and effective device. It would seem probable that such a device would in turn be successful in controlling the plaintiff’s pain, at least for a number of years. However, it is probable that for the foreseeable future, there will be neuropathic pain emanating from the damaged nerves in her symphesis pubis joint area, but that it is probable that this pain can be controlled by the use of an appropriate pain relieving device.
108. The plaintiff continues to suffer from Fibromyalgia and it would seem likely that that is going to continue for the foreseeable future. She also remains prone to depression. In this regard, I am bearing in mind her other adverse life experiences and also the fact that she was the victim of a very serious assault in 2010, which I am sure must have had enormous impact upon her state of wellbeing.
109. Taking all of this into account, I will award the plaintiff the sum of €100,000 in respect of general damages for the future.
110. I am satisfied from the evidence, that the plaintiff will incur very substantial costs in replacing her spinal cord stimulator. The evidence before me deals only with one such replacement at a cost of between €30,000 and €40,000. It may very well be that it is not possible at this stage to foresee what further replacements would be either available or necessary. However, given the intractable nature of her neuropatic pain, it would seem to me to be probable that further technological aids would have to be required in the future to deal with this problem. Thus, it would appear to me to be likely that the cost of acquiring these would probably significantly exceed the €30,000 to €40,000 range which only provides for the next immediate replacement. Accordingly, therefore, I would award the plaintiff the sum of €60,000 to cater for probable future replacements of the technological aids necessary to control her neuropathic pain. This brings me then to the question of loss of earnings.
111. The plaintiff has had from an early age an impressive work history. As soon as she was eligible to do so at the age of sixteen, she applied for work in Dunnes Stores and was taken on part-time. After she left school, she was always in employment in a variety of jobs involving a considerable range of skills from sewing to upholstery to a form of artwork with Sullivan Bluth, to managing a pub, bar work and finally as a chef in the Flat House in Navan. After she got pregnant with her first child, Shannon, the plaintiff would appear to have not engaged in fulltime paid work thereafter. During her pregnancy with Shannon, she went to live with her partner’s mother in Hertfordshire and helped her run a pub, not for remuneration. Three months after the birth of Shannon, she returned to part-time bar work doing three to four hours per week. She was obliged to keep her working hours so low so as to keep her earnings below Stg. £19 per week in order not to lose benefit. She continued doing this part-time bar work until March or April 1997, with one interruption around February 1996, when she had an Ectopic pregnancy and was in hospital for surgery in respect of that. She returned to Ireland about March 1997. She did not wish her daughter, Shannon, to go into playschool in London. She got part-time canteen work with Dunnes Stores from mid-1997 to mid-1998. She continued to restrict herself to part-time work because Shannon would be in playschool in the morning and she wanted to be able to spend the rest of the day with her. When she left Dunnes Stores in mid-1998, she immediately took up part-time employment in the Flat House in Navan. Her hours of work there were from 9.00am until 2.30pm. When she was there about six months, a new arrangement arose whereby she worked approximately two hours in the morning and then a number of hours in the evening after a restaurant was opened which operated at night time. In the initial phase, her work was all to do with the lunch time trade. She was out of work from 17th March 1999 until 7th June 1999, as a result of having fractured her ankle in a fall off the edge of a pavement. She returned to work in the Flat House, although pregnant, and continued there until mid-November 1999, when, as a result of back pain, she gave up that employment. She has not worked since.
112. The claim for loss of earnings in these proceedings is for loss of earnings from August 2000 to the present and for the future. Mr. Byrne, an actuary called for the plaintiff has calculated the plaintiff’s loss of earnings starting from August 2000 to the present based upon her earnings in her final part-time job in the Flat House in Navan. Over the final three-month period of her employment there, her average earnings were €150 per week. Mr. Byrne has updated that sum to the present, taking account of national wage agreements in the interval. His evidence was that had she still been in that employment at the time when he prepared his report, she would have been earning €216 per week. He calculated the loss to her on the basis of those earnings over the period from August 2000 until the present in the sum of €114,551. He calculated by way of interest on that sum a further sum of €48,119 which was calculated as simple interest at the rate of 8%. Had the plaintiff been in fulltime employment over the same period, the loss of earnings calculated on the same basis would have come to €207,908 and the interest figure calculated on the same basis would have amounted to €86,881.
113. These losses are calculated from six months after the birth of Joshua. I am not satisfied that the plaintiff would have returned to part-time work so soon. The plaintiff’s evidence was that in his infancy, Joshua suffered from Still’s Disease, a form of rheumatoid arthritis, and was quite ill a lot of the time and in hospital on numerous occasions. In addition, Joshua suffers from ADHD (Attention Deficit Hyperactive Disorder). It is not clear from the evidence when this condition became a serious problem. In her own evidence, the plaintiff said that she would have gone back to part-time work when Joshua went into school. In my view, I think, that is a more realistic timescale for a return to work on the part of the plaintiff. I think it is probable, therefore, that the plaintiff would not have returned to work prior to September 2004, but it is probable that thereafter the plaintiff would, but for the ill effects of the sympysiotomy, have returned to work thereafter on a part-time basis. The probability is that she would have gained employment similar to that which she had prior to stopping work, namely, in the catering industry and her earnings would have been similar to her earnings prior to stopping work in 1999. I am quite satisfied that the plaintiff was a person who liked to work and enjoyed the social environment of work and would have been keen to return to work, but also to maximise her time with her children, so that during their school years, it was probable that she would confined herself to part-time work, but thereafter would return to fulltime work. What that means, in my view, is that from around 2004 until 2018, when Joshua would be eighteen, she would probably have been in part-time employment most of the time and from then on would have wanted to be in fulltime employment. At that stage, she would be 51 years of age and so would have approximately 14 to 15 years of working life left.
114. It is perfectly clear from the evidence that the plaintiff has been wholly unfit for work since February 2000 because of the effects of the sympysiotomy and that will continue for the foreseeable future. It may very well be the case, and this was to some extent portended in the evidence of Ms. Coughlin, the vocational assessor called on behalf of the plaintiff, that with her pain well controlled, the plaintiff, with appropriate retraining, could re-enter the workforce at some stage in the future. Having regard to her combination of problems, one would have to say that that remains in the realms of improbability for a very considerable time, if not for the entire foreseeable future. However, it is an element to which some weight should be attached in assessing such deductions to be made under the Reddy & Bates principle.
115. In respect of the past loss of earnings, I would award the plaintiff a half of the calculated sum of €114,551. Whilst it is apparent that this figure is calculated over a period of almost twelve years and that the initial period when, as I have already said, the plaintiff probably would not have been in employment at all was only four years i.e. one-third, nonetheless, I must have regard for the fact that over a considerable portion of the total period in question, there was a severe recession and high rates of unemployment and therefore a significant risk that the plaintiff would have had a lengthy period of unemployment. Taking all of that into account, it seems to me that a fair award to the plaintiff is half the sum claimed which is €57,275. Because the plaintiff is getting this sum in arrears, she is entitled to interest on that sum. Mr. Byrne has calculated interest at 8%. In my view, that rate of interest is too high as the prevailing rate of interest, and perhaps more particularly, the prevailing rate of inflation over the period in question would likewise have been lower. The evidence was that it would have been around 3%. Substituting 3% for 8% and starting by cutting the sum of €48,190 in half, results in a figure of €9,022 as interest. Thus, I would award her in total for her past loss of earnings including interest the sum of €66,297.
116. Calculating the plaintiff’s future of loss of earnings is somewhat more complicated. As indicated earlier, I think it is probable the plaintiff would have continued in part-time employment until Joshua left school. I am somewhat reinforced in that view, by the fact that Joshua does suffer from ADHD and undoubtedly requires more care and management than would otherwise be the case. Insofar as the balance of the plaintiff’s working life thereafter, namely, approximately fourteen years is concerned, as already said, I think she would be likely to have sought fulltime employment during that period. Thus, the totality of the plaintiff’s working life under consideration is approximately twenty years, divided up as to approximately six years in part-time employment and fourteen years in fulltime employment.
117. The figures which I have from Mr. Byrne calculate the future loss on the basis of either fulltime or part-time employment stretching over the entirely of that period, whereas the division of the two periods fall into approximately 58% fulltime employment and 42% part-time employment.
118. Approached in this way, and using the capital sums calculated and the multipliers used by Mr. Byrne in his reports as a guide, I would award the plaintiff the sum of €50,000 in respect of her loss of earnings over the period from now until approximately 2018 or thereabouts. In arriving at this figure, I have taken into account, as required by the decision of the Supreme Court in Reddy & Bates, such factors as future unemployment or other ill health.
119. For the period beyond that, I think it probable the plaintiff would have sought fulltime employment, which I think she would have been successful in getting because she had a good employment record and she presents, as she did in giving her evidence, as a competent and intelligent person.
120. Again, using Mr. Byrne’s figures as a guide and subtracting an appropriate sum in respect of a loss of earnings up to approximately 2018, and again having regard to factors such as future unemployment and other ill health, it would seem to me that the appropriate sum to compensate her for her loss of earnings over that period is the sum of €150,000, thus making a total for loss of earnings in the future of €200,000.
