General Damages 2014-2017
Cases
Murphy -v- County Galway Motor Club Ltd & Ors
[2016] IECA 106
Court of Appeal
Composition of Court:
Peart J., Irvine J., McDermott J.
Judgment by:
Irvine J.
Judgment of Ms. Justice Irvine delivered on the 14th day of April 2016
1. This is the plaintiff’s appeal against the judgment and order of the High Court (McGovern J.) of the 6th April 2011 made in the context of a personal injuries action. The proceedings concern injuries, loss and other damage sustained by Mr Blaine Murphy on 5th February 2005 when he was struck by a motor vehicle when attending the Galway International Motor Rally at Loughrea, Co. Galway. Following a four day hearing, wherein both liability and quantum were in dispute, the trial judge awarded the following sums to the plaintiff by way of damages:-
• General damages for pain and suffering to date: €100,000
• General damages for pain and suffering into the future : €100,000
• Loss of earnings to date: € 40,000
• Loss of earnings into the future: €175,000
• Costs of anticipated prosthesis: €170,000
• Agreed special damages: € 12,498
Total: €597,498
2. As to liability, the trial judge dismissed the proceedings against the fourth named defendant, the driver of the motor vehicle that struck the plaintiff, at the conclusion of the plaintiff’s evidence. At the conclusion of the trial, he apportioned liability as to 33.33% to the first, second and third named defendants and 66.66% to the plaintiff. Accordingly, he granted judgment against the defendants for €199,166 together with costs, to be taxed in default of agreement.
3. On this appeal the plaintiff maintains:-
(i) that the finding of 66.66% contributory negligence on the part of the plaintiff was perverse having regard to the evidence;
(ii) that the sums awarded in respect of both categories of general damages were unjust and lacking in proportionality;
(iii) that the trial judge incorrectly concluded that the plaintiff’s potential net earnings from 5th February 2005 to the 8th February 2011 were €115,000 as opposed to €159,800. Accordingly, the figure which he arrived at in respect of past losses i.e. €40,000, having taken into account actual earnings, social welfare payments and other expenditure on the part of the plaintiff, was not supported by the evidence;
(iv) Insofar as the award of €229,602 in respect of future loss of earnings is concerned, the principal complaint is that the approach adopted by the trial judge was not supported by the evidence. The plaintiff submits that he ought to have calculated the claim for future loss of earnings on the basis that the plaintiff would likely have worked as a self- employed plumber but for his injuries and would have had an earning capacity of €200 per day. Instead, he had done so on the basis that he would likely have worked in paid employment 39 hours a week at the minimum hourly rate applicable to the construction industry. Had damages been calculated on that basis, prior to any deduction in respect of the considerations advised in Reddy v. Bates, the sum awarded would have been €307,000 as opposed to €229,602 in respect of this category of loss.
Background facts
4. The plaintiff was born on 23rd June 1985 and was nineteen years of age at the date of the unfortunate and tragic events that form the subject matter of these proceedings.
5. On 5th February 2005 the plaintiff and three of his friends decided to attend the Galway International Motor Rally. The rally was organised and managed by the first named defendant under the auspices of the second named defendant and the third named defendant provided the safety services for the rally.
6. Having parked their car, the plaintiff and his friends walked in excess of three kilometres over boggy ground to get to a good viewing area. The plaintiff had a video camera with him and wanted to shoot some footage and take some still photographs of the cars as they were put through their paces.
7. Having stopped for approximately 20 minutes to take some footage at a location where there was a bend in the road (“location 1”), the plaintiff and his friends moved further down the same roadway to an area where the road travelled over the crest of a hill. This was a point at which the wheels of cars were seen to leave the road as they went over the crest, or alternatively were seen to lighten up on their suspension while remaining in contact with the road.
8. The plaintiff and his colleagues took up a viewing position, somewhat beyond this crest (“location 2”). The trial judge found as a fact that location 2 was 52 metres or so beyond the crest of the hill. There was some dispute as to whether the plaintiff sat down on a rock to the left of the roadway from the oncoming driver’s perspective or whether he was, as he maintained, a couple of metres further away from the crest sitting on a tuft of grass at a slightly more elevated level. However, because of the proximity of the two positions, the trial judge said it made no difference to his findings.
9. As the plaintiff and his friends wandered from location 1, where a significant number of people including a marshal were gathered, neither the marshal nor anyone else attempted to stop them moving down towards location 2 beyond the crest of the hill. Further, there was no warning or indication of any type that they should not locate themselves in this area.
10. For the purposes of this appeal the court viewed the video footage taken by the plaintiff at location 1 following their arrival, and also the video footage taken after the group had settled at location 2. This latter segment was very short indeed. It showed no more than six cars coming over the crest of the hill before it was cut short by reason of the collision between a car that left the roadway at this point and the plaintiff. The sound track however continued, and to say that the same is harrowing is perhaps an understatement. The plaintiff is to be heard screaming in pain as a result of the horrendous injuries which he sustained. His terror and pain are palpable.
11. It is common case that the plaintiff sustained a severe compound fracture to his left lower tibia with disruption of the tibiofibular joint, a dislocation of the left knee with rupture of all of the ligaments around the joint and severe skin loss of the lower left leg. He also sustained a number of small lacerations to his left upper forearm and left hand. Because of the severity of the injury to his leg the plaintiff required an amputation initially at knee level and then later above the knee. He was wheelchair bound for a significant period prior to being fitted with a prosthesis.
12. The trial judge, having heard and considered all of the evidence, concluded that the plaintiff would suffer a lifelong disability associated with the amputation of his leg. He accepted that after ten or fifteen minutes of walking that the stump often became sore and at times broke down to the point that it oozed blood. He accepted that the plaintiff could not stand for long periods, that he had difficulties managing any steep incline or walking over uneven ground, that he had difficulty with steps and stairs and could no longer play any sport that involved running. The trial judge accepted the medical evidence that the plaintiff was at significant risk of developing arthritis. The medical evidence in this regard anticipated that the plaintiff would develop arthritis on the non amputated side in his remaining knee and in his spine.
13. I will deal with the trial judge’s findings in respect of the plaintiff’s special damage claim later in the course of this judgment.
General damages
14. An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries sustained. In Foley v. Thermos Cement Products Limited [1954] 90 ILGR 92 Lavery J. stated that the task of the judge in an appellate court was:-
“To make its own estimate of the damages he would award and then compare this with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making its estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witness and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
15. This approach has been adopted in many subsequent cases. In Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 I.R. 547, Fennelly J. described the role of the appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne).”
16. It is generally accepted that an appellate court should not engage in what might be considered to be petty interference with an award of damages and should only interfere when it considers that there is an error in the award which is so serious as to render it unjust or lacking in proportionality. The test of proportionality seems to me to be an appropriate one, regardless of whether the complaint be one of excessive generosity or undue parsimony.
17. It is certainly the case that an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as a judge at first instance and, as was advised by McCarthy J in Hay v. O’Grady [1992] ILRM, the “arid pages of a transcript seldom reflect the atmosphere of a trial”. For this reason an appellate court should be slow to interfere with or second guess a trial judge’s determination as to what constitutes appropriate damages in any given case.
18. Principle and authority require that awards of damages should be:-
(i) fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate within the scheme of awards for personal injuries generally.
(See MacMenamin J. in Kearney v. McQuillan and North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
19. To achieve proportionality the judge ought to have regard to the entire spectrum of personal injury claims which includes everything from the most modest type of injury, such as soft tissue injuries, to those which can only be described as extreme or catastrophic and which tend to attract damages of in or about €450,000. It is helpful for a trial judge to endeavour to locate where, within that spectrum, the injuries of any particular plaintiff would appear to lie: see, e.g., Nolan .v. Wirenski, judgment of Irvine J. 25th February 2015. After all, damages are only fair and just if they are proportionate, not only to the injury sustained by an individual plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. There must be a rational relationship between awards in personal injury cases. That said each case must turn on its own facts.
20. Applying these principles to the present case, it is undoubtedly the case that the plaintiff’s injury must be viewed as a very serious and significant one when considered in the context of the overall spectrum of personal injuries claims. Any amputation, and particularly the amputation of a leg at a young age, will have permanent and irremediable consequences for the victim. It is an injury destined to adversely influence every area of his life.
21. The trial judge awarded the plaintiff €100,000 in respect of pain and suffering for the five year period between the date of the injury and the date of trial. Having considered the evidence as to the plaintiff’s injuries and what he suffered over that period, I am satisfied that, while the award was certainly not on the generous side, it was within the range that may be considered proportionate and fair. Where I disagree with the trial judge is in his assessment of the general damages for pain and suffering into the future.
22. One of the factors which to my mind should sound heavily in damages is the age at which a plaintiff sustains a devastating injury. This plaintiff was only nineteen and was entering what ought to have been the most dynamic and thrilling period of his life in terms of work, leisure and social activity. The evidence demonstrated that in respect of each of these areas, the plaintiff’s life would likely be permanently and irreparably changed by reason of his injuries. He was not in a position to continue with his chosen trade i.e. that of a plumber. He is unable to participate in most sporting activities. He suffers ongoing discomfort and disability and will do so for the rest of his life. He will have decades of embarrassment and upset because of the disfigurement of his body. Further, he runs the risk of future complications in terms of his mobility due to the natural ageing process. In addition, he is at risk of developing significant arthritis in a number of joints as a result of his amputation.
23. As to the type of activities which a young man of nineteen years of age might expect to enjoy, the plaintiff cannot cycle, play soccer or engage in any activity which requires mobility. He is grossly affected in his social and leisure activities, although he drives a modified car. He will not be in a position to enjoy many or the activities, holidays and leisure pursuits that able bodied people take for granted because he is unable to deal with uneven ground or rough terrain. I cannot but think of those fathers I see kicking a ball with their young children or teaching them to swim or perhaps strolling with toddlers on their shoulders. The plaintiff will likely be denied all of this and so much more.
24. Of even greater significance is the fact that he plaintiff will start every day of his life with the task of attaching a prosthetic limb and will end each day with the reverse process. Regardless of the plaintiff’s optimism as to the future, this will be an enormous burden to bear for the rest of his life.
25. When I think of the entries that might be made by this plaintiff in a diary to be kept by him over the next 50 years or so concerning his pain, distress, disadvantage, embarrassment and upset deriving from his injuries, I am quite satisfied that the sum awarded by the trial judge in respect of future pain and suffering was wholly inadequate by way of compensation and that it must be set aside. It does not fall within what I consider to be the acceptable parameters for future pain and suffering for this particularly significant injury. I would propose a sum of €175,000 be substituted to replace the sum awarded in respect of this category of loss.
Loss of earnings to date
26. Mr. McGovern S.C. on behalf of the defendant does not contest that the trial judge, in his judgment, incorrectly concluded that the evidence given by the plaintiff’s actuary, Mr. John Byrne, was to the effect the plaintiff’s total net loss of earnings from February 2005 to February 2011 amounted to €159,800 as opposed to the €115,000. However, he was not in a position to agree that the court should rectify this error by simply adding the difference between those two figures namely €44,800 to the award which the trial judge made under this heading i.e. €40,000.
27. Mr. McGovern submitted that the trial judge intended to reduce the net loss of earnings claim by reference to the plaintiff’s actual earnings up to the date of trial and any deductible social welfare benefits received between 5th February 2005 and 5th February 2010, subject to some adjustment to allow for the fact that the plaintiff had bought into a taxi business in 2008 at an approximate cost of €50,000. However, other than the plaintiff’s actual earnings, which amounted to €44,000 over the said period, it was not clear how the judge had arrived at the additional figure of €31,000 to make up the €75,000 which he deducted from what he mistakenly believed were the plaintiff’s potential net earnings of €115,000. He submitted that the trial judge was entitled to deduct five years social welfare payments and that he probably had not done so.
28. I am quite satisfied, and the parties agree, that the starting figure adopted by the trial judge in respect of his past loss of earnings calculation was incorrect. It ought to have been €159,800 as opposed to €115,000. It is also clear that he intended to deduct €75,000 in respect of the plaintiff’s actual earnings over the relevant period as well as deductible social welfare payments. It would further appear that he had intended adjusting the claim for past loss of earnings to take into account some part of the losses sustained by the plaintiff in investing in a taxi driving business which proved unsuccessful.
29. Of the sum deducted i.e. €75,000, €44,000 is accounted for in actual earnings. The balance of €31,000 was deducted, as the trial judge stated, on a somewhat “unscientific” basis to take into account deductible social welfare payments under the Social Welfare (Consolidation) Act 1993. The only evidence as to deductible social welfare payments related to the plaintiff’s receipt of disability benefit which he received for a period of one year. There was no evidence that he received any other deductible social welfare payments.
30. Based upon the evidence, it would appear that the defendant got a very favourable result when the trial judge decided to deduct €75,000 from this aspect of the plaintiff’s claim. A deduction of that size is hard to justify in circumstances where the trial judge seemed sympathetic to the fact that the plaintiff had spent substantial money trying to gain entry into the taxi business. If he had intended to compensate the plaintiff for any of the €50,000 which he maintained he had spent in that regard, that sum should have been added to the sum award. That expenditure could never have operated to the defendant’s benefit by way of deduction.
31. In these circumstances, there is no basis upon which this court should interfere with the trial judge’s calculation as to the amount to be deducted from the plaintiff’s anticipated earnings up to the date of trial. However, given that it was his clear intention to start his calculations based on expected earnings of €159,800 as opposed to €115,000 it would be unjust not to substitute the correct figure into the trial judge’s calculations. That done, taking the correct staring figure of €159,800 and deducting the sum of €75,000, the appropriate award in respect of past loss of earnings is €84,800.
Future loss of earnings
32. At the time of his accident the plaintiff had completed his leaving certificate and in 2004 had commenced working with his father in his plumbing business. He was still an apprentice as of the date of his accident.
33. The evidence established that while the plaintiff obtained a modest leaving certificate his I.Q was within the top 10% of the population and when measured against students of university level he was within average range. He had hoped eventually to take over his father’s business but this obviously was denied him insofar as a career in plumbing became impossible due to his mobility restrictions.
34. In assessing the plaintiff’s claim for future loss of earnings, the High Court judge had evidence from Ms Ann Doherty, employment consultant, that a self employed plumber would expect to earn a minimum of €200 gross per day or a net weekly sum of €620. Assuming that the plaintiff could retrain within three years from the date of the trial and would then be capable of earning €27,000 gross per annum or €440 net per week, his net loss from that point on would be €180 net per week. Allowing the plaintiff full losses (€620 net) for the three years of retraining and the €180 net differential thereafter placed a capital value €307,380 on the plaintiff’s future loss of earnings.
35. The court was also given figures to demonstrate what the plaintiff’s loss would have been if he had worked as a plumber in paid employment working a 39 hour week and receiving what was then the minimum rate of pay for a qualified construction craftsman, namely €18.60 per hour gross.
36. The trial judge found as a fact that were it not for his injuries, the plaintiff would have continued to work as a plumber. That finding was based upon credible evidence. However, it is difficult to see how the trial judge decided, having regard to the evidence, to calculate the plaintiff’s future loss on the basis that he would have continued, for life in paid employment working 39 hours a week on minimum wage. Adopting that scenario, allowing the plaintiff full losses at the rate of €562 net per week for the first three years and thereafter a differential of €122 net per week, the trial judge concluded that the plaintiff’s future loss of earnings, before any consideration of the contingencies provided for in Reddy v. Bates was €229,602.
37. Counsel on behalf of Mr. Murphy submits that the trial judge was perverse in adopting the latter of the two models advised by Mr Byrne as the basis for calculating the plaintiff’s future loss of earnings. He submits that all of the evidence favoured the judge concluding that the plaintiff, were it not for his accident, would have been a self employed plumber and would have continued to work as such for the rest of his working life.
38. I have carefully re-read the transcript of the plaintiff’s evidence and that of his employment consultant, Ms. Ann Doherty. Having done so, I cannot conclude that the trial judge was perverse in his failure to adopt in its entirety the self- employed model urged upon by the court by Mr. Kiely. It is clear that the plaintiff would have had a preference for self employment, that he was highly industrious and extremely smart. Nevertheless, there was some evidence to suggest that, depending upon the state of the economy in this country, he might have had to go abroad to obtain work and in this regard Ms. Doherty gave evidence concerning the availability of work in Australia, London and Canada.
39. However, I am equally satisfied that it was perverse for the High Court judge to calculate the loss of earnings into the future on the basis which he did. There was no dispute but that the plaintiff would have qualified as a plumber. The conclusion of the trial judge that the plaintiff would have been confined to the minimum wage in the construction industry and would only have worked a 39 hour week was not supported by the evidence. The evidence was that the plaintiff was in the top ten per cent of the population in terms of his I.Q.. He had demonstrated, by reference to the work he had undertaken since the date of his accident, that he was a seriously industrious and capable young man. For the judge to have cast him into the lowest category of construction worker and consigned him to that role for life was in the teeth of the evidence. Why would the plaintiff not have moved up beyond minimum wage with experience and future training? Would he never have worked beyond 39 hours a week?
40. As to how to rectify the trial judge’s error, it cannot be done in the manner proposed by Mr Kiely as the judge rejected the evidence that favoured self-employment. The trial judge was entitled, in my view, to adopt a paid employment model for the purposes of calculating the plaintiff’s losses. Further, having adopted that approach, it is difficult to criticise the trial judge for adopting the minimum wage in the construction industry for the purpose of calculating the plaintiff’s first three years loss of earnings as at that time the plaintiff would have been quite in-experienced. Thus the figure of €84,300 in respect of that period should stand. Insofar as his calculation of the plaintiff’s losses commencing three years post accident, I would propose uplifting the differential of €122 per week which was selected by the trial judge and would replace it with €165 net to allow for the fact that the plaintiff would as his career advanced move somewhat beyond the minimum wage in the construction industry. Using this differential and applying it to the multiplier used by the trial judge i.e. €1191 gives a value of €196,515 to the plaintiff’s claim for future loss of earnings commencing three years post trial. Thus, I would propose an award of €280,815 (€84,300 + € 195,515) to replace the sum of €229,602 awarded by the trial judge.
41. The trial judge applied a discount of close to 25% to allow for the factors in Reddy v. Bates and that would appear to be appropriate. Accordingly, applying a 25% reduction to the figure of €280,815 the plaintiff’s total future loss of earnings would come to €210,611. Accordingly, I would propose that this sum is substituted for the sum of €170,000 which was allowed by the High Court judge.
42. Having regard to the aforementioned findings the total award before any consideration of contributory negligence should be as follows:-
• General damages to date: €100,000
• General damages into the future : €175,000
• Loss of earnings to date: € 84,800
• Loss of earnings into the future: €210,611
• Future costs associated with the prosthesis: €170,000
• Other agreed special damages: € 12,498
€752,909
Liability/contributory negligence
43. Mr. Kiely, submits that the trial judge, in apportioning 66.66% of liability to the plaintiff erred in his application of the relevant principles having regard to the evidence. In particular he submitted that fault, in the context of contributory negligence, has to be equated to blameworthiness and not to the potency of the causative factors moving from the respective parties. He relied in particular on the decision of Walsh J. in O’Sullivan v. Dwyer [1971] IR 275 where at p. 286 he stated as follows:-
“Degrees of fault between the parties are not to be apportioned on the basis of relative causative potency of their respective causative contributions to the damages …. Fault or blame is to be managed against the standard of conduct required of the ordinary reasonable man in the class or category to which the party whose part is to be measured belongs.”
44. Relying upon this statement, Mr. Kiely submits that the trial judge’s finding that the defendants were blameworthy to a lesser degree than the plaintiff was perverse.
45. In order to assess the validity of that submission it is necessary to rehearse the findings of fact made by the trial judge insofar as the same bind this court in line with the principles advised in Hay v. O’Grady. These are well known and I do not intend to repeat them in the course of this judgment.
46. The following findings were made by the trial judge:-
(i) The plaintiff probably had seen and considered the programme for the Galway International Rally for February 2005. The location of the plaintiff’s accident was not mentioned in the safety plan nor designated an area of special risk.
(ii) The programme contained a ‘spectator safety’ warning sheet which included drawings of acute bends, a fork in the road, junctions and other features which might pose a hazard to spectators. These diagrams included, at the bottom right hand corner an image of a “crest jump”.
(iii) The plaintiff had attended a number of motor rallies with his father as a child. The event in question was the third he had attended as an adult. He was somewhat familiar with the procedures at a motor rally and would have had a general appreciation of the risks and dangers associated with such an event.
(iv) The plaintiff and his friends spent approximately 20 minutes at location 1. There was a marshal at this location.
(v) As the plaintiff and his friends made their way to location 2, where the accident took place, they would have been temporarily out of the view of the marshal for part of the journey, because of the contour of the land, but otherwise would have been visible to him as they made their way to the crest.
(vi) When they reached their ultimate destination the plaintiff sat down on a rock in a drain approximately 50 metres beyond the crest. The plaintiff was 2.5 metres from the edge of the road.
(vii) There was no tape, markers, barriers or any other warning signs at location 2 to advise spectators that they should not be there or needed to take any particular care for their safety.
(viii) The plaintiff and his friends were not alerted in any way to the fact that they should not have been viewing the event from location 2.
(ix) The area should have been cordoned off or marked as it was an obvious place of danger, as per Mr. O’Keeffe’s evidence.
(x) The plaintiff, when seated, would not have been visible to the marshal at location 1.
(xi) The plaintiff’s reaction time was impaired by the fact that he was sitting down.
47. In terms of the negligence on the part of the organisers of this rally, the trial judge in apportioning liability found them negligent in:-
(i) failing to identify location 2 as a hazard,
(ii) in failing to identify location 2 as a prohibited area,
(iii) in failing to give any warnings to persons attending the event to stay away from location 2, and
(iv) in failing to properly supervise this dangerous area.