121. The plaintiff also makes a claim in respect of the cost of a cleaner at €30 per week, laundry costs of between €20 to 30 per week and she also claims the sum of €150 per week for a care assistant for her son.
122. I am not satisfied on the evidence that the plaintiff requires a care assistant in respect of her son or will require such help for the future. I would disallow that claim. Similarly, I am also not satisfied that the plaintiff requires assistant with regard to laundry. It would seem to me that notwithstanding her problems, the plaintiff is still able to cope with a broad range of domestic duties. I am, however, satisfied that heavier domestic duties such as house cleaning and hoovering would impose an intolerable burden on the plaintiff, having regard, in particular, to her ongoing Fibromyalgia. It is, of course, the case that as the plaintiff gets older she might require this assistance in any event, and particularly if, as I anticipate, she would be in fulltime employment. It would seem to me that it would be unfair to impose this cost on the defendants for the remainder of her life. As is apparent from Mr. Byrne’s report, a period of ten years attracts a multiplier of 448, and using that as a guide, I would award the plaintiff the sum of €15,000 under this head of damage.
Damages
123. In conclusion, therefore, the following are the damages to be awarded to the plaintiff.
General Damages: €250,000
Cost of Future Pain Relieving Aids: €60,000
Past Loss of Earnings with Interest €66,297
Future Loss of Earnings: €200,000
Future Cost of Cleaner €15,000
TOTAL: €591,297
124. There will be judgment for the plaintiff for that sum.
Lackey v Kavanagh
[2013] IEHC 341
JUDGMENT of Mr. Justice Kevin Cross delivered the 17th day of July, 2013
1. The plaintiff in these proceedings is a single mother of two who was born on 27th September, 1988 and resides in Ballyfermot.
2. On 16th April, 2008, the plaintiff was travelling as a passenger in the upstairs compartment of a bus which was stopped on Ballyfermot Road, Dublin, when a motor vehicle, the property of and being driven by the defendant drove into the rear of the bus causing the plaintiff allegedly to be injured.
3. The defence delivered by the defendants admits, inter alia, that the collision the subject matter of the proceedings was caused by reason of the defendant’s negligence but deny any personal injuries or loss or damage on the grounds, inter alia, as set out at para. 3(i) of the defence that:-
“The collision and impact between the two vehicles was so minor and slight that the plaintiff did not nor could not have suffered the alleged or any personal injury loss or damage.”
4. By way of special reply to the above paragraph the plaintiff claims that as the said defence is “oppressive and untrue” in circumstances “where the defendants at all material times knew this assertion was and could only have been untrue”, the plaintiff claims an entitlement to aggravated and/or exemplary damages.
5. The defendant’s vehicle was damaged to the extent as being a write off and I have seen photographs of the damage and indeed it was extensive and this in indicative of travelling at some speed, but how fast is not clear, into the rear of the bus in which the plaintiff was a passenger.
6. The plaintiff in her description of the incident said that she was sitting on the bus and was chatting to a fellow passenger who she did not know to the effect that she was pregnant and had returned from a visit to the Coombe Hospital for a scan. She said she felt a bang and that she was caused to jump up and described that she remembered going forward, being lifted out of her seat and jumping back.
7. The court and the plaintiff were shown a film recording taken by Bus Atha Cliath in one of the cameras at the top of the bus. These films are taken on a two to three frames per second basis and accordingly do not give a continuous but somewhat “jumpy” effect. There was no evidence in the film of the plaintiff being “thrown forward” or being lifted out of her seat.
8. As the plaintiff’s engineer and indeed her principal medical witness, Mr. Bruce Bough, indicated the film did show some movement of the plaintiff’s head and that it was at an angle at the time of the accident and impact. Subsequent film of the passengers on the ground floor of the bus also indicated that passengers there had some head movement at the same time.
9. The plaintiff in cross examination indicated that certainly she felt it as if she was knocked forward and backwards.
10. I find as a fact, allowing for any breaks in the film, that the impact did cause some but not very significant movement of the plaintiff’s head and neck. This is not, however, the end of the matter. The plaintiff’s case is that as well as the classic whiplash movements, her body was also subjected to forces from below caused by the impact of the car to the ground floor of the bus. The plaintiff claims that after the accident she walked down the stairs, was confused and shaken and somewhat distressed. Eventually she went home and told her mother who advised that she should go for medical help but slept on the couch and did not do so until the following day when she went to her general practitioner.
11. Subsequent viewing by the court of the camera taken on the ground floor indicates that as the plaintiff descended and appeared about to be getting out of the bus she then goes back into the bus looking confused and distressed and indeed is seen from time to time holding her back and sits down and stands up again a number of times. Some officials of Bus Atha Cliath came to her and the film ends before she leaves the bus.
12. Her general practitioner, Dr. O’Reilly gave evidence of the fact that she works in a large practice and that the plaintiff had been seen on two occasions by colleagues and a further occasion by herself that the plaintiff gave an account of being thrown forward and that she thought she may have hit her chest slightly on the seat in front. She complained of soreness and stiffness in her neck and shoulders and pain in her lower back. As the plaintiff was fifteen weeks pregnant, her doctors were unable to prescribe the appropriate medication but rather advised rest, analgesics and physiotherapy if the injuries were not settling.
13. The plaintiff in her evidence was supported by Mr. Bruce Bough, Orthopaedic Surgeon, who examined her in April 2010, some two years after the accident. The plaintiff stated in evidence that after the first 24 hours of the accident, she suffered an onset of progressively worsening central and bilateral low back pain and stiffness with parathesia down to both legs and that on examination in April 2010, Mr. Bough felt tenderness on palpation, crepitus on neck movements. Movements of her cervical spine had some limitation of movements and while movements of her shoulder joint were full in abduction and external rotation there was some limitation of internal rotation with pain at extremes. There was tenderness on palpation over the muscles of her lower back.
14. On Mr. Bough’s second examination in January 2011, he felt that Assisted Mobilisation had not been possible due to her pregnancy. Shoulder Adhesions had formed following the trauma and had been established and Assisted Mobilisation was required. This resulted in her being admitted to Clane General Hospital on 6th January, 2011 and under general anaesthetic examination he confirmed the presence of bilateral adhesions which were restricting neck movements to 80% of the normal range. These adhesions were mobilised and released by bilaterally restoring a full passive range of movement at the end of the procedure.
15. After the procedure, Mr. Bough reported essentially that her neck and shoulder movements were full with only some discomfort at extremes and there has been some improvement in her lower back, however, she has not had full remission of pains.
16. Mr. Bough was of the view that the lower lumbar spine was vulnerable due to her pregnancy and the symptoms persisted despite some moderation since the accident and it is likely that some intermittent moderate pain will continue.
17. The plaintiff in her own evidence made somewhat more extensive complaints of ongoing pain and indicated that sometimes she could not get out of bed due to pain.
18. The plaintiff and indeed Mr. Bough were intensively cross examined on the basis that the injury could not have been sustained in the accident that was shown on the video or further that the plaintiff was guilty of extreme exaggeration and in effect as was submitted at the end of the defendant’s case that the plaintiff was giving false or misleading evidence which she knew to be false or misleading and that an order under s. 26 of the 2004 Civil Liability Act should be made.
19. Mr. Bough was also cross examined on the basis that he was virtually the only orthopaedic surgeon who practiced the technique of manipulation of these injuries under anaesthetic and in essence that he was doing this for financial gain. Mr. Bough vigorously defended his practice and indeed gave evidence as to the various physical forces that were present at the time of the collision indicating the injury to the back would have been caused by forces coming from below the plaintiff from the rear of the bus where the impact occurred.
20. Mr. McQuillan, Consultant in Emergency Medicine, gave evidence on behalf of the defendant and he also gave evidence as to the various forces involved in the whiplash injury and as to the speed of impact necessary to create a whiplash injury. It is fair to say that Mr. McQuillan estimated that the speed necessary for injury in whiplash were even greater than the evidence of the defendant’s engineer, Mr. Danton, in this regard.
21. Mr. McQuillan in his evidence stated that the movement shown on the video of the plaintiff’s neck was quite minimal and said it was totally impossible for injury to have been sustained in the accident that he saw on the video. He thought that given the size of the bus, the car would have to be travelling some 80mph before there was likely to have been a whiplash injury.
22. Mr. McQuillan was asked to explain the fact that on examination under anaesthetic Mr. Bough did discover signs of adhesions and a significant reduction in internal rotation. It was suggested to Mr. McQuillan that these were objective findings which could not be fabricated as they emerged from an examination of the plaintiff under anaesthetic. Mr. McQuillan did not demur from that but suggested that the only explanation was that these injuries were caused by some other traumatic event.
23. The defendant’s engineer, Mr. Danton, also gave evidence indicating that in his view from studies of various crashes greater force would be required to cause a whiplash injury.
Decision
24. The first issue for the court to decide is whether or not the plaintiff suffered injuries of a soft tissue nature to her neck and shoulder and back in the accident.