48. When it came to his consideration of the plaintiff’s own culpability, three factors were emphasised by the trial judge. First, he concluded that common sense would suggest to anyone attending an event such as this that they should not position themselves close to the road just beyond a “blind crest”. The crest constituted a danger that should have been obvious to the plaintiff in circumstances where he had earlier seen cars going over that crest with all four wheels in the air. Thus, regardless of the conclusions he had reached in respect of the defendants’ negligence, when dealing with the issue of contributory negligence he concluded that the plaintiff should not have needed a warning from a marshal or any other official to warn him of the potential danger of locating himself where he did. Second, he had the benefit of the programme for the event which contained the safety statement. Third, by sitting down, the trial judge concluded that the plaintiff had allowed himself less time to react in an emergency than he would have had had he remained standing.
49. For my part, I agree wholeheartedly with the trial judge in his conclusion that those who attend motor rallies must take reasonable care for their own safety. Spectators ought to know that competitors will be driving at speeds on narrow country roads negotiating junctions, bends and crests of hills where the skill of the driver will be severely tested. They must, I believe, be vigilant and must comply with all such guidance and instructions as they may receive or encounter concerning their own safety. I also agree with the trial judge that those who are responsible for organising events of this nature know that spectators are likely to gather in places where drivers will be tested to their full capability and that they need to have an effective safety plan in place to ensure that spectators will be safe lest drivers lose control of their vehicles under such conditions.
50. It is not disputed that contributory negligence should be assessed in the manner advised by Walsh J. in O’Sullivan v. Dwyer and that an appellate court should only interfere with an apportionment of fault where it is satisfied that the trial judge has made a gross error in making that apportionment.
Conclusions
51. In reviewing the conclusions of the High Court judge it is necessary to firstly consider the class or category to which the plaintiff and the first, second and third named defendants belong. Simply stated, the plaintiff was a young amateur and a relatively new motocross enthusiast. He was not, however, a complete novice. The defendants, on the other hand, were experienced professionals involved in motocross on a national and international basis. They are well versed in the management of events such as that which was taking place on the date of the plaintiff’s injuries. They are the parties with the expertise to know where spectators are likely to be at risk. This, after all, is why the third named defendant was involved with the rally. While the promoters and organisers of sporting events ought not to be considered to be the insurers of the welfare of spectators, they must seek to protect them from dangers of which they are aware, or ought to be aware.
52. In this regard, the trial judge was satisfied that the area in question (location 2) was one which was dangerous, needed to be identified and spectators kept at a distance. To default from these obligations in circumstances where it was foreseeable that a car might leave the roadway with the result that a spectator might be badly injured or even killed, is to act in an manner which is blameworthy indeed. This, of course, was not their intention and it was very clear from the evidence that the defendants each took their obligations in terms of health and safety very seriously. They would appear to have planned this event carefully.
53. When compared to the knowledge, experience and expertise of the defendants, the plaintiff’s knowledge and experience of the risks to which he was exposed pale significantly. Yes, he had attended a couple of car rallies as a child with his father and as an adult had previously attended two other motor rallies. Thus, while it has to be accepted that he had some experience of what happens at a motor rally and how he might potentially put himself at risk, he can hardly be described as somebody who did not need to be warned about areas which the court concluded were hazardous and which ought to have been identified and supervised.
54. It is reasonable nonetheless to conclude that in circumstances where the plaintiff had noted the tyres of cars leaving the roadway at the crest of the hill, he should probably have anticipated the possibility of danger regardless of any warning and should have positioned himself further back from the road to take sure that he would not be within striking distance of a car, should it lose control. However, his blameworthiness for failing to do so cannot be equated to the failure of the defendants to identify this hazardous area for the purposes of ensuring that spectators did not gather at that point. In addition, there was no evidence to suggest that the plaintiff was somebody who would have failed to heed any warning that he might have been given either by a marshal or by way of signage indicating that he should not stand at any particular location.
55. Insofar as the plaintiff was to be assessed as being blameworthy by reference to the fact that he had purchased a programme which contained a safety sheet outlining the risks of standing near the crest of a hill, I would observe the following concerning the programme. First, it runs to approximately one hundred pages. Second, inclusion of a safety sheet is not obvious. It is to be found approximately twenty pages into the programme amidst pages of advertising and motor related articles. Third, while the safety sheet does indeed advise those attending the event that motor sport is dangerous this, however, is what it says at para 2:-
“However, we take our task responsibly, and have put in place a team of training marshals and their assistants to guide you in relation to places where it is considered unsafe for you to be.”
As we know, the plaintiff was not guided or warned not to stand at ‘location 2’, an area which the trial judge concluded was hazardous. Fourth, while there is a diagram which depicts a flat image of a crest or jump it gives no guidance to the reader as to how far away from the roadway or the crest they would have to stay to avoid any potential risk.
56. It is true to say that on a thorough reading of the programme, the plaintiff would have seen the safety statement. If he did, having regard to what is referred to in the last preceding paragraph; it would not have been blindingly obvious to him that he shouldn’t have been standing where he was when he was struck. He might have considered that it was safe to be there because he hadn’t been advised to the contrary by the trained marshals and assistants who, according to the safety sheet were to be deployed to advise spectators where it was considered unsafe to go. Of course it is possible that he might, if he had studied the diagram, have taken the view that location 2 was an unsafe place to be. However, there was no evidence to the effect that it was obvious from the diagram that for the plaintiff to have positioned himself more than 50 metres from the crest of the hill was likely to put him at risk.
57. Regardless of what is contained in this safety statement, I am quite satisfied that by far the greater degree of responsibility in terms of the plaintiff’s safety rested with the experts i.e. the first second and third named defendants, and the inclusion of this one sheet in the brochure which contains information that was lacking in clarity and was contradictory in respect to the safety of the location which the plaintiff adopted cannot afford the defendant much comfort in terms of it’s blameworthiness for what occurred on the day of the plaintiff’s accident.
58. The final matter which weighed against the plaintiff in terms of the trial judge’s assessment of contributory negligence was his finding that the plaintiff, by sitting on the rock in question, had put himself at particular risk insofar as he had given himself less time to react to an emergency than if he had been standing up.
59. In relation to his finding I accept the submissions made on the plaintiff’s behalf that this was a finding which the trial judge was not entitled to take into account when it came to the apportionment of liability. The uncontested evidence from Mr. O’Keeffe was that regardless of whether the plaintiff had been standing up or sitting down he would not have been in a position to get out of the way of the oncoming car travelling at the speed and the manner in which it did. Average reaction time was one second and a car travelling at 60 miles per hour would travel the relevant distance in 2 seconds and at 75 miles per hour in 1.6 seconds. The plaintiff would not “have had a hope” of getting out of the position in the timeframe concerned.
60. For the aforementioned reasons I believe that the apportionment of liability by the trial judge was indeed perverse. Of course I use that word in the legal sense only. For the reasons I have earlier outlined, I would apportion liability as to 75% against the first, second and third named defendants and 25% as against the plaintiff.
61. Accordingly, I would set aside the order of the High Court and in its place I would make an award of €564,682 (€752,909- €188,227).
Nolan -v- Wirenski
[2016] IECA 56 (25 February 2016)
Composition of Court:
Ryan P., Peart J., Irvine J.
Judgment of Ms. Justice Irvine delivered on the 25th day of February 2016
1. This is the defendant’s appeal against the judgment and order of the High Court (Barr J.) made in a personal injuries action on 4th July 2014.
2. On that date the High Court judge awarded the plaintiff the total sum of €125,680 damages and directed that the defendant pay the cost of the action, the same to be taxed in default of agreement. A stay on that order was granted on terms that the defendant pay a sum of €60,000 to the plaintiff pending this appeal.
Background
3. The plaintiff’s claim was brought in respect of personal injuries sustained by her in a road traffic accident which took place on 8th September 2010 when she was a passenger in a motor vehicle driven by her husband that was struck from the rear by the defendant’s motor vehicle on the N7 near Naas, Co. Kildare.
4. The High Court judge awarded the plaintiff a sum of €90,000 in respect of pain and suffering to date, €30,000 in respect of pain and suffering into the future and an agreed sum of €5,680 in respect of special damages.
Judgment of the High Court
5. In making his award the trial judge relied upon the following findings of fact. The plaintiff was born on 24th February 1964 and was fifty years of age at the date of the hearing. He found that at the at the time of the impact the plaintiff placed her right hand against the windscreen to protect her head and that as a result of the collision she suffered significant injuries to her right shoulder, right hand and thumb. The plaintiff was prescribed pain killing medication and was advised to undergo physiotherapy. She was referred to three orthopaedic surgeons; Mr. John Quinlan, Mr. Joseph O’Beirne and Mr. Diarmuid Moloney. The last of these, Mr Moloney, has a special interest in upper limb injuries.
6. As to treatment, the trial judge noted that the plaintiff had undertaken approximately sixty sessions of physiotherapy and that as of the date of trial still required painkilling medication on a daily basis. In February 2012 her right shoulder had been manipulated under general anaesthetic and the affected area injected. In November 2012 she had had a further subacromial injection. In May 2013 she underwent an arthroscopic subacromial decompression and rotator cuff repair.
7. The trial judge accepted that the plaintiff remained symptomatic as of the date of the hearing. In particular he found that she continued to have some restriction in relation to the internal rotation of her shoulder and that she suffered from ongoing right shoulder and wrist discomfort. The trial judge expressed himself satisfied that the plaintiff was unable to lift her right arm above shoulder level and could not do tasks which demanded overhead work. He also accepted her evidence that she had difficulty finding a comfortable sleeping position and that as a result she suffered from disruptive sleep leading at times to fatigue and irritability. He further concluded that the plaintiff was restricted in her ability to perform certain activities of everyday living such as ironing, hanging out washing, hoovering and dressing. However, he noted that she continued to undertake all of these activities subject to suffering discomfort and as a result was of the opinion that she would continue to carry out these chores into the future.
8. As to her prognosis, the trial judge was satisfied that while the plaintiff would likely achieve a good functional outcome in terms of her right shoulder she would not return to her pre accident status. She would continue to have some restriction in internal rotation and might experience what he referred to as “occasional pain”.
9. In the course of his judgment the trial judge also referred to the fact that the plaintiff might require further injections into her right thumb to determine the likely cause of her radial hand pain. It is not clear from this part of his judgement whether he compensated the plaintiff in respect of radial hand pain and the possibility that she might require such injections. However, it is clear from what he said about the plaintiff’s radial hand pain that he had insufficient evidence from which he might have concluded, that the same could be ascribed to the plaintiff’s accident.
10. It is clear from the transcript of the evidence and indeed from the judgement of the trial judge that the credibility of the plaintiff as to the extent of her injuries was a live issue in the case. In this regard the trial judge referred to the evidence which had been advanced by the defendant for the purposes of seeking to establish that the plaintiff had exaggerated the extent of her injuries. By this I mean the photographs and video proved by the defendant in evidence and which showed the plaintiff engaging in a number of activities which in the course of her own evidence she had maintained caused her difficulty including ironing, lying on her right side and raising her right arm overhead. When dealing with the plaintiff’s credibility the trial judge also referred to that aspect of the evidence given by the defendant’s orthopaedic surgeon, Mr Michael O’Riordan, to the effect that he could find no abnormality with the plaintiff’s right wrist function nor any abnormality in her shoulder which might explain the restriction she contended affected her ability to undertake those activities of daily living to which I have already referred.
11. Having referred to these aspects of the evidence he stated:-
“I am satisfied that the plaintiff is an honest person, and has not sought to exaggerate her present symptoms. I accept her evidence and that of her husband that she is a person who will not let pain get the better of her. She would do the ordinary chores of daily living even though this will cause problems for her later on.”
Submissions
12. Mr Maher, S.C. on the defendant’s behalf maintains firstly that a number of the findings of fact made by the trial judge were not supported by credible evidence thus impugning the validity of the award of damages based on those findings. Secondly and independently he argues that, even accepting the appropriateness of the facts as found by the trial judge, the sum awarded in respect of both categories of general damages was excessive. Accordingly he seeks to have the said award set aside.
13. As to the trial judge’s finding that the plaintiff’s evidence as to the extent of her injuries was credible, Mr Maher argues that he either failed to engage with or failed to have proper regard for the following matters, namely:-
(i) The Plaintiff in her evidence stated that the road traffic accident had had no effect on a pre existing back injury which had caused her to have a spinal stimulator fitted. However, in her application form to PIAB and also in her Replies to the Defendant’s Notice for particulars she claimed that her back pain had been exacerbated.
(ii) While the plaintiff maintained that the collision had been “ferocious” the photographs of the car damage and the cost its repair (€1,161.02) suggested that the contrary was the case.
(iii) The plaintiff had advanced a claim for past and future care of in or around €350,000 (€38,306.24 for past care and €17,103.69 per annum for future care) which she withdrew, according to the defendant, without adequate explanation, on the morning of the hearing. The sum so claimed was based upon a report that had been prepared by Ms Noreen Roche, Nursing Consultant.
(iv) The plaintiff had asserted and had further demonstrated in the course of her evidence in chief that she could not raise her right hand above the horizontal. However, video evidence advanced by the defendant showed the plaintiff fully extending her right arm overhead and waving enthusiastically on three separate occasions within a very short period of time.
(v) The defendant had produced a video showing the plaintiff ironing for upwards of 25 minutes and photographs and other evidence depicting her resting on a beach on her right shoulder for in excess of 10 minutes in circumstances where she had told the court, in the course of her own evidence, that each of these activities caused her significant pain and discomfort.
14. The defendant accordingly submits that the trial judge’s findings as to the extent of the plaintiff’s injuries and the restriction which they imposed on her activities were not supported by credible evidence and thus could be interfered with by this court on appeal.
15. Counsel for the defendant further argued that the trial judge had erred in compensating the plaintiff on the basis that she could not raise her right arm beyond the horizontal and that her pain was such that she was required to take substantial ongoing medication on a daily basis. The video evidence had conclusively established that the plaintiff was able to raise her right arm above the horizontal and under cross examination she had accepted that the medication she was taking as of the date of the trial was the same as that which she had been taking for her back injury prior to the accident.
16. Finally counsel submitted that even if all of the findings of the trial judge were supported by credible evidence the sum awarded in respect of both categories of damages was excessive. The same was disproportionate to the plaintiff’s injuries. In this regard he relied upon the decisions in M.N. v. S.M. [2005] IESC 17 and Kearney v. McQuillan and North Eastern Health Board [2012 IESC 43.
17. Mr McGrath S.C on the plaintiff’s behalf submitted that there was credible evidence to support the trial judge’s findings as to the extent of the plaintiff’s injuries. He reminded the court that the defendant had not sought to make the case, as he might have done, that the plaintiff’s injuries were inconsistent with the damage to the defendant’s car and he relied upon Mr O’Riordan’s evidence that the plaintiff’s shoulder and arm injuries were consistent with a hyperextension injury caused by the collision as described by the plaintiff.
18. As to the late withdrawal of the claim for care, counsel referred to the explanation which the plaintiff had advanced while under cross examination, namely, that she had only seen Ms. Roche’s report for the first time on the morning of the hearing and in circumstances where she felt that it was not accurate she had advised her lawyers to withdraw it, a decision that was entirely appropriate.
19. As to the level of the plaintiff’s disability, the trial judge had seen the plaintiff give her evidence and was best placed to adjudicate on the nature and severity of her injuries. An appellate court was not entitled to interfere with such findings given that they were, he submitted, supported by credible evidence. He relied heavily on certain aspects of Mr O’Riordan’s evidence to the effect that each of the procedures which had been carried out on the plaintiff’s shoulder would not have been undertaken lightly and the fact that the plaintiff had been willing to undertake them was significant evidence of the severity of her injuries and of her efforts to recover therefrom.
20. As to the overall level of damages Mr McGrath submitted that the total award of €120,000 (€90,000 to date and €30,000 into the future) was within the range of damages proportionate to the plaintiff’s injuries. He again emphasised Mr O’Riordan’s evidence to the effect that the plaintiff would likely continue to experience discomfort in her shoulder and wrist into the future. That being so the sum of €30,000 awarded for future pain and suffering was modest in all the circumstances.
Decision
The Jurisdiction of the Appellate Court.
21. An appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries concerned. In Foley .v. Thermoement Products Ltd [1954] 90 ILTR 92 Lavery J. stated that the task of the judge in an appellate court was:-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case where personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
22. In Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578 Fennelly J. took a slightly different approach to the same issue. This is how he described the role of the appellate court:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question “whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable.” The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against “relatively petty paring from or adding to awards”. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J in a further passage from the same judgment.”
23. It is undoubtedly the case, as was advised by McCarthy J. in Hay v. Grady [1992] ILRM, and Lavery J. in Foley, that an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as the trial judge at first instance and that “arid pages of a transcript seldom reflect the atmosphere of a trial”. Thus an appellate court must be cautious and avoid second guessing a trial judge’s determination as to what constitutes appropriate damages in any given case. That is certainly true insofar as the plaintiff’s evidence is concerned and indeed in respect of any other oral evidence given in the course of the trial.
24. However, this is a case in which the plaintiff’s medical evidence was not given via voce. The plaintiff’s expert reports were, by agreement, handed in to the trial judge and in this respect this court is in as good a position as the trial judge to evaluate the weight to be attached to that evidence. I am nonetheless mindful of the fact that this medical evidence cannot be viewed in isolation and must be considered against the backdrop of the plaintiff’s own evidence, which this court has not had the benefit of hearing.
25. Accordingly, it is fair to say that it is not for an appellate court to tamper with an award made by a trial judge who heard and considered all of the evidence. It is only where the court is satisfied that the award made was not proportionate to the injuries and amounts to an erroneous estimate of the damages properly payable that this court should intervene.
Assessment of Damages in Personal Injury Cases.
26. The assessment of damages in personal injury cases is not a precise calculation; it is not precise and it is not a calculation. It is impossible to achieve or even to approach the goal of damages, which is to put the plaintiff back into the position he or she was in before they sustained their injuries. In most cases, where the injuries are not severe, a plaintiff will in fact get back to their pre-accident condition but that is not because they have been awarded damages but rather by the natural process of recovery. On the other hand, for some plaintiffs, an award of damages is a very imperfect and inadequate mode of compensation and is a poor substitute for the change in circumstances brought about by the wrongdoing of a defendant, particularly where they will not make a full recovery from their injuries.
27. It follows that the true purpose of damages for personal injuries is to provide reasonable compensation for the pain and suffering that the person has endured and will likely endure in the future. How is that to be measured? The process of assessment is objective and rational but personal to the particular plaintiff. Obviously, it is reasonable to look for consistency as between awards in similar cases but the same kind of injury can have different impacts on the persons who suffer it. Therefore, the court should not have the aim of achieving similarity or a standard figure.
28. The spectrum of personal injuries claims includes everything from a minor sprain to the most severe and catastrophic brain injury which may deprive a plaintiff from birth of most if not all of life’s joys, while leaving them acutely aware of their predicament. Their injuries may result in a great deal of physical pain and suffering. They may suffer from spasticity, quadriplegia and incontinence. Some require peg feeding and most are completely dependent. Plaintiffs falling within this category have no prospect of engaging with normal society as we know it. They can never hope to hold down a regular job, enjoy a loving relationship or aspire to becoming a parent. In many cases these plaintiffs face personal indignity on a daily basis and have a substantially reduced life expectancy.
29. Another type of serious personal injury which the courts are regularly called upon to value are cases of harrowing and repeated sexual assault which oftentimes have life long consequences for the victim. One such example is the case of MN v. SM to which I have already referred. In that case the plaintiff was abused by the defendant and sexually assaulted on a regular basis by the defendant in her own home when she was between twelve and seventeen years of age. The abuse started with inappropriate touching, kissing and digital vaginal penetration. Later the defendant forced the plaintiff to masturbate him. He became more insistent and aggressive and his sexual abuse became painful. On many occasions he forced the plaintiff to have full penetrative sex with him. Apart from the physical abuse attached to these ongoing assaults the plaintiff developed panic, anxiety, nightmares and depression. She had spent years on anti-depressants, had low self esteem and had enormous difficulties with emotional and physical intimacy. The jury awarded the plaintiff damages in the sum of €600,000, an award reduced by the Supreme Court on appeal to €350,000 at a time when Denham J. noted that general damages for the most serious type of personal injuries awards including paraplegia and quadriplegia were at that time €350,000.
30. The brain damaged child and the victim of sexual abuse are but two examples of the types of claims which fall into the most serious end of the personal injuries spectrum and for whom compensation for pain and suffering is far from open ended.
31. Principle and authority require that awards of damages should be (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.
32. It can however generally be said that insofar as cases which involve catastrophic or life changing injury have come before the Courts in recent years, the level of general damages awarded in respect of injuries of this type has generally been somewhere in or around €450,000 . That is not to say that €450,000 is a maximum. There has been the rare case in which a sum in excess of that figure has been awarded.
33. There has also been some debate over the years as to whether it is reasonable to consider the potential return on investment of the sum awarded in respect of general damages as being relevant to the assessment, but it seems to me to be safer and more just to ignore that possibility. Any plaintiff may choose to invest a sum awarded to them as compensation in respect of pain and suffering, but they ought not to be obliged to do so.
34. Another suggestion is that the notional maximum award of €450,000 in cases of extreme or catastrophic injury is less than would otherwise be the case because the plaintiff in those cases will recover in full a very large sum in respect of all areas of special damage such as loss of earnings, future care, aids and appliances etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injury he sustains. Special damages represent the calculation of actual losses past and future, which leaves the matter of general damages to be assessed entirely separately. Although there are undoubtedly some dicta in the cases supporting this approach, which I would reject as being unjust and even perhaps irrational, the leading authority would not appear to justify that approach.
35. The plaintiff in Sinnott v. Quinnsworth, [1984] ILRM 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“Probably the most serious condition that a person can suffer as a result of personal injuries.”
36. The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely, that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
37. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, cost and expenses, past and future, which it was the purpose of special damages to cover in full, and the award for compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his general damages reduced because he has received due recompense for his out of pocket expenses and future needs.