25. As I have previously stated, the nature of the movement of the plaintiff’s neck seemed indeed to be quite small. The nature of the movement, however, was not negligible and I accept that in any soft tissue injuries many factors will determine whether one person is injured and another is not. One of these factors is the size of the person injured and the position at the time of the impact whether they were anticipating the impact and the angle of their body at the time. All of these factors mitigated against the plaintiff. The fact that the plaintiff was pregnant also mitigated against her making a reasonable or speedy recovery as the appropriate medication could not be taken. Indeed, I note Mr. McQuillan stated that on two occasions he has been involved in an accident and he has not been injured but his wife was. It is interesting in this case that both the orthopaedic experts were able to give expert engineering evidence relating to the causation of soft tissue injuries.
26. Were I to hold that the plaintiff did not suffer the injuries I would be holding that the plaintiff was attempting to commit a fraud. The circumstances of the video and indeed the nature of the plaintiff’s own testimony are indeed reasons to raise question marks on behalf of the defendant.
27. However, in order to conclude that the plaintiff was guilty of a fraud, I would have to be of the view that the plaintiff between her leaving the top floor of the bus in which she appeared to be relatively relaxed and arriving down to the ground floor had decided to embark upon a fraudulent claim in that she appeared confused, as she stated, and indeed was holding onto her lower back in some distress or discomfort and pain when in the lower floor of the bus. This is clear from the video.
28. I would then have to hold if I were to believe that the plaintiff was guilty of a fraud that she went home and decided also to deceive her mother because she made little of her complaints and told her mother that she was distressed and would not go to a doctor and then cunningly went to a medical centre the next day with a concocted story.
29. All these are indeed possible and there would still be a doubt in my mind as to whether the plaintiff was genuine until the examination by Mr. Bough of the plaintiff which disclosed that the plaintiff who had decided in 2008, allegedly to defraud the defendants had developed objective symptoms in the precise area which she claimed from the start to be painful and which symptoms were discernable by Mr. Bough objectively on examination and were only, if the defendant’s contentions are correct, a coincidence of an entirely unrelated trauma to the plaintiff in the same place.
30. It should be noted, of course, that it was never suggested by way of cross examination to the plaintiff that she did suffered an unrelated trauma to the same place but leaving that aside, I cannot conclude that the plaintiff was involved in such an unlikely fraud which then was confirmed by a coincidental trauma which was revealed on examination.
31. I must, therefore, conclude that the plaintiff did indeed suffer an injury of a soft tissue nature when she was sitting on the top floor of the bus.
32. Noting the minor nature of her neck movements, I must conclude that her body was indeed subject to the forces from below referred to by Mr. Bough in his testimony. These forces were probably the most significant ones and caused the majority of her injuries.
33. I do conclude that the plaintiff did also suffer injuries to her shoulder and neck for the reasons as set out above.
34. I must, therefore, reject the plea of the defendants that the accident did not and could not have happened. The impact to the defendant’s vehicle was quite significant though the damage to the bus may not have been so.
35. The next issue to consider is whether the plaintiff has been guilty of exaggeration to the extent provided by s. 26 of the 2004 Act. Section 26 of the 2004 Act states as follows:-
“(1) If… a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that –
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.
…
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court.”
36. As the Supreme Court stated in R. v. Bus Éireann [2011] IESC 44, it was for the plaintiff in a civil action to prove his or her claim on the balance of probabilities, however, “in this case (the defendant) raised s. 26 of the Act 2004. In such circumstances the appellant carries the onus of proof which is also on the balance of probabilities”.
37. In this case, the plaintiff complained to Mr. Bough two years after the accident of symptoms not complained of to her general practitioner e.g. headaches, pain and parathesia down her left arms and both legs.
38. It is also true that the plaintiff in cross examination made ongoing complaints in relation to her neck and shoulder which were not made or supported by Mr. Bough.
39. The issue before the court is whether the plaintiff when giving her evidence was giving a false or misleading evidence which she knew to be false or misleading which is in effect an alternative allegation of fraud.
40. I accept the evidence of Mr. Bough to the effect that somebody who was an injured party and who has suffered an actual trauma, as is the case of the plaintiff, is likely to credit every pain and ache that she has experienced since that date to the accident. This is especially, in my view, where an accident is of long term duration without resolution of legal proceedings. The plaintiff is obliged to recount her symptoms on a number of occasions both her own and the defendant’s doctors and it is a fairly natural thing that any ache or pain that she experiences is going to be related to the accident.
41. I have examined the plaintiff’s evidence and what she has told the doctors and I do not find that her evidence could be described as being false or misleading evidence which she knew to be false or misleading.
42. The plaintiff’s evidence was corroborated by Mr. Bough who stated that at her attendances with him after the mobilisation, she had referred to some neck symptoms but in Mr. Bough’s opinions such symptoms did not relate to the accident. The court is of the view that the plaintiff’s demeanour at the ground floor of the bus is supportive of injuries of the type that she has complained of as indeed is her mother’s evidence after the accident. In the circumstances, the court rejects the submissions on behalf of the defendant that the provisions of s. 26 of the Civil Liability Act should apply.
Aggravated or Exemplary Damages
43. The plaintiff claims an entitlement to aggravated total exemplary damages.
44. Aggravated damages are compensatory damages to compensate the plaintiff by reason of the manner in which the wrong was committed or the conduct of the wrongdoer after the commission of the wrong such as a refusal to apologise or the conduct of the wrongdoer in the defence of the action. Aggravated damages may be awarded in tort actions for negligence – Phillip v. Ryan [2005] 4 I.R. 241.
45. The plaintiff also claimed exemplary damages to mark the court’s disapproval of the defendant’s conduct and to punish the defendant for such conduct.
46. The plaintiff complains that the defendant expressly and vigorously asserted in the pleadings and at the hearing of the action that the plaintiff was making a fraudulent claim which brought an additional element of stress in the plaintiff. The plaintiff complains that the defendant disputed the bona fides plaintiff’s consultant, Mr. Bough’s treatment of the plaintiff referring to the contrary of opinion of other specialists who were not called to give evidence and that when the defendant’s consultant gave evidence, he did not criticise the procedure but merely stated he did not perform the procedure himself.
47. I am of the view that since the introduction of the 2004 Act which clearly impacts upon a plaintiff disproportionately more than on a defendant, the issue of aggravated/exemplary damages must always be in the mind of a court where it is alleged that the plaintiff is deliberately exaggerating his or her claim and/or being guilty of fraud or otherwise invokes the provisions of s. 26 of the 2004 Act. I think the issue of aggravated/exemplary damages is the only real deterrent to an irresponsible or indeed an overenthusiastic invocation of such a plea. I believe the courts should be at least as rigorous as they were of old when such a defence is maintained.
48. In Phillip v. Ryan where the Supreme Court held aggravated damages were to be awarded due to the behaviour of the defendants in the preparation and presentation of their case, direct blame was found against the defendant and their legal advisers for improper behaviour in effect hiding information from the plaintiff.
49. As was submitted on behalf of the defendant there is no such case to be made against the defendant here. Be that as it may, I believe the court must be vigilant in not allowing an unwarranted allegation of fraud or any unwarranted invocation of the provisions of the s. 26 of the 2004 Act to go unpunished if the circumstances allow.
50. In this case, the complaint is made on behalf of the plaintiff of the attitude of the defence both to the plaintiff herself and secondly to her principal medical witness.
51. In relation to the plaintiff and in the circumstances of the accident, I hold that whereas I have found against the defendant, I do not believe that their defence was necessarily entirely unreasonable. I am advised that the initial plea was prior to the defendants seeing the video. The initial plea was based upon the alleged minimal nature of the impact. Once, however, the defendants and their advisers had sight of the video it was not unreasonable to raise the issue as to whether the plaintiff was guilty of the fraud or the exaggeration complained of.
52. I have little doubt but that the raising of the plea did probably increase the plaintiff’s upset but I am not sure whether this upset was increased by any significant amount and in any event I hold that it was not unreasonable for the defendant to question the plaintiff and to raise the issues that they have raised.
53. In relation to the attack upon Mr. Bough, the plaintiff’s medical adviser, it is clear to say that the attack on him might certainly to a sensitive soul, appear to be on the rough side of robust when dealing with a professional witness.
54. I observed Mr. Bough and, this is no reflection on him, he did not appear to be a sensitive soul. Undoubtedly he gave as good as he got.
55. I am not a medical person and have no expertise in that regard. Mr. Bough’s surgical technique was attacked in order to suggest his evidence was not to be believed and he was engaged in a money making exercise. That indeed is a very serious attack to make against any professional person and it is, I accept, compounded by the fact that the defendant had no evidence to support the contentions put to Mr. Bough.
56. The fact of the matter is that Mr. Bough’s technique whether followed by other specialists or not served two important functions in this case. First of all as I have previously held, Mr. Bough’s technique uncovered objective evidence to support the plaintiff’s complaints. The second function that was performed by Mr. Bough is that his technique actually achieved the result it was intended to do in that the plaintiff is now, as Mr. Bough has said, “cured” in relation to her shoulder and indeed her neck problems. In many years of practice, I have witnessed many eminent medical witnesses dealing with soft tissue injuries who were unquestioned as to their professionalism by all sides and the vast majority of the medical experts I have seen would have been delighted to have achieved the result achieved by Mr. Bough in relation to this plaintiff.
57. While the attack on Mr. Bough was a significant one, the court must look at the nature of this both in the light of the not unreasonable view that the defendants were taking as to the nature of the plaintiff’s injuries and also the fact that Mr. Bough did not seem at all affected by the attack on him, I do not see the basis for this attack to be used to justify the awarding the plaintiff aggravated or exemplary damages.
58. In the circumstances, the plaintiff is entitled therefore to compensatory damages for the pain and suffering and loss and damage she has sustained.
Special Damages
59. The plaintiff’s special damages are agreed in the amount of €1,950.
General Damages
60. The plaintiff suffered distressing injuries which are of a soft tissue nature to her neck, shoulder and back. Her injuries were worsened by her pregnancy and persisted. On manipulation by Mr. Bough two years after the accident, her shoulder and neck symptoms have, in my view, resolved. The plaintiff was somewhat disabled by her neck and shoulder injuries and is still suffering some though quite minor injuries to her lower back.
61. The fact that the plaintiff suffered some of the injuries and the injuries are continuing is not to in any event be made light of. I believe that the plaintiff should be entitled to a figure of €40,000 damages to date and €5,000 into the future make a total of general damages of €45,000 to which the sum of €1,950 special damages should be added totalling in the sum of €46,950.
Adams -v- Galway County Council
[2008] IEHC 57
Judgment of Mr Justice Michael Peart delivered on the 12th February 2008:
For eighteen years prior to 23rd April 2000, being the date on which the plaintiff states that he received an injury for which he seeks damages in these proceedings, he was, amongst other things, employed by the defendants as a part-time fireman. At that date he was forty nine years of age. The evidence suggests that the plaintiff is an experienced fireman, including in relation to dealing with bog fires at night. Over his eighteen years it would appear that the records indicate that he has been called out on about forty nine occasions to deal with a night-time bog fire.
In addition to serving the community as a fireman, he was a teacher of arts and crafts to traveller families, and also to young offenders. In addition to those activities, he had about two weeks’ employment per year with Lydons Catering during Galway Races week.
The plaintiff has given evidence of receiving basic training after he joined the fire service, and that there has been ongoing training from time to time thereafter. But he says that none of this training was related specifically to dealing with fires on a bog.
However, in the evening of 23rd April 2000, a ‘999’ call was received by the Galway fire service, because a bog-fire had been reported as burning in the area of Glenamaddy in Co. Galway. The local fire service to which the plaintiff was attached at Mountbellew was alerted, and the plaintiff and three others attached to that station responded to the call and attended for duty at the fire station. They were the Station Officer, Michael Hughes, Eamonn Colleavy who was the driver of the fire appliance, Pat Keating, who was a sub-officer, and the plaintiff, who was a fireman. The plaintiff says that he was alerted by bleeper at about 8.40pm.
Having loaded up the appliance at the station with what equipment was required they set off to the fire, arriving at the bog at about 9pm. It was not yet dark at that stage, but clearly must have been getting dark.
While each of these men had many years’ experience of bog fires, they do not appear to have been out on this particular bog before. They arrived and parked the appliance at a point where the public road ended, and where a small lane leading around the bog commenced. A local man met them where they parked, and offered to bring them and their equipment in his car along that lane, and appears to have suggested to them that he would bring them to a convenient point so that they could commence tackling the fire from the back of the fire from that position. The size and weight of the appliance meant that it could not have safely travelled along this particular lane.
The plaintiff’s evidence was that he laid three large torches on the ground, as well as some beaters and a bucket. According to the plaintiff he assembled the equipment on the ground prior to the party setting off into the bog to extinguish the fire. He say that he himself picked up a beater and the lamp, but that the officer in charge, Michael Hughes directed him to bring the bucket, and that upon being told to do so he handed over his lamp to Mr Hughes and proceeded with a beater and the bucket. The presumption from the plaintiff’s evidence at this stage is that the others each took up a torch and a beater, but it appears from Mr Hughes’s evidence later that only one large torch was taken into the bog, and that was carried by Mr Hughes. It would appear that the other men carried only a beater.
In addition to this equipment each man had his own personal small torch. I am satisfied that this personal torch is intended to enable a fireman to illuminate instruments such as a gauge on a breathing apparatus or to read a map. It is part of standard equipment, and while it has the capacity to provide some light for these purposes, it was clearly never designed or intended to provide sufficient light to illuminate a path along a bog, as the single larger torch which was brought onto the bog. This personal torch fitted into a small pocket on the foreman’s uniform. I will for convenience refer to the larger torch as a lamp in order not to confuse it with the smaller personal torch.
This night was described by the plaintiff as being a “mucky night”. It was not raining at the time but he described the bog as being very wet. In fact he described this bog as being the wettest that he had ever been in over his eighteen years’ experience, and he found the terrain difficult to negotiate.
According to the plaintiff they all set out in the local man’s car and at a convenient point they alighted and made their way to the fire across the bog. He thinks that it took about fifteen minutes to reach the fire. Mr Hughes led the team across the bog, and the plaintiff was at the rear of the party of four. He recounted that he fell onto his knees at one stage on the way across to the fire and into about three inches of water. He sustained no injury as a result of this fall, which I shall refer to as ‘the first fall’, because it is as a result of a second fall into a ditch or drain that the plaintiff sustained the injuries complained of herein, and for which he seeks to recover damages.
I should refer to the fact that there has been some dispute arising from the history of the incident as taken from the plaintiff his expert fire engineer, Mr Williamson, as to whether the first and second fall occurred on the return rather than that the first being on the way to the fire and the second on the way back. I do not find it necessary to dwell on that aspect of the disputed evidence. In my view nothing turns on that question.
The plaintiff stated that they walked about a quarter of a mile to the fire, which was burning on the top of the heather on the bog at this time. The plaintiff stated that there was no house in the immediate vicinity of the fire, although he saw some people at a grassy area at the edge of the fire, and these people appear to have been beating the fire at that position with some bushes. The fire appears to have been progressing in the direction of that grassed area.
He says that on the way to the fire itself they had to cross a number of ditches, and, as I have said, he fell on one occasion as the party made their way to the back of the fire. The party extinguished the fire in due course, and then commenced the journey back to the fire appliance. The journey back did not retrace the route taken to the fire along the laneway in the local man’s car, but rather took a route directly across to where the fire appliance had pulled up at the end of the road.
Even though the plaintiff’s evidence was that he had put three lamps on the ground at the appliance before they set off across the bog to the fire, his evidence was that as they travelled across the bog and on the return journey, Mr Hughes held a lamp, that Mr Colleavy and Mr Keating each held a beater and a lamp, and that he himself was carrying the bucket and a beater. Each man also had the personal torch in their uniform pocket. As I have said none of these men had been on this particular bog before and were therefore unfamiliar with it, and of course by the time they had extinguished the fire a couple of hours had passed and it was dark. Since the fire was extinguished they no longer had the benefit of the light from the fire.
The journey back to the appliance was therefore in complete darkness, save for any light available from the lamp being carried by Mr Hughes. I have stated that the plaintiff has assumed in his evidence that all these men apart from himself carried a lamp. But in fact I am satisfied from the evidence of Mr Hughes the officer in charge of the party that in fact only one lamp was brought onto the bog and that this was held at all relevant times by him. He said that it was normal practice to carry one lamp into a situation like this. If the plaintiff is correct that he placed three lamps on the ground before they set out in the car, two must have been left behind. That is improbable, and I conclude that the plaintiff’s evidence is the less reliable in that respect. In fact, as it turns out, it is in ease of the plaintiff that I so conclude as will become apparent.
As the party made its way back across the bog to the fire appliance parked on the road, they were in single file, with the plaintiff at the rear. The leader was Mr Hughes, and there is no doubt from the evidence that the distance between Mr Hughes at the front and the plaintiff at the rear was about twenty to thirty feet. The plaintiff states that the journey back across the bog to the fire appliance involved negotiating various ditches or drains in the bog. He described these as being two to three feet wide and filled with water, but that he had no knowledge about this in advance. He was asked if there was any plan discussed in relation to negotiating this terrain, and he stated in reply that no plan was discussed, and that it was a matter simply of following the leader i.e. Mr Hughes. The plaintiff was at the rear of this party as they went back. There has been some evidence from the plaintiff that at this time he was not fully fit, though not in the sense of having any injury. He described himself as being a little overweight, and not as fit as in earlier years. He stated in his evidence in this regard that he did not feel ‘right’ going into the bog and that he felt tired and overweight, and had difficulty keeping up with the others. He accepted in cross-examination that he had not mentioned to anybody that night that he did not feel ‘right’ or that he was tired.
Nonetheless the undisputed evidence is that a distance of only twenty or so feet separated him at the rear from Mr Hughes at the front as they made their way back across this bog to the fire appliance.
The second fall:
In spite of the fact that Mr Hughes was only about twenty feet ahead of the plaintiff, he states that he was unable to see him at the head of the party due to the lack of light. The plaintiff stated that he could see the other two men ahead of him as they had what he says were lamps and stated at one point that while they were shining these from time to time behind them, these lamps were dazzling him somewhat. That evidence is also not reliable given the evidence of Mr Hughes that he alone carried a lamp. Mr Hughes’s view is that Mr Colleavy and Mr Keating must have been using their personal torches, and in fact he used this fact in order to suggest that these personal torches were strong enough to light the way a bit if they had the capacity to dazzle the plaintiff. The plaintiff certainly did not use his personal torch at all.