38. Moving back to the present case, the essential point is that it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450,000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury. In the exercise if its wardship jurisdiction the High Court regularly approves settlements for injuries of this type at this level of compensation.
39. When it comes to assessing damages I believe it is a useful to seek to establish where the plaintiff’s cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. Such an approach should not be considered mandatory and neither does it call for some mathematical calculation; what is called for is judgment, exercised reasonably in light of the case as a whole. Not every case will be suitable for such an analysis and that is where the trial court will want to explain the reasons why that approach may not be suitable in the particular circumstances. However, the fact that this yardstick is not absolute and may not be of universal application in all cases does not diminish its value generally.
40. As to where on the spectrum of awards the injuries of an accident victim such as Ms Nolan should be located will be determined by the nature and extent of the physical or psychological trauma induced by the defendant’s wrongdoing and the extent to which they may be expected to recover therefrom. There is no template or formula to be applied. Judges, I suggest, tend to look to the presence or absence of particular factors and features to guide them as to the seriousness of any particular injury. They might have regard to the likely answers to the following questions;-Was the incident which caused the injury one which was traumatic and caused distress? Did the particular plaintiff require hospitalisation and if so for how long? What did they suffer in terms of pain and discomfort or lack of dignity during that period? What type and number of surgical interventions or other procedures did they require during that period? Did they need to attend a rehabilitation facility at any stage and if so, for how long? While recovering in their own home, were they capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependant in all or some respects? If the plaintiff was dependant, why was this so? Were they, for example, wheelchair bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependant? What if any limitations had been imposed on their activities such as leisure or sporting pursuits? For how long were they out of work? To what extent was their relationship with family and friends interfered with? Finally, what was the nature and extent of any treatment, therapy or medication required? These are all matters that might be relevant to considering the seriousness of the injury and the amount that ought to be awarded in respect of pain and suffering to date.
41. The appropriate award to make in respect of pain and suffering into the future requires the trial judge to reach a conclusion as to the likely amount of pain, treatment, medication, intervention and lifestyle limitation the plaintiff will have to endure in the future. The elements cannot be exhaustively catalogued for every case. Assessment is a rational process taking into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences or sequelae and if so their nature, the impact on the plaintiff’s life in all its different aspects including his family, his work, his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
42. As Denham J. advised in M.N v. S.M. damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. As she stated at para. 44 of her judgement “there must be a rational relationship between awards of damages in personal injuries cases.” Thus it is important that minor injuries attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level which are clearly distinguishable in terms of quantum from those that fall into the other lesser categories. In this regard, just because a judge describes an injury as significant this does not mean that the damages must be substantial. Any injury to an otherwise healthy individual is significant. However, when it comes to assessing damages, what is important is how significant the injury concerned is when viewed within the whole spectrum of potential injuries to which I have earlier referred.
43. Central to this process is the evaluation of the plaintiff’s evidence as to all these matters. The plaintiff’s accuracy and reliability are very important, as indeed is his credibility. The last feature is not always a major issue but the others will usually need to be considered. The court usually has only the plaintiff’s evidence as to the effects of the injury on his life so it is important that it should be carefully evaluated. This does not mean that the court should adopt a sceptical approach but it should bear in mind that the onus is on the plaintiff to prove his case and that applies to each particular element. The defendant does not have to disprove the plaintiff’s assertions and it is often in practical terms impossible for the defendant to do so.
44. The plaintiff’s evidence has to be considered against the background of the objective medical evidence. That may come in the form of oral testimony from the plaintiff’s treating doctors and the defendant’s examining and reporting doctors. If there is radiological evidence of scientific tests that back up the plaintiff’s account, obviously that is important. The doctors’ opinions and the factual basis for their views also represent objective material evidence that the court will want to consider.
45. If the plaintiff’s own evidence conflicts with other testimony or documentary material, it is a matter for the court to seek to reconcile the difference. That may not be possible in a particular case for a variety of reasons but the process of objective consideration of the case requires this analysis. The court will want to look for a reason for any inconsistency between the subjective experience described by the plaintiff and the objective evidence available from the medical sources.
46. It is not sufficient for the court simply to declare that it accepts the evidence of the plaintiff or that it is satisfied that he is a truthful witness without saying why that is the case. If the question is raised whether the plaintiff is a credible witness or is exaggerating his injuries or their impact on him, that is a matter that should be resolved by reference to the evidence and not simply by an unsupported assertion based on the impression that he made on the trial judge when giving evidence. Obviously, the judge’s view is very important and indeed in that respect puts the trial court in a position superior to that of the appeal court: see Hay v O’Grady [1992] I.R. 210. But for the appeal court to have the full value of the trial judge’s superior position, it needs to have available to it the reasoning process whereby the judge arrived at his conclusion.
47. This is to say no more than that the judge should give reasons for his conclusions, a precept that is of general application to tribunals and adjudicators generally. However, it is not always the case that judges in personal injury cases express the process of reasoning that leads them to their conclusions. That can leave the appeal court in darkness as to the rationale of the award.
48. It is common nowadays for the parties to agree that the medical reports should be handed into the court to be treated as evidence as if the doctors had testified in accordance with their contents. This is no doubt a very practical and convenient approach which saves time and money but it can add to the difficulties that a judge has in determining reliability and credibility of the plaintiff. There may also be significant differences between the doctors themselves. The judge has to try to analyse the documentary material presented to this fashion by reference to the testimony of the plaintiff. Discrepancies tending to undermine the reliability of the plaintiff’s evidence are nevertheless present because they are contained in a report and not deposed to by oral evidence of the doctor. The practice of producing evidence in this manner does not relieve the judge of the obligation of evaluating the plaintiff’s symptoms against the background of expert evidence.
49. In regard to medical reports, the Court of Appeal is in as good a position as the trial judge to understand the contents but as to their impact on the case, the judge is better located and his view superior provided he has analysed the case in light of all the evidence and has expressed his rationale. That is the most valuable assistance that the trial court can provide for the appeal.
50. This court greatly appreciates the assistance of the trial judge’s evaluation of the case and accords it great respect. The more carefully the trial judge approaches his task, the greater the reluctance that the appeal court has in interfering with the award. The settled jurisprudence of the Supreme Court emphasises this point. At the same time, the Court of Appeal cannot abrogate its own responsibility to entertain an appeal which a party has a constitutional right to bring.
51. Turning to this particular case, it is clear that the plaintiff’s credibility as to the extent of her complaints was a major issue. The accident was not a particularly severe one but that did not exclude the possibility that the plaintiff would suffer a significant injury. The real question was how severe were the problems that the plaintiff was suffering from as a result of the injuries she sustained in the accident. Counsel for the defendant cross-examined the plaintiff on the basis that she was grossly exaggerating her complaints. He put to her evidence that was subsequently adduced from a private investigator who had obtained video footage that counsel suggested was wholly in conflict with her testimony in court. This court had the opportunity of seeing some of the video evidence, which demonstrated that the plaintiff appeared to have no difficulty in raising her right arm and hand above her head and waving to family members in a playful and seemingly entirely painless manner and doing so repeatedly on a family occasion of a summer trip to the beach. Moreover, the plaintiff appeared to be able to lie on her right side without difficulty. These two particular features were points that the plaintiff had described in her evidence.
52. In the circumstances, there were issues of credibility and reliability that were general and specific. Did this video evidence undermine the plaintiff’s credibility overall? How could the plaintiff’s presentation on this summer outing be reconciled with the evidence she gave about specific disabilities in regard to the use of her right arm and lying on her right side? I am afraid that it was insufficient and unsatisfactory for the trial judge simply to declare that he believed the plaintiff and not have engaged in a process of analysis on these important questions that were raised in the trial. It does not follow that the result had to be wholly adverse to the plaintiff but it is difficult to see how this objective video footage did not impact upon the plaintiff’s reliability to some degree at least. Unhappily, the judgment does not deal with this.
53. The problem in the case is that this court is left with a very unsatisfactory situation. The judge took a favourable view of the plaintiff, as he was undoubtedly entitled to do. He could assess damages by reference to the medical reports and to the plaintiff’s evidence, accepting the latter as being substantially true if that was his conclusion following his analysis of the issues and ultimate resolution of the conflicts in evidence.
54. In my view, the proper approach in this case is to accept that the trial judge was satisfied as to the general credibility of the plaintiff and to examine the award of damages against the background of the medical reports but making allowance for the clear evidence that was demonstrated as mentioned above. I do not think that this court should independently make allowance for a diminution of the plaintiff’s credibility generally, notwithstanding my view that the trial judge should have embarked on that consideration. I confess that I am uneasy not only about the video evidence but also because of the withdrawal on the morning of the hearing of a very large capital claim for past and future care. However, in deference to the judge’s superior position as to the plaintiff’s evidence, I would merely engage in a correction exercise as to the particular findings that the judge made and then consider the damages award in that light.
55. My approach accordingly is to accept the trial judge’s general evaluation of the plaintiff at its height and to see whether his award of damages was on that basis wholly disproportionate, as the defendant submits.
Damages
56. Having considered the judgement of the trial judge against the backdrop of the evidence, I am satisfied that he made two findings of fact that cannot be supported by the evidence. The first of these was his finding that the plaintiff could not lift her right arm over the horizontal. The evidence was clearly to the contrary as shown on the video where she is to be seen vigorously waving overhead on a number of occasions in relatively quick succession. It would seem to follow that his related finding that the plaintiff was thus unable to carry out any overhead work was also misplaced. Secondly, he found as a fact that the plaintiff was still taking medication in respect of her injuries as of the date of trial. However, under cross examination she conceded that the medication she was taking was the same as that which she had in any event been taking for her unrelated back condition as of the date of her accident. These erroneous findings would have had the effect of significantly increasing the award of damages to which the plaintiff was lawfully entitled.
57. As to whether the award made by the trial judge was proportionate having regard to the findings of fact, findings which were in any event in error to the extent referred to in the last preceding paragraph, I regret to say that I am satisfied that the award was disproportionately large.
58. The first matter worth noting, in terms of the assessment of damages, is that the accident itself, a rear ending of the vehicle in which the plaintiff was travelling, would have to be considered relatively un-traumatic when compared to most other road traffic accidents, where, at the top end of the spectrum one finds the high speed head on collision in which passengers may be killed, thrown from their vehicles or trapped in mangled or burning cars.
59. Next, of significance is the fact that the plaintiff had no injuries that required hospitalisation or immediate treatment. She did undoubtedly require a number of surgical interventions. She had a manipulation of her shoulder under a general anaesthetic as a day case in February 2012, an injection into the shoulder in November 2012 and in May 2013 underwent an arthroscopic decompression and rotator cuff repair. Once again this procedure was carried out as a day case. These were, according to Mr O’Riordan, all minimally invasive procedures and to put it bluntly, were of an extremely modest nature when compared to the types of significant surgery often required by those involved in much more traumatic and serious accidents.
60. It is without contest that the plaintiff required extensive physiotherapy and assistance from pain killing medication for some unascertained period, but the restriction on her day to day activities up to the date of trial, a period of somewhat more than three and a half years, was very modest in the context of the type of restrictions faced by many plaintiffs who sustain personal injuries. As already stated, the medication she was taking as of the date of the trial was no different to that which she had been taking in respect of her back condition as at the date of her accident, a good indicator for the purposes of assessing damages for pain and suffering to date and indeed into the future.