At any rate the plaintiff has described that he came to a ditch which he said was about four feet wide and that before he jumped across it he threw his beater and his bucket across to the other side and then made to jump across himself. He says that as he commenced the jump across, the edge of the ditch gave way beneath his foot, that his chest hit the top of the bank on the other side, and that as a result he fell back and down into the water in the ditch. The plaintiff claims that it was the lack of light which caused him to fall into this ditch, and that if he had been provided with a lamp he would have been able to see that the bank of the ditch was unstable, and that he was prevented from knowing the state of the bank and from making a decision to perhaps go around the ditch rather than jump across it in the way he did. Eileen Lydon SC for the defendant put it to the plaintiff that it was the bank giving way which caused him to fall, and not the lack of light, but the plaintiff is insistent that it was the lack of light since, if he had had a lamp he would have been able to be aware of the condition of the bank from which he was jumping.
He demonstrated with his hand that the water came up to his chest, and states that he called out and that he panicked. It was suggested in cross-examination that the water had come only up to his knees but he insisted that it had reached his chest.
Upon hearing his call, Mr Colleavy came back to him, as did Mr Keating, and that they pulled him up out of the water. He said that his Wellington boots were full of water and that his clothing was soaked with water. He also described that at this stage he was in great pain, and that he sat down for about five minutes, and that Mr Colleavy and Mr Keating remained with him there. He could not recall having seen Mr Hughes getting over this particular ditch.
The pain which he felt was in the area of his groin and stomach. It was a sharp and powerful pain which radiated up his legs to the middle of his stomach, and he described breaking out in a sweat after it. He had never had this type of pain before this incident. Having rested for about five minutes with Mr Colleavy and Mr Keating, he states that they assisted him back across the bog to the appliance, but not to the extent of having to carry him.
After they returned to the appliance they stopped at a food outlet to get something to eat. The evidence is that at that stage, the plaintiff did not at first get out of the appliance with the others, but remained in it, because he was till in great pain. However he says that he was told to go in and join the others which he did. He says that there was some joking from the others about his being injured. I take this to have been some form of good-humoured banter, as one can imagine might happen among men who have known each other and fought fires together over so long a time.
The plaintiff has stated that Mr Colleavy asked him if he needed a doctor, but the plaintiff said that he did not, and he was driven home. He had made his way on his bicycle to the station after he received the call to go to the fire station. When he got home he went to bed, but did not sleep because of the pain which he still felt. He believed at the time that he had pulled something, and took some painkillers. He in fact lay down for a while on the hall floor, as others in the house were in bed by the time he got home. He was well enough to attend a routine fire drill the following day and he turned up for that in the evening. But it appears that during the course of that fire practice/ drill he felt great pain when he attempted to lift a hose. He went back to the station and then immediately went back home.
The plaintiff never reported this injury in any official way. He agreed that he had never told Mr Hughes that he had been injured in the fall, but he stated that Mr Hughes was aware by the following day that he had been injured because he asked the plaintiff how he was feeling. In fact he states that he was not aware that there was a book at the station in which accidents or injuries were supposed to be entered. There is some dispute in the evidence which has been given by Mr Hughes as to whether the plaintiff knew that there was such a book, because there is in fact an entry from 1996 where a minor injury to the plaintiff is noted. However, I do not find it necessary to determine that particular matter.
In his evidence the plaintiff stated that he went to see his doctor the following day, a Tuesday. However, I am satisfied that his recollection of this is incorrect, and that it was, as his doctor’s evidence has been, some five days after the date of the injury that he first went to see his doctor. He was prescribed some painkillers. But he has never returned to fire duties since this accident. Some nine months later he was retired from the fire service on health grounds. It appears also that some months after this accident the plaintiff was diagnosed as suffering from Type 2 Diabetes, and it is suggested that it is possible that because the plaintiff has put on weight due to inactivity following his injury, that this at least contributed to the onset of diabetes. I will come to that in due course.
This injury has had some impact on the other teaching jobs which I have referred to, particularly since one of them involved an amount of driving which he finds difficult and uncomfortable as a result of his current back complaints. I will also deal with this aspect of the case later.
Mr Colleavy gave evidence for the defendant. He has also been a member of the fire station for eighteen years, and eleven for eleven of those years he has known the plaintiff. He has dealt with abut a hundred bog fires over this time, and described them as a common occurrence in the area. In response to the evidence given by Mr Williamson and by an engineer called by the plaintiff, Mr O’Tuairisg that this fire ought to have been left to burn until daylight and then be attended in daylight since there was no immediate threat to life or property, Mr Colleavy stated that in his experience an emergency ‘999’ callout was never ignored in that way. He also said that it was not unusual for a party of four men to attend to a bog fire. That evidence was in response to Mr Williamson’s evidence that certain fire regulations referred to state that such fires should be dealt with by a minimum of six fire personnel.
Mr Colleavy stated that the fire extended for about three quarters of a mile to a mile in length. He said that there was a house and some forestry in the general area of the fire, and although it was heading in the general direction of the house, it was not near the house at the time.
His evidence was that on such occasions he would never carry a lamp as such, since it would be troublesome when using a beater which its weight required the use of both hands. Although the bog was soft he had had no difficulty getting across the bog to the fire, and that any ditches has been negotiated easily with the aid of the beater, which he stated could be used as an aid to cross soft ground and ditches. He agreed that they had made their way to and from the fire in a single line with the plaintiff bringing up the rear. He believes that from time to time he would have assisted the plaintiff crossing ditches if he needed or had asked for any help, but he could not recall any particular difficulties in this regard.
He thinks that they took about one and a half to two hours to extinguish the fire with the beaters. The direction from which they fought the fire took them back in the general direction of where they had left the appliance on the road before they were driven in the car to the back of the fire. It appears also that when they had put out the fire they were advised by an elderly man, perhaps the occupant of the house which has been referred to, that the easiest route back to the appliance was not to retrace their steps the way they had arrived, but a direct route across to the road from where they had finished extinguishing the fire. Mr Hughes’s evidence was to the same effect. He agreed also that Mr Hughes was at the front and that he had directed them to follow him out of the bog, and that Mr Hughes had the lamp and guided them along the way. He stated also that the plaintiff was the last in the line of four men.
He could not recall actually negotiating the ditch into which the plaintiff had fallen but assumed that he must have since they were all in a line. He said that he had encountered no particular difficulties on this route. He recalled that the plaintiff had called for help after he fell into the ditch, but believes that the water was up to the plaintiff’s knees, and that he had stretched his beater back to the plaintiff and that the plaintiff had got out of the ditch by grabbing the beater and hauling himself up the bank and out of the ditch. He did not regard the plaintiff’s fall as unusual in a bog, and recalled that they had had a laugh about it when the plaintiff had got out. He recalled that they had rested for a few minutes and then made their way back to the appliance. He had not had to lift the plaintiff. He recalled the plaintiff complaining of pain in his side, and that he had asked the plaintiff if he wanted to be brought to a doctor, but that the plaintiff had declined that offer.
He stated that Mr Hughes had carried the lamp, but that if he had needed light himself he would have used his personal torch. He accepted that the personal torch provided less light than the lamp, but that it was better than no light at all. He did not recall that the plaintiff was complaining of pain on the following day when they had all attended a routine fire drill.
Ronald Robins Sc cross-examined Mr Colleavy in relation to his evidence. He accepted that this fire was never out of control, and that there had been no question having to station a man near the house referred to since it was never in danger from the fire, and that no evacuation had been necessary. He accepted also that he would not consider crossing that bog with no lamp whatsoever.
Mr Robins referred Mr Colleavy to a written statement which he had made shortly after this incident, and in which he had stated that the plaintiff was finding the journey on the bog difficult. This contrasted with his evidence in court that no particular difficulty was encountered by the plaintiff on this occasion. He agreed that the statement made at the time was different to his recollection of events now in evidence. Mr Robins referred also to the fact that in his statement he had referred to the plaintiff’s fall being on the way to the fire and not on the way out, and that there was no mention of a fall on the way out. He agreed that this account was different to his evidence in court. It was put to him that his recollection of this night therefore was not now reliable, and, in fairness to Mr Colleavy, he accepted, when pressed, that this was the case.
Michael Hughes, the Senior Officer, also gave evidence. He retired from the service in 2004, but had spent the previous thirty years in the fire service on a part-time basis. I should perhaps add that all these men were part-time members of the service. In his experience bog fires are a common occurrence, and that attending such a fire with four men was usual, and that it was very much a matter of what personnel were available when a call came to the station to go to a fire. There are apparently eight men attached to the station in question, but not all would at all times be available for duty. In any event, he stated that if it became necessary to do so, he could always call for additional resources, but that on this occasion no back-up had been necessary.
He stated that training for bog fires was part of in-service training, rather than being taught in a classroom setting as part of a training programme. He had worked with the plaintiff since the plaintiff joined the service in 1982, and he regarded the plaintiff as an experienced fireman, including in relation to bog fires.