61. On the evidence the plaintiff was not in any major way restricted by her injuries. She was mobile from the outset and she remained able to enjoy normal family life and leisure activities, facts readily ascertainable from the video which this court had the benefit of viewing and in which she is shown engaging fully with her family in the context of a day out on the beach.
62. While the plaintiff asserted that she had difficulty carrying out certain household activities and that she had recruited the help of friends and family to help her with these because they would otherwise have caused her discomfort, it must be remembered that the plaintiff did not carry out these activities herself and thus was not placed in a position of experiencing the pain and discomfort she might otherwise have experienced if she had done so. It seems likely that the claim advanced for past care and which she withdrew for reasons that remain somewhat unclear, in all likelihood, encompassed such assistance.
63. At trial the plaintiff advised the court and the trial judge proceeded to find that she was capable of carrying out all of the normal activities of daily living even if these caused her some discomfort. It must be assumed that the plaintiff’s discomfort in this regard will be no more than minimal. If the position were otherwise she would hardly have withdrawn the entirety of the claim she had made for future care. The only logical inference to be drawn from that decision is that she is capable of doing all that is required with no more than minimal discomfort.
64. As to her future in respect of her shoulder and arm function, the plaintiff’s own doctors advised that she would improve further even if she was unlikely to fully return to her pre accident status. It was not in dispute that she would continue to have reduced internal rotation but this was not expected to interfere with her day to day activities. Such a restriction, as was advised by Mr O’Riordan, was usually only relevant in the context of sporting activity, a matter to which the plaintiff did not refer in the course of her evidence.
65. The trial judge accepted that the plaintiff had suffered a significant injury and awarded her a total sum of €120,000 in respect of pain and suffering (€90,000 to date and €30,000 into the future). In all the circumstances that sum was wholly disproportionate to her injuries. Although they might have been characterised as significant in so far as they reflected a departure from the state of health which she had enjoyed prior to the accident, they are undoubtedly at the lower end of the scale ranging from the minor to the most severe. For my part I am satisfied that the award was disproportionate and excessive to the point that it should be set aside.
Conclusion
66. To conclude, this is a case concerning injuries which can at best be described as relatively modest when considered in the context of the entire spectrum of personal injury claims. Adopting the approach set out above and thus giving all credit to the plaintiff for the credibility finding in her favour, the reasonable and proper award is in my judgment €50,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future.
67. I would allow the appeal and vary the Order of the High Court accordingly.
Shannon -v- O’ Sullivan
[2016] IECA 93
Irvine J.
Peart J.
Hogan J.
JUDGMENT of Ms. Justice Irvine delivered on the 18th day of March 2016
1. This judgment is delivered in respect of the defendant’s appeal against two awards of damages made by the High Court (Donnelly J.) on 25th March 2015 at the Kilkenny High Court.
2. The learned High Court judge awarded Mrs. Rita Shannon a total award of damages of €131,463 comprising €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463. She awarded Mr. Anthony Shannon a total sum of €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.
3. The defendant maintains that each of the aforementioned awards were excessive to the point that they should be set aside.
Background
4. Mrs. Shannon was born in July 1960, is a married lady and a mother of two children. Mr. Shannon, was born in May 1957 and is a factory worker.
5. On 7th November 2012 Mr. and Mrs. Shannon were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs. Shannon was travelling as a front seat passenger in her husband’s vehicle when the defendant’s car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed.
6. In the High Court, the defendant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. They did so in reliance on the following assertions:
(i) That the plaintiffs had not proceeded directly to hospital, as they had initially claimed, but had gone there several hours after the collision.
(ii) That while Mr. O’Sullivan maintained he was examined in the hospital, no records existed concerning such examination.
(iii) That the plaintiffs had both sought medical attention for the first time on 1st December 2012, several weeks post-collision.
(iv) That the plaintiffs did not attend their long-established General Practitioner, but attended a retired General Practitioner, Dr. Sean McCarthy, who had been recommended to them by Mrs. Shannon’s brother.
(v) That the plaintiffs had no further medical review until they were seen by Dr. McCarthy for the second time in February 2014, at which stage they were both sent for an MRI examination and referred to a consultant psychiatrist.
(vi) That both plaintiffs had been referred to Prof. Michael Molloy, Consultant Rheumatologist, in May 2014 and were then both referred for EMG studies.
(vii) That both plaintiffs were later diagnosed with psychological injuries.
7. All of the aforementioned matters, and indeed several other issues of credibility, were canvassed with the plaintiffs and their doctors, i.e., Dr. Sean McCarthy and Prof. Molloy, Consultant Rheumatologist. In addition, the court had the benefit of hearing the evidence of the defendant’s own orthopaedic surgeon, Mr. Michael O’Riordan.
Trial Judge’s Assessment
8. Having considered all of the evidence, the trial judge delivered a lengthy and considered judgment in the course of which she dealt with the issues of credibility, causation and the extent of the plaintiffs’ injuries.
9. As to credibility, the High Court judge found the plaintiffs to be honest and extremely hard working people. Neither had missed a day’s work as a result of their injuries. She drew no adverse inferences from the facts that had been established by the defendants relating to the credibility issues to which I have already referred. The fact they had not attended a doctor for 14 months after their initial attendance she considered to be evidence of stoicism on their part, and the fact that they had made no claims in respect of loss of earnings she considered was evidence of honesty.
10. As to the cause of the stretching/bruising-type injury to a nerve in Mrs Shannon’s neck, the High Court judge accepted Prof. Molloy’s evidence that this injury, which was evidenced in EMG studies, was likely caused by the road traffic accident. She concluded that this injury had become chronic, would continue to affect the plaintiff into the future, and that there was some possibility she might require surgery. The trial judge also accepted Prof. Molloy’s evidence that the collision had rendered symptomatic Mrs. Shannon’s pre-existing but previously asymptomatic degenerative changes in her neck. In this regard she had received two injections from Dr. McCarthy.
11. As to the future, the trial judge concluded that as a result of the aforementioned injuries the plaintiffs’ pain had become chronic and would continue into the future. Further, she accepted Prof. Molloy’s evidence that there was some possibility of surgery in the future.
12. As to psychological/psychiatric injury, the trial judge did not accept that Mrs. Shannon’s symptoms had been as severe as she had maintained when she was seen by Dr. Neville, consultant psychiatrist. Had they been severe she would likely have mentioned them to her own General Practitioner, Dr. Walsh, whom she had attended with depression four months prior to her accident and later again in July 2012 in respect of another personal matter. Accordingly, the High Court judge rejected the diagnosis made by Dr. Neville that Mrs. Shannon had suffered Post Traumatic Stress Disorder. That said, she accepted that she had experienced flashbacks and nightmares and had had difficulty sleeping post accident. While these symptoms had abated, she continued to suffer symptoms of ongoing depression which required anti depressant medication. The plaintiff’s prognosis was guarded and her recovery from a psychological perspective depended upon the resolution of her physical symptoms.
13. As to Mr. Shannon’s physical injures, the trial judge accepted that he had also sustained a stretching-type injury to a nerve in his neck. She also concluded that, prior to the accident, he had asymptomatic degenerative changes in his neck which had been rendered symptomatic by the collision. As a result of these injuries, he had symptoms of stiffness and he also experienced tingling in his fingers following physical activity. The latter had eased off. He had received two injections from Dr. McCarthy but no other treatment was advised. At the date of the trial Mr. Shannon was taking over the counter painkillers, but only on an irregular basis.
14. As to the future pain and suffering likely to be experienced by Mr. Shannon arising from his physical injuries, the trial judge concluded that his symptoms had become chronic and were likely to continue into the foreseeable future.
15. As to Mr. Shannon’s psychological injuries, the trial judge accepted that he been shocked and frightened by the collision and that he had made such a complaint to Dr. McCarthy on his first attendance. He had not required any medical attention in respect of his stated anxiety until such time as he was referred to Dr. Morrison, consultant psychiatrist, by Dr. McCarthy in February 2014. The trial judge accepted Dr. Neville’s diagnosis that in the aftermath of the collision Mr. Shannon had developed Post Traumatic Stress Disorder. However, she concluded that his symptoms had been “mild” and less severe than those experienced by his wife. He had required no treatment i.e. no physiotherapy or cognitive behavioural therapy. She was satisfied that after his symptoms of Post Traumatic Stress Disorder had abated that he continued to have an adjustment reaction with mixed emotions of anxiety and mild depression but in respect of which he was not making any major complaints of continuing ill effects.
16. In conclusion, the trial judge found that Mr. Shannon, who was 57 years of age at the time, had developed a significant and permanent condition as a result of the road traffic accident and that in respect of which he would continue to be symptomatic into the future.
Submissions
17. Mr Finbar Fox S.C. on the defendant’s behalf makes a relatively straightforward submission in relation to both cases. He states that the sum awarded by the trial judge was excessive in each case both in respect of pain and suffering to date and pain and suffering into the future.
18. Insofar as Mrs. Shannon’s case was concerned, Mr. Fox drew the courts attention to the fact that as of the date of trial only two years and four months had elapsed since the date of the accident. During the first 15 months of that period, Mrs. Shannon had required practically no medical intervention or treatment. Between February 2014 and the date of trial, while there had been a greater medical presence in her life she had received practically no treatment of any type. Further, the evidence was that psychiatric symptoms had been at their worst in the first year. She had missed no time from her work and gave no evidence that her enjoyment of any other activities had been adversely affected. That being so the award of general damages to date of €50,000 was excessive.
19. Insofar as the award of €80,000 in respect of pain and suffering into the future was concerned, Mr. Fox relied upon the fact that it was not expected that the plaintiff would require any medical treatment. It was not suggested that her work or leisure activities would be impaired in any way. Beyond evidence that the plaintiff had good days and bad days in terms of pain in her neck or tingling in her forearm, and that there was a possibility of future surgery in respect of the stretched nerve in her neck, there was nothing in her medical condition or prognosis to support an award of that magnitude.
20. As for Mr. Shannon, breaking the claim down in the same fashion, Mr. Fox submitted that he too had required practically no medical or intervention over the 15-month period immediately following upon the collision. He had received no treatment of any type. He continued to work and made no complaint that his leisure activities had been interfered with. Between February 2014 and the date of trial, as in his wife’s case, there had been a greater medical presence but little by way of treatment. There was nothing he could not do and nothing had been taken from him in terms of his enjoyment of life. In such circumstances, the award of €35,000 in respect of pain and suffering to date was excessive.
21. As to the award of €50,000 in respect of pain and suffering into the future, Mr. Fox submitted that there was no evidence from any medical practitioner, or indeed the plaintiff himself, such as would justify an award of that nature. There was no suggestion he would require any treatment or medication into the future. Further, he would not be restricted in any of his activities.
22. Mr. Fox submitted that the severity of the injuries sustained by both plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or had deprived them of their ability to participate in activities which they would otherwise have enjoyed. Measured in this way, the awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.
23. Mr. Aidan Doyle S.C. on the plaintiffs’ behalf submitted that the awards that had been made by the learned High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.
24. As to Mrs. Shannon’s injuries, counsel submitted that there was objective evidence of disc encroachment on a nerve causing ongoing pain and that her symptoms had become chronic to the point that it was probable she would be symptomatic indefinitely. She had sustained nerve damage for which she had required two injections into her neck and she remained at risk of surgery in this regard. Her pre-existing degenerative changes in her neck had also become symptomatic. In addition, Mrs. Shannon had sustained a psychiatric injury and in the initial aftermath of the collision had experienced symptoms of flashbacks, nightmares and sleep disturbance. While she was significantly improved as of the date of trial, she nonetheless continued to experience symptoms of depression in respect of which she was still taking medication and in circumstances where her prognosis was guarded.
25. Mr. Doyle submitted that Mrs. Shannon’s injuries should not be equated with the straightforward whiplash-type injury often seen in the courtroom setting. The fact that she had not received significant treatment nor required time off from her job, should not be relied upon as evidence that her injuries were not severe, particularly given that the trial judge had taken the view that these factors were indicative of stoicism on her part.
26. Mr. Doyle submitted that an assessment of damages should not be carried out by reference to some imaginary scale of quantum, where, at the bottom of such scale, minor injuries were to be found which attracted very small damages and at the top, catastrophic injuries in respect of which general damages of in or around the €450,000 figure was the appropriate compensation. He submitted that awards at the highest end of the scale were, in reality, capped by reason of the fact that those plaintiffs were recovering substantial sums of money in respect of special damages. Thus, it would be unfair to assess the plaintiff’s entitlement to damages by reference to where, on such a scale the plaintiffs injuries were to be located.
The Principles to be Applied
27. It is accepted by the parties that, as per the judgment of McCarthy J. in Hay V. O’Grady [1992] 1 I.R. 210, as this Court did not see and hear the witnesses give their evidence, it is bound by the findings of fact made by the learned High Court judge insofar as the same are supported by credible evidence. In this case, there is no suggestion that the findings of the trial judge were not so supported.
28. In these circumstances, this court may only overturn the awards of damages made if it is satisfied that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.
29. The task of a judge sitting in an appellate court when asked to interfere with an award of damages made in the High Court was described in the following manner by Lavery J. in Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92 :-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case were personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
30. The same issue was considered by Fennelly J. in Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578, where he described the role of the appellate court in the following manner:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, ‘would be inclined to give’ (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question ‘whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable’. The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against ‘relatively petty paring from or adding to awards’. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, and of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
31. It is clear from the aforementioned authorities that an appellate court should not interfere with the award of a trial judge if it is only for the purpose of making some moderate adjustment. This is because the appellate court has not heard or seen the witnesses give their evidence and must accordingly be cautious about second guessing the trial judge’s assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not proportionate to the injuries sustained and where it considers the award made constitutes an erroneous estimate of the damages properly payable.
The Quantification of Damages
32. It has long been accepted that awards of damages must be:-
(i) fair to the plaintiff and the defendant,
(ii) proportionate to social conditions, bearing in mind the common good
and
(iii) proportionate within the scheme of awards made for other personal injuries (see MacMenamin J. in Kearney v. McQuillan & North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
33. However, even where awards are made in accordance with these principles, the goal of damages, which is to put the plaintiff back in the position that he or she was in before they sustained their injuries, is, in most cases, unattainable. This is particularly so in the case of serious injury.
34. As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
35. Insofar as Mr. Doyle has submitted that the plaintiffs claim should not be measured on a scale of damages which starts at zero and ends at €450,000, on the basis that €450,000 is not in fact the top of the scale because damages are capped at that level for those who suffer catastrophic injury and receive very significant awards by way of special damage, I reject that proposition.
36. It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
37. It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
38. It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.
39. The plaintiff in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“.. probably the most serious condition that a person can suffer as a result of personal injuries.”
The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
40. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, costs and expenses, past and future, which it was the purposes of special damages to cover in full and the award of compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his damages reduced because he has received due recompense for his out of pocket expenses and future needs.
41. Accordingly, coming back to the facts of the present case, I remain of the view that it is reasonable to view the plaintiff’s injuries in the context of the entire spectrum of personal injury claims where, at the outer end, a plaintiff might expect to recover damages somewhere in the region of €450,000. I accept that there may be individual cases in which, having regard to their own specific facts, a judge might rightly decide to exceed that sum.
42. As to where on the spectrum of awards Mr. and Mrs. Shannon’s injuries should be located depends upon extent to which, as a result of the defendant’s wrongdoing, they have suffered and will continue to experience, inter alia, pain, suffering and loss of enjoyment of life. While it is important to understand the nature of their injuries and the relevant medical diagnoses, far more important is the evidence concerning the extent to which those injuries have already and may in the future adversely affect their lives. The value of an injury cannot be determined by the label attached to it. For example, for a judge to state that they were satisfied that a plaintiff suffered from let us say an adjustment disorder or a stretching injury to a nerve would of course be helpful and relevant to the court’s understanding of their condition. However, such a finding needs to be followed up with the trial judge’s assessment as to the consequences for the plaintiff of such an injury. An appellate court needs to know the trial judge’s assessment as to the severity of the symptoms generated by the condition, the treatment undertaken or to be undertaken in respect thereof and the extent to which the symptoms and/or treatment have or will interfere with the plaintiff’s enjoyment of life and for what period.
43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the plain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.
45. It is not possible to catalogue all of the elements to be considered and potentially addressed by a trial judge in a personal injuries case. However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
Decision
46. I find myself in the unenviable position of having to take issue with the conclusions of the learned High Court judge who clearly gave great care and consideration to each of these claims before delivering a lengthy and thoughtful judgment. I fear that she became caught up in the difficult task of deciding the credibility issues raised for her consideration, with the result that she did not provide a sufficient analysis of her reasons for making such large awards in favour of these plaintiffs.
47. Undoubtedly, the trial judge considered the plaintiffs’ injuries to be “significant”, because this is what she said in her judgment, and she then proceeded to assess damages, in the case of both plaintiffs, on that basis. However, her reasons for reaching such a conclusion are not obvious. While the trial judge described in medical terms the nature of the physical and psychological injuries sustained by the plaintiffs and went on to identify how these injuries were borne out by EMG and MRI studies, her analysis of the effect of such injuries on the plaintiffs is not sufficiently detailed to support awards of the magnitude which she made. It is vital that judges in personal injuries cases set out their conclusions as to the consequences for the plaintiff of the injuries sustained in terms of pain, suffering and loss of enjoyment of life, both past and future. Without that reasoning an appeal court is somewhat left in the dark as to the rationale behind the award.
48. The trial judge concluded that both plaintiffs had suffered an injury to a nerve in their neck, causing cervical radiculopathy. She also concluded that it was possible that Mrs. Shannon might require surgery in respect of this injury at some future date. She was also satisfied that both plaintiffs had suffered soft tissue injuries to their neck and shoulders and that in relation to the former, that asymptomatic pre-existing degenerative changes had been rendered symptomatic by the collision. She concluded that these injuries had and would have a significant effect on their lives.
49. In this case, it is difficult to see much evidence of pain, suffering, treatment or limitation on life style such as would support an award of general damages to Mrs. Shannon in the sum of €50,000 and in the case of Mr. Shannon of €35,000 in respect of the two-year and four-month period between the date of the accident and the date of trial. I will deal with the conclusions of the trial judge in respect of the plaintiffs’ physical injuries before turning to her findings in respect of their psychological injuries.
50. The trial judge accepted that they were both assessed in hospital on the evening of the accident. However, they were not detained and did not require any medical intervention or treatment. Whatever symptoms they may have had did not preclude them from going to work the next day and living what appeared appears to have been a relatively normal life until such time as they both went to Dr. McCarthy on 1st December 2012. On that date, both plaintiffs were prescribed painkilling medication, i.e., Tylex for one month.
51. It is undoubtedly the case that the trial judge found that the plaintiffs were both suffering from pain in the neck and shoulder at this stage. However, it is to be noted that Dr. McCarthy did not consider their injuries sufficiently serious to refer them for further expert advice or investigation. Neither did he consider their complaints sufficiently serious to advise them that they should come back for review after any stated period. It is common case that neither of them returned to seek any further advice, treatment or medication until February 2014, some 13 months later.
52. The trial judge clearly addressed the implications of the plaintiffs’ lack of engagement with the medical process over that period and concluded that this was because they were stoical, and that may well be so. However, the fact that they did not return seeking further medication, treatment or advice has to be somewhat indicative of the level of pain and suffering that they were experiencing.
53. Because the court usually has only the plaintiff’s evidence as to the extent of their pain, is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment. In that regard, it is common case that most people who sustain injury and have consequential pain seek medical intervention and, if necessary, treatment. The needs of the injured party are usually at their greatest in the days, weeks and months following injury when engagement with the medical and allied professions is likely be at its most intense. Further, it is usually during these periods that plaintiffs who suffer minor or modest injuries are most affected in terms of their ability to work and/or participate in sports, hobbies or pastimes. It must be inferred from the fact that the plaintiffs were both in a position to continue to work, were able to participate in their normal day-to-day activities and did not feel the need to attend a doctor between December 2012 and February 2014 that their symptoms over this period were relatively modest.
54. As to the period between February 2014 and the date of trial, it is true to say that Mr. and Mrs. Shannon were referred for MRI and EMG studies and were also referred for specialist review by Dr. Morrison and Prof. Molloy. While these referrals led to a number of diagnoses being made, such as a stretching or bruising of a nerve and Post-Traumatic Stress Disorder, the lives of the plaintiffs continued on, much the same as they had done over the earlier 13-month period, the only difference being that they each received two injections from Dr. McCarty in respect of their respective nerve injury. Both continued with their work, neither of the missing a day. Neither did they have to abstain from any of their normal activities. Mr. Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Mrs. Shannon confirmed that she was able to mind her grandchildren and go to the gym.
55. Of some further assistance in terms of determining the extent of the impact of the injuries sustained on the plaintiffs’ lives must be the fact that at no time did either of them, as an individual, attend a medical practitioner to seek help, treatment or medication in respect of their symptoms. On each occasion they attended Dr. McCarthy, which was only three times in total, they went together. On the only occasion they attended Prof. Molloy, they went together. Likewise, they attended together with Dr. Morrison and later with Dr. Neville, she having been retained due to Dr. Morrison’s unavailability. So while the plaintiff’s may have been symptomatic, neither of them ever had any acute episode or a period of individual pain which required them to seek advice, treatment or medication.
56. Insofar as the plaintiffs’ psychological injuries are concerned, I have detailed these earlier at para 12 and 15 of this judgment, so I will not repeat them here. Suffice to state that I find it difficult, from the judgment of the trial judge, to assess the extent to which she likely relied upon the plaintiffs’ psychological injuries when she came to assess the amount of damages to be awarded in respect of pain and suffering to date. While she made findings of fact concerning the psychiatric injuries sustained by both plaintiffs and charted their recovery, she did not state her conclusions as to the severity and frequency of their symptoms such as flash backs and nightmares, nor her conclusions as to the extent to which and over what period these affected the plaintiffs in their enjoyment of everyday life.