He recalled this particular evening when the emergency call was received to go to this bog. He understood at the time that it was a gorse fire and that some forestry was under threat. He said that when they arrived at the bog they could see the fire clearly, and that it was not a small fire but extended for perhaps a mile in length. He stated that upon arrival at the location he directed that three beaters, a bucket and the lamp be brought to the fire, and that while the light was diminished, there was no difficulty making their way to the fire.
As to whether he ought to have made a decision to leave this fire until the following morning, rather than go over the bog in darkness, he stated that in his thirty years’ experience he had never done that, and that on all occasions he had extinguished a fire once called out to deal with it. He said that there had been no difficulties getting to the fire, and that he had been aware of a house in the area, and had been aware of some people who were at the fire. He had apparently heard them before actually seeing them. He then saw that they were beating the fire with some bushes.
He regarded the suggestion that on this occasion there was no risk to life and property and that accordingly he should have left the fire until the morning as “nonsense”. He stated that as far as he was concerned their job was to fight fires, taking all reasonable safety precautions, and he did not consider that there was any reason not to do so on this evening. He believes that there was a risk to people and to property given that there were people actually trying to beta the fire with bushes and that there was the house referred to. He also stated that there is a danger that the smoke from the fire can cause a hazard to traffic on the road, and that it was correct to fight the fire that night, taking into account the safety to his men at all times. He believes that with all fires on a bog there is some element of risk, but that this is part of the job involved. He felt that this fire was not particularly difficult to extinguish since the vegetation was not too dry.
As far as the terrain was concerned, there were cuttings and trenches, drains and mounds of various kinds to be negotiated, but nothing unusual for a bog.
He stated that when the fire was extinguished, he had a conversation with an elderly local man as to the best route to take out of the bog and back to the appliance. That man suggested a route directly over to the appliance rather than to go back the way they had come, and he told them to watch out for a river that was close.
He stated that he was the one holding the lamp and that he led the others out of the bog with the use of that lamp. He stated in his evidence that it was normal to bring only one lamp because more than one lamp poses difficulties if the men are using their beaters. He led them out carefully, urging them to take care, and he stated also that he could not recall jumping any ditch on his way, and that if he came to any particular difficulty he would call back to the others to watch out for it. He said that there would have been a couple of yards between each man, and that in any event each man had his personal torch.
He had been aware that the plaintiff had fallen into a ditch, but did not regard such an occurrence as particularly unusual on this sort of terrain, and had not actually seen it happen. It was a common enough occurrence in his experience. Once out of the bog, all the equipment was put away and they made their way back in the appliance, stopping off on the way for something to eat. He stated that all the men were exhausted by this time, and that the plaintiff was very tired and sore. Again, he did not regard this as being an unusual complaint after dealing with a bog fire for a couple of hours. He did not recall that the plaintiff’s clothing was particularly wet either.
He recalled the plaintiff attending the fire drill on the following day. He said that he would not have been surprised of the plaintiff had not turned up for the drill as the plaintiff had in fact arrived a little bit late. He recalled that he had asked the plaintiff if he was feeling better, and that the plaintiff had pointed out some pain, without being specific about the pain, and that he had made some friendly remark about that. He says that if the plaintiff had asked to complete an accident report he would have facilitated that, but that he did not do so.
In relation to Mr O’Tuairisg’s evidence that Mr Hughes ought to have considered leaving this fire till morning, Mr Hughes stated that his view was that it was better to get on with fighting the fire when it was small rather than run the risk of it becoming much more extensive before putting it out. He said that there was no point in watching it and considering leaving it till morning, and that that had never been his practice and he would never do that. He was shown a number of photographs taken at this bog and which show quite large ditches and drains. He stated that he had not come across ditches and drains of the size shown in these photographs when they were on the bog that night.
Mr Robins cross-examined Mr Hughes. In the course of this cross-examination Mr Hughes was prepared to say that some bogs can be extremely dangerous, but was sure that this particular bog was not dangerous as far as he was concerned on this night. He accepted that it was not possible for someone to gauge the depth of water that may be in a ditch that needed to be crossed, such as that which the plaintiff says that he attempted to cross on this occasion, and he accepted also that the edges of ditches could become disguised by overgrowth, and also that one function of a beater is to assist in crossing difficult patches of bog. He accepted also that the level of danger on a bog can be increased if on it at night, and that more caution is required at night. He accepted that at night it was more dangerous than in daylight.
He was asked also why he had seen fit to inquire of the plaintiff the next day at the fire drill how he was if his state of knowledge about the plaintiff was simply that he had been very tired after they had returned from the fire. Mr Hughes stated simply that the plaintiff had looked much better and fresher than the night before, and he simply asked how he was feeling. He was adamant that he had no knowledge that the plaintiff had suffered any injury as such, although he stated that he had heard Mr Colleavy ask the plaintiff if he wanted to see a doctor, and that this had been declined by the plaintiff.
As to whether he had read the regulations and guidelines to which Mr Williamson had referred, Mr Hughes stated that he felt sure that he had read them at some stage, but could not recall specifically if he read the passages in question about fighting bog fires. He reiterated that he was of the view that one lamp was sufficient to bring onto the bog that night, and that the lamp had provided sufficient light for the task undertaken that night.
He also stated that he had never been on that bog before and neither had he been on it since that night. He did not consider it necessary to revisit the bog before giving his evidence in court, and he accepted that his evidence was based solely on his recollection of events eight years ago. He regards that night as being not unusual in any way and that it was completely routine.
He accepted that on the way to the fire they had encountered some difficulties with the terrain but nothing out of the ordinary, and that he had taken the advice of the man referred to earlier as to the most convenient route to exit the bog after the fire had been extinguished in order to return directly to the fire appliance parked at the road. It was a journey of about 300-400 yards as far as he could recollect now.
He accepted also that the small personal torch which each man carried as part of his standard equipment was a torch specially designed to enable instruments to be read in a fire situation. It is a sealed torch which will contain within the spark which lights the torch, so that no explosion will be caused when it is lit in potentially explosive situations, but he added that nonetheless it was capable of providing some light on a bog, even if it is not designed for that purpose. He accepted also that he would not choose to cross a bog at night without a torch.
Evidence of John Williamson, Fire Consultant:
Mr Williamson’s report contains a CV which clearly indicates that he is a man of great experience stretching back some thirty seven years during which time he advanced up the ranks of the British Fire & Rescue Service in Lancashire, Grampian and Strathclyde from being a fire fighter, through to being Assistant Chief Fire Officer, Divisional Fire Commander, and Senior Fire safety Officer. There is no need to elaborate further on his qualifications and experience. He has an impressive CV, and a very extensive on the ground experience of fighting fires and commanding fire teams. This experience extends to fire-fighting on bog fires in the United Kingdom. Indeed his qualifications are not disputed by the defendant.
Mr Williamson came over to inspect the bog in this case on the 19th January 2005, and he took photographs of relevant parts of the bog, based on what he was told by the plaintiff who accompanied him.
He stated that bogs by their very nature are dangerous places to be at night, and that it is advisable when called out to a bog fire to assess the situation and decide if it was justifiable to bring firemen onto the bog at night in order to deal with the fire. He stated that in his view unless there was a risk to life or to property resulting from the fire, he would not allow men to go onto the bog to fight it. It should be avoided if at all possible.
In this particular case, and based on what he had been told by the plaintiff, he is of the view that the house referred to was not in danger, and that there was not the sort of risk apparent which would have justified going onto the bog at night to put out the fire. While the house may have been in view it presented no danger, particularly since the bog was wet, and the fire was travelling on the top of the bog. He does not believe that the fire would have spread easily given the conditions.
He had been instructed that the route taken by this party to exit the bog was considerably longer than the route taken to reach the fire. On that basis he described it as “folly” to exit the bog by a longer route in order to get back to the appliance. However, I am satisfied from the evidence which I have heard and the markings on the map which was handed in, that in fact there is no significant difference in the length of the route out of the bog from the route taken into the fire. His instructions in this regard may not have been correct.
From his own experience he was able to say that walking across a bog can be very tiring especially given the heavy uniform clothing, heavy boots, fire helmet and equipment being worn and carried.
By reference to the photographs taken of ditches pointed out to him by the plaintiff as being typical of what was encountered on this night, Mr Williamson stated that these were part of the reason why it was unsafe to go into the bog at night.
He regarded it as “absolute folly” for four men to go into the bog at night with only one lamp between them, and does not understand why that was done in this case. He described the smaller personal torches as “virtually useless” for lighting purposes on the bog. He stated that even when he visited the bog in daylight he fell while crossing the bog, and that at night the danger was much worse.
He was asked to express a view on the wisdom of just four men going onto the bog to extinguish the fire at night, and he stated that this was not in accordance with standing orders, and that it constituted what he described as a “serious error”, particularly where there was no danger to life present. He went as far as describing this error as being potentially a disciplinary offence. It appears that standing orders are that not less than six personnel should attend such a fire, and he stated in this regard that if there are six persons involved, it means that one can remain with the fire appliance so that radio communication to the station can be maintained, and one other person could have the sole responsibility for providing light to the others, though even that may not be sufficiently effective. Mr Williamson was at a loss to understand why the plaintiff and the others besides Mr Hughes were not provided with a lamp each.
In his report and in his evidence he stated that this team should not have gone to the fire with just four personnel, and that to do so was in breach of the Galway County Fire and Emergency Operations Plan which states a minimum of six persons, and that the Department of the Environment and Local Government Review of Fire safety and Fire Services in Ireland, Final report dated January 2002 recognises a minimum number of crew as five. The former document states at paragraph 4.5 thereof:
“Galway City retained personnel operate a rostered duty system on call every second week. Retained personnel in County stations must be available for duty at all times except with the permission of the Station Officer which shall be given only in the circumstances which will permit manning levels to be maintained at a minimum acceptable level, currently six personnel available for turnout.”
I should perhaps refer again to Mr Hughes’s evidence that at his station there are nine or perhaps eight men attached to the station, and that not all may be available at the same time. But he does not see this recommendation as meaning that for all fires there must be six men attending the fire. It is more that there must be no less than six available if required. In the present case he stated that when the call went out to the men, four turned up at the station and he goes with whoever turns up, in this case those four. Mr Hughes did not consider it an option that because he had only four he should not go out and attend at the fire.
However, Mr Williamson stated also that since this was what he called ‘a low risk fire’ it was not justifiable to attend it with just four men, and that this was potentially dangerous. He believes that this number resulted in the plaintiff being injured in the way that he states he was. He has made a number of complaints in his report about the manner in which this incident was dealt with. It is not necessary to set these out in full detail. He believes that the Senior Officer should have assessed the situation and that unless there was an apparent risk to life or property the fire should have been left until daylight, and that to go in at night increases the risk to the fire-fighters.
Mr Williamson referred also to a Manual of Firemanship, and to certain passages therein which deal with bog fires. I will not set out each passage to which he referred, but one in particular is relevant to the question of lighting. It refers to the existence of trenches in bogs, and states in this regard:
“These trenches are a danger at night, for it is extremely difficult for a person who has fallen into one of them to get out unaided. Plenty of light should, therefore, always be used to mark routes across the peat beds.”
Another passage with relevance reads:
“Men working on peat fires rapidly become fatigued owing to the fact that at every step taken the feet sink into the ground. When the fire is in the peat moss itself and not in the hogs, it is advisable to tread carefully, for the top layer may have burnt away and will crumble when weight is put upon it; there is then a danger of falling into holes where the peat is burning.”
There is also a reference in this Manual to beating a fire being “a very exhausting operation….”
Mr O’Tuairisg, Consulting Engineer gave evidence for the plaintiff also, and without going into his report and evidence in detail, it suffices to say that he is of the opinion that the manner in which the plaintiff was required to attend this fire at night on a bog breached statutory provisions regarding safety and welfare at work, and safety guidelines in relation to the numbers of men, the provision of adequate lighting, failure to carry out an adequate risk assessment on the night before entering the bog, and the failure of Mr Hughes who had a lamp to stay close enough to the plaintiff to ensure that his way was adequately lit. He is also critical about the level of training given to the plaintiff in relation to fighting fires on a bog. He is of the view that the plaintiff was not responsible for what happened to him when he fell into the ditch, and that he was following orders given by Mr Hughes and using what equipment was provided to him. In these circumstances, Mr O’Tuairisg considers that the plaintiff was not the author of his own misfortune as the defendant has pleaded.
On the defendant’s behalf, Mr Tony Gillick, Fire Consultant gave evidence. He is of the view that Mr Hughes’s decision to go into the bog to deal with the fire was a correct decision even with four men, since in his view there was a risk to the house described as well as to the people who were seen there trying to quench the fire with bushes. He also considered that there was the risk that the fire might spread if left unattended. He also considered that it was adequate to have one lamp only, since each person had his own personal torch in his pocket if required. He stated that it was normal practice for one lamp to be used by the officer in charge of the operation. In cross-examination, Mr Gillick accepted that he had never visited this particular bog before he prepared his report or after doing so. Mr Robins suggested to him that in such circumstances he was in no position to criticise the evidence of Mr Williamson and Mr O’Tuairisg who had visited the bog and were therefore able to form a view as to its dangers. He also accepted that some of the information which forms the basis of his report was gleaned from Mr Colleavy, and Mr Robins pointed to the fact that even Mr Colleavy had conceded at the end of his evidence that his recollection of this night was unreliable. Mr Gillick accepted that he would not go onto a bog without a torch, and he also accepted that if a man was carrying a beater, he could still manage to hold a lamp to light his way.
Conclusions on liability:
First of all I am satisfied that the plaintiff injured himself when he fell into the ditch on the occasion referred to as the second fall. While I have formed the view that in the time which has passed since this incident the plaintiff has developed a recollection of the size of the ditch and the depth of water into which he fell which is greater than what actually occurred, that does not alter the fact that a fall occurred which resulted in his injury. By that I mean that it is improbable in my view that this ditch was four feet wide. It is improbable also that the depth of water was as far as his chest area. I cannot see how, if all these men were proceeding in a straight line and if the distance from the lead man, Mr Hughes, back to the plaintiff was in the order of twenty/thirty feet, the other men would not remember clearly having had to negotiate an obstacle of such width. Indeed, if the ditch was so wide, the plaintiff would be expected to have hesitated before jumping it and to have called for assistance and/ or more light before attempting to jump across it.
I am of the view that it was much less than the four feet which he has described, and that the plaintiff formed the opinion that he could cross it successfully, as the others had done ahead of him.
The plaintiff has stated clearly that his allegation against the defendant is not simply that the ground beneath him gave way, but rather that because he had no lamp or other adequate means of light from the others, he could not see the ground beneath him or the exact width of the ditch, and that it was the lack of a lamp which caused him to misjudge the jump and fall into the ditch and the water therein. This lack of light also in m y view deprived him of an adequate opportunity to see that the edge of the bank from which he was to jump across was unstable or at least posed some risk.
Many allegations of negligence against the defendant are pleaded in the Statement of Claim, many of which in my view are not made out by the evidence which I have heard. For example, I am not satisfied that the failure to have more than four crew on the bog contributed to any significant extent to the plaintiff’s fall. Similarly, I am not satisfied that any lack of training on bogs was causative. Neither am I satisfied that proper Wellington boots were not provided. Those used were standard issue, and had been in use by the plaintiff and the others over many years and without causing any problem while out on a bog. I am equally satisfied that there was no requirement that high-beamed lights be provided in order to light up the area. In fact Mr Robins conceded that he was not suggesting that ‘arc lights’ or similar should have been available for this fire. Similarly I am not satisfied that the defendant ought to have ensured that the party was accompanied by a person who was familiar with the bog since none of these men had ever been on this particular bog before that night. It is pleaded also that that the defendant was negligent by failing to recruit younger people for the job so that the plaintiff, then aged forty eight, would not be required to attend such a fire. The plaintiff never made any complaint or made it known that he was not able to perform such a duty.
However, I am satisfied by the evidence, and in my view it seems somewhat obvious, that the lighting of the route back to the appliance across the bog at night was inadequate to ensure the reasonable safety of the plaintiff. In that matter, the defendant was negligent by failing to provide the plaintiff with a lamp, and that the defendant did thereby expose the plaintiff to a foreseeable danger, given the darkness and the terrain having to be negotiated. The fact that Mr Hughes had a lamp and, as far as he was concerned at least, was conscious of the men behind him, was insufficient to ensure the reasonable safety of the plaintiff, given that he was at the back of the line.
The fact that Mr Hughes conducted himself on this bog in the way that always occurred as a matter of regular practice is not sufficient to discharge the responsibility he had for the safety of those men under his command on that night. The fact that this was the first occasion on which any mishap leading to injury of personnel had occurred by the use of one lamp in such circumstances can be seen as good fortune rather than as an approbation for, or vindication of, the methodology adopted. I accept that Mr Hughes was a man of great experience on bogs at night, and that this is the way things were normally done, but different considerations apply from a legal perspective when an injury actually occurs. It is only on such occasions that the shortcomings of a normal practice become apparent.
Reference has been made to the standing orders applicable and the guidelines adopted by the defendant for dealing with fires on bogs, which are a common occurrence in this area, according to the evidence in this case. I accept that for someone in the position of Mr Hughes, such regulations and guidelines would have been read by him at some stage, but I am left, having heard him give his evidence, that he is of the view to a large extent, that these standing orders and guidelines are theory based and bear little reality to the actual job of fire-fighting. I appreciate that the fire service concerned is a part-time service, and I accept that as a matter of practicality, the Senior Officer in charge deals with the call on the basis of what resources are available at the time, and relies on practical experience over many years. To do so, without any apparent regard for what the rules state, and on the basis of what is normally done in such circumstances, is to ignore the ultimate purpose of regulations of any kind, namely to set down a benchmark for safety standards for persons at work. In ninety nine cases out of a hundred the time-honoured method of carrying out a job will prove successful whereby the job is done without any harm to personnel. Unfortunately, in the one case out of a hundred when an injury does occur, it is easy to point to ways in which safety has been compromised by a failure to adhere to the rules and guidelines. In my view there was a failure to have regard to the very sensible recommendation that when fighting a fire on a bog at night personnel must be provided with adequate lighting for the terrain involved. At a minimum, in m y view, each person ought to have had a lamp available to him which would assist in providing adequate light in darkness. One lamp between four does not seem to me to serve that important purpose, albeit that each man had as part of standard equipment a smaller torch not intended for that purpose.