57. What is clear, however, is that regardless of the existence of symptoms such as those last mentioned, the severity of the plaintiffs’ symptoms was not such that they felt it necessary to seek any professional assistance. It was only following their attendance upon Prof Molloy in 2014 that they were ultimately referred for psychological review.
58. Insofar as pain and suffering into the future is concerned, while the trial judge clearly took the view, in Mrs. Shannon’s case, that she would continue to suffer some tingling in her arm and pain and discomfort in her neck because her condition had become chronic, regrettably, she does not detail the symptoms or limitation on lifestyle that explain an award of the magnitude of €80,000. She did not, for example, identify what she believed Mrs. Shannon would likely experience in terms of pain arising from the chronicity of her symptoms, and without such analysis an appellate court is in a position of some difficulty when asked to review a trial judge’s award of general damages. It needs to know the trial judge’s conclusions as to the likely frequency, severity and duration of any adverse sequelae. Obviously, a plaintiff who is expected to suffer modest pain which can be relieved by over-the-counter medication for a couple of hours a week will attract an entirely different award of damages to the plaintiff who is expected to experience lifelong pain on of the type that cannot be controlled by medication. Further, an appellate court needs to know the conclusions of the trial judge as to the likely effect that any anticipated pain will have on a plaintiff’s lifestyle, hobbies and work.
59. However, this fact notwithstanding, I think it can reasonably be inferred from:-
(i) her lack of any apparent need for prescribed medication, other than Tylex for a month post accident,
(ii) the fact that her only medical treatment consisted of two injections given by Dr McCarthy in 2014,
and
(iii) the fact that she required no rehabilitative intervention of any sort and (iv) that she had not been disrupted in her working, leisure or sporting activities, that Mrs Shannon was unlikely to experience anything significant in terms of pain or discomfort or limitation in lifetime activities post the date of trial.
60. Insofar, as a trial judge may conclude, as occurred in the present case, that a plaintiff remains at risk of surgery, an appellate court needs to know whether the judge considered that risk to be minimal or substantial. It also needs to know what such surgery would entail in terms of pain and suffering, the relevant recuperation period and the likely prognosis. If the risk of a surgical procedure is 50% as opposed to 5% this will obviously sound in damages. Likewise, the extent of any such surgical intervention and the plaintiff’s likely prognosis are all material to the damages to which the plaintiff is entitled.
61. In this case, however, all we know from the judgment of the trial judge is that she factored into her consideration, when awarding damages for pain and suffering into the future, the fact that the plaintiff remained at risk of surgery in respect of the bruising injury to the nerve in her arm. The extent of that risk is not mentioned nor any detail given as to what the surgery, if it were required, would involve. The fact that she did not do so, to my mind, was because none of these issues were canvassed in any detail with Prof. Molloy, who was the witness who had advised as to the possibility of such surgery. Absent that detail, I am not satisfied that there was sufficient evidence to entitle the trial judge to make an award which included compensation for the possibility that she might require future surgery.
62. A similar problem arises in respect of the trial judge’s conclusion that the plaintiff had developed a depressive illness which required antidepressant medication and in respect of which the prognosis was guarded. The trial judge did not identify the extent to which she expected such condition to impact upon the plaintiff’s life nor whether her symptoms were fully or partially controlled by medication. What is clear, however, is that up to the date of trial, there was little evidence to suggest that the plaintiff’s psychological symptoms had not adversely affected her from a vocational or social perspective. Thus, it might reasonably be inferred, notwithstanding the absence of any specific guidance from the trial judge, that Mrs. Shannon was unlikely to suffer much by way of psychological problems deriving from her road traffic accident into the future.
63. When it came to her assessment of Mr. Shannon’s injuries, the trial judge concluded that his injuries were less severe than those sustained by his wife but that he was likely to remain symptomatic indefinitely because of the accident. Unfortunately, however, she does not state her conclusions as to the frequency or severity his pain or emotional upset and she appears to have placed little reliance upon the fact that he was not limited in his work or leisure activities as a result of his injuries.
64. It is true to say, as already advised, that the trial judge concluded that the reason why Mr Shannon did not stay out of work was because he was stoical, and this court must accept that finding. However, it must be inferred from the fact that he was in a position to remain at work and never missed a single day that his pain, whatever its frequency, was manageable to the point that his life remained much as it was prior to the collision. His sole expressed limitation was casting a line when fishing and with the exception of two injections administered by Dr McCarty, he received no treatment of any nature.
65. Insofar as the trial judge’s award for damages for pain and suffering into the future is concerned, she clearly based her award on her conclusion that the degenerative changes in Mr Shannon’s neck would likely continue. However, as in the case of Mrs Shannon, the she did not identify the nature and extent of any pain, suffering lifestyle limitation that he would likely experience as a result. I have already expressed my view that a trial judge must support any such award by reference to their conclusions on such matters. Without that detail it is difficult for an appellate court to assess whether an award of general damages was reasonable, just and proportionate having regard to the injuries . These difficulties notwithstanding, in my view, the was nothing in the evidence to suggest that Mr Shannon would experience much by way of pain or discomfort into the future. His symptoms prior to trial had not impacted on his ability to fully engage with all aspects of daily living, and there was no evidence to suggest that his condition would deteriorate.
Conclusion
66. Regardless of the deference which an appellate court must afford to the judgment of the trial judge, for the reasons already stated I am satisfied that the awards of general damages in favour of these plaintiffs were not just and fair or proportionate to the injuries they received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.
67. I’m quite satisfied that had the trial judge assessed the significance of the plaintiffs’ injuries by reference to the severity of other injuries which fall within the entire spectrum of personal injuries claims and the awards commonly made in respect of thereof and, had she had regard to factors such as those earlier identified at paragraph 42 of this judgement, she would likely have made a significantly lesser award in each case.
68. As to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, I am quite satisfied that their claims must fall towards the bottom end of the scale which has minor injuries at one extremity and catastrophic injury at the other. In this context their injuries must be viewed as modest indeed. I accept, of course, the trial judge’s finding that Mrs Shannon’s injuries were slightly more severe than those of her husband. However, in order for their awards to be fair and proportionate, they too must be modest. That being so, in Mr Shannon’s case I would set aside the award of the trial judge in respect of general damages and would propose in its place an award of €25,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future. In Mrs Shannon’s case I would likewise set aside the award of the trial judge in respect of general damages and propose an award of €40,000 be made in respect of pain and suffering to date and €25,000 in respect of pain and suffering into the future.
Kevin Keegan ( Kevin Duke) v Dunnes Stores
2017 174
Court of Appeal
25 March 2019
unreported
[2019] IECA 88
Mr. Justice McGovern
March 25, 2019
JUDGMENT
1. This is an appeal from a decision of Barr J. made on the 3rd March, 2017 in which he held the appellant liable in negligence for an accident at work suffered by the respondent. The trial judge held the respondent to be guilty of contributory negligence to the extent of 20%. Having assessed damages at €45,000, the sum was reduced to €36,320 on account of contributory negligence and the respondent was granted costs on the Circuit Court scale to include reserved and discovery costs as well as a certificate for senior counsel. Although liability was in issue, the trial judge placed a stay on execution for a period of twenty-eight days on the undertaking of the appellant to pay to the plaintiff the sum of €15,000 in respect of damages and €5,000 in respect of costs.
2. While the appellant appealed the entire of the judgment, at the hearing of the appeal the trial judge’s findings on quantum were not challenged and the appeal was confined to the liability issue.
Background
3. The respondent was at all material times an employee of the appellant at Dunnes Stores, The Mill Shopping Centre, 9th Lock Road, Clondalkin, Dublin 22. On the 20th October 2013, he went into the freezer room to collect some frozen pizzas to bring out onto the shop floor. In order to access the pizzas, he stood on a pallet and when he was stepping off the pallet his foot became entangled in some shrink wrapping which was on the pallet and on the floor immediately adjacent to it.
4. In the accident the plaintiff sustained a fracture of the cuboid bone in his right foot.
Evidence on issue of liability
5. In the course of his evidence the respondent said that he commenced working for the appellant in November 2011 and entered an induction programme which included training which stressed the importance of housekeeping and keeping floors and other work areas free of obstruction. He accepted that he and his fellow employees had been instructed to “clean as you go” and that this meant if there was a hazard present in the work place they would have to clean it up. The respondent also accepted that he attended a refresher course in August 2012.
6. Some important background information emerged from the evidence. The accident occurred between 4 p.m. and 5 p.m. on a Sunday afternoon which was a relatively quiet time for the store. The respondent accepted that he was not under pressure to perform the task in which he was engaged. The quality of the lighting in the cold store was good and the area was not cluttered. Within five or ten minutes of the accident Ms. Kamma Kryzak, the deli manager, arrived on the scene of the accident and took photographs. It was accepted by the respondent that the photograph produced in court represented the general condition of the freezer store room at the time of the accident. The respondent also accepted that the shrink wrap or cling film on the pallet and floor was obvious and that he should have seen it.
The law
7. Section 8(1) of the Safety, Health and Welfare At Work Act 2005 states:
“Every employer shall ensure, so far as is reasonably practicable , the safety, health and welfare at work of his or her employees.” [emphasis added]
8. Section 8(2) sets out in more particular terms that the employer’s duty extends to a number of listed matters, most of which are predicated on taking steps to ensure “so far as is reasonably practicable” the safety, health and welfare at work of the employee.
9. Section 13 of the 2005 Act imposes a statutory duty on an employee to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work”. There is also a duty to “attend such training and, as appropriate, undergo such assessment as may reasonably be requested by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee”. There are other duties also specified in s. 13 which are not relevant to this appeal.
10. It could be said that the provisions of s. 8 of the 2005 Act do no more than reiterate, in statutory form, what was stated by Henchy J. in Bradley v. CIE [1976] I.R. 217 at 223:
“The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.”
11. In Fanning v. Myerscough [2012] IEHC 128, Ryan J. stated at para. 16:
“The onus on an employer seeking to establish contributory negligence is higher when the employee has proven breach of statutory duty as compared with common law negligence. There is of course a duty on every employee to take care of his own safety.”
12. In Bowell v. Dunnes Stores [2015] IEHC 613, Barton J. at para. 66 said:
“The fact that the plaintiff owed both a common law and statutory duty of care to himself in particular to comply with training and instructions which he freely accepts that he received but failed to comply with, does not absolve the defendant from complying with the common law and statutory duty of care which was placed on it for the safety of its employees, including the plaintiff.”
13. In Martin v. Dunnes Stores [2016] IECA 85, Irvine J. quoted from Henchy J. in Bradley v. CIE (above} and stated:
“Time and time again the courts, in personal injuries litigation, have stressed that the duty of the employer to their employee is not an unlimited one. The employer is not to be taken as an insurer of the welfare of their employees.”
14. At para 24 she stated:
“…In the context of this case it is reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: see Quinn v. Bradbury [2011] IEHC per Charlton J.”
15. The above summary of the statutory provisions and extracts from case law encapsulate the duties and obligations of the parties to this appeal