Contributory negligence:
In its Defence the defendant has pleaded that the plaintiff failed to discharge the duty of care that he owes to himself. It pleads that he failed to use his personal torch; failed to rely on his own skill and experience as a fireman, including on bogs; failed to follow the footsteps of the other members of the crew; failed to concentrate on what he was doing; failed to remain adequately fit for his job; failed to have due regard for his own safety; was the author of his own misfortune; and failed to walk with a proper and adequate stride. It is pleaded also that he failed to comply with relevant legislation.
In my view none of these pleas are established by the evidence save that which states that he failed to have due regard for his own safety. The evidence clearly establishes that the plaintiff is a mature, and experienced fireman, well used to attending on a bog in order to deal with fires there. He has been doing it for eighteen years. He must be regarded as someone who is fully aware of the hazards which are normally encountered on a bog, especially at night. It is unreasonable that he should expect the leader of the party, in this case Mr Hughes, to nurse-maid him back across the bog to the fire appliance. In my view it was reasonable for Mr Hughes to expect that the plaintiff would speak up and alert him or some of the others to any particular difficulty encountered and for which he needed assistance whether by way of the provision of light from the lamp, or otherwise. There is no evidence that the plaintiff did so on this night. He appears to have encountered what he says was a four foot wide ditch containing water of an unknown depth within it, and his evidence has been that this was mucky night in which conditions were wet and unfavourable. Nevertheless he took a decision for whatever reason simply to jump the ditch having thrown his equipment across ahead of him. In my view he must be held to some extent responsible for the fact that he failed to take notice of the extent of the jump required of him, especially when he acknowledges himself in his evidence that on this night he was not feeling ‘right’ on the bog, and he knew that he was fatigued and not as fit as maybe he was in former years.
In my view it is appropriate to attribute 20% blame to the plaintiff.
The injuries and damages:
As already stated the plaintiff attended his General Practitioner five days following the accident. He reported that he had fallen into a bog-hole and that he had felt a sudden pain in the perineal region. He was given an anti-flammatory injection, and prescribed anti-flammatory medication. He was reviewed again about a week later and was referred for X-ray of his lumbar spine and pelvis because of continuing complaint of pain in the low back area. By the 19th May 2000 (4 weeks post accident) he was considered unfit for work.
The x-ray taken revealed that the plaintiff had moderate degenerative disc space narrowing at the thoraco lumbar junction, T12 through L13, with degenerative osteophyte formation throughout. The lower lumbar disc spaces were well preserved, but it was noted that there was “marked osteophyte formation involving both superior acetabule…”. There was minimal narrowing of the medial joint space bilaterally, and both sacro-iliac points were normal.
On examination on the 21st June 2000 (two months post accident) the plaintiff complained of getting a stabbing-type pain in his lower back, relating that it was worse in the mornings. He also complained of pain on lifting weights, constipation and weight loss.
Dr Moore states in his report at this time that straight leg raising on the right was restricted to 30 degrees and 60 degrees on the left, his reflexes were normal, and that he had decreased movement at his right hip due to pain. Dr Moore’s conclusion at that time was that the plaintiff had previous degenerative disease in his lumbar spine, and that x-rays of his pelvis showed early arthritic changes in both hip joints. He states that it is likely that the accident herein aggravated a pre-existing arthritic condition which was present in his back and hips.
The plaintiff was referred to Orthopaedic Consultant, Dr Mangan, who examined the plaintiff in August 2000 and again in September 2000. He opines that the plaintiff suffered a soft tissue injury to his lumbar spine and hips, and that since there were chronic degenerative changes in both areas, it is likely that he will suffer pain in these areas into the future, but that the intensity will vary from time to time, and that the plaintiff will have to be careful about his back.
Physiotherapy was recommended but the plaintiff attended only one session, stating to Dr Moore in August 2001 that he felt worse after it rather than better.
By August 2005, Dr Mangan reports that x-rays taken at that date showed little change from those taken in 2000. He stated that from the plaintiff’s account of his symptoms at that stage, most of the pain seems to be emanating from his hip joints. The question of considering hip replacement is mentioned in this report and a later one in 2006, but Mr Robins has confirmed that the plaintiff is not seeking to recover damages to cover that eventuality should it arise.
Dr Mangan’s opinion is that the accident on the bog in this case made the plaintiff symptomatic in his lumbar spine and hip joints, whereas he had previously been asymptomatic. He states that the accident accelerated the process of degeneration.
Diabetes:
I have already referred to the fact that in the months following this accident the plaintiff was diagnosed with diabetes. It is suggested that because of inactivity resulting from this injury he had put on weight and that this may have caused the onset of diabetes. The reference by Dr Mangan in his August 2000 report to the plaintiff having put on weight by August 2000 is strange given that in a report dated June 2000 Dr Moore stated that the plaintiff complained of weight loss. However, one way or the other I am not satisfied that the case is made out that as a matter of probability whatever weight the plaintiff may have gained following the accident (in evidence Dr Moore stated that he had at some stage put on about one and a half stones) caused the onset of Type 2 Diabetes. It is possible according to some of the reports that this may have contributed to the diabetes, but as a matter of probability the case is not established on the evidence before me.
The defendant has also sought to argue that because the plaintiff developed diabetes by the summer of 2000, he would have been required to resign as a fireman on the basis that diabetes is one of the conditions which disqualifies a person from acting as a fireman. Again, I do not believe this has been established as a matter of evidence. It may well be that in a relatively short time after 2000 the plaintiff’s physical condition and fitness may have deteriorated further, both as a result of diabetes and the ongoing degenerative changes in his hip joints and spine, and I am taking that factor into account in any event in relation to the latter, and no further account need be taken of it related to diabetes.
General Damages:
I have no doubt that as a matter of probability on the evidence before the court the injury which the plaintiff sustained that night on the bog rendered the degenerative changes in his spine and hip joints symptomatic and that it has caused an acceleration of the degeneration process. Nevertheless, it is clear that at some relatively early stage this plaintiff would have become symptomatic. There is little room for doubt about that given the extent of the degeneration described. While the plaintiff is therefore entitled to be compensated for the acceleration of these changes, and the fact that he suddenly became symptomatic, the measure of those damages must take into account the fact that even without this incident, he would have in the reasonably short-term have begun to suffer pain and discomfort, leading to his having to resign from his fire duties with the defendant.
The plaintiff has not tried to make too much of his injury. He has been very open and honest in that regard. He can still go about much of his previous activities, but cannot work as a fireman, and driving any significant distances causes him great discomfort. The plaintiff is now aged fifty seven years. I have taken the view that given the extent of the pre-existing degenerative changes shown on the x-rays taken, it is probable that by eight years post accident he would have begun to be symptomatic. It seems to follow therefore that he is not entitled to be compensated for any pain and suffering into the future from the present date, since he would unfortunately have suffered in that regard in any event.
As far as general damages from the date of accident to date are concerned, I assess a sum of €55,000. This sum represents damages for the actual pain and discomfort experienced during the almost eight years since the accident happened. I cannot award damages in relation to the onset of diabetes for the reasons stated.
Special Damages:
The figures for special damages are agreed subject to liability for them being established by the plaintiff. The only area of possible controversy relates to whether the plaintiff is at a loss of salary in relation to work he did for his employment with the National Association of Training Centres for Travellers. He had fifteen hours work per week with that organisation but gave it up because there was too much driving involved and he was unable to continue it. However, by way of mitigation of his losses, he seems to have picked up other work in his town which involves cleaning statues in the town and such like, and he is paid about €325 per week. In my view this offsets any claim for the fifteen hours work which he gave up, and this heading of loss should be discounted as a result.
I intend to calculate the plaintiff’s losses on the basis that he would have had to retire as a fireman at age 55 on account of his significant degenerative changes. It is heavy work, and it is reasonable to conclude that he would not have been able to do that type of work beyond that age.
Accordingly, and by reference to the figures agreed I calculate his special damages as follows:
1. Loss of earnings as a fireman – €41274
2. Loss of value of Retirement Gratuity – €16632
3. Medical expenses – € 2417
4. Pharmacy expenses – € 1326
5. Travel expenses – € 788
6. Guttering Contractor – € 800
Total Special Damages: € 63237
The total of general damages and special damages amounts to the sum of €118237, from which must be deducted 20% for contributory negligence. That means that judgment will be entered for the plaintiff in the sum of €94589.60.
Davis -v- Jordan
[2008] IEHC 200 (27 June 2008)
Judgment by: Herbert J.
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.
O’Connor -v- Murphy & Anor
[2008] IEHC 248
Judgment by: deValera J.
Status of Judgment: Approved
JUDGMENT 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.
O’Brien v Derwin
[2009] IEHC 2JUDGMENT 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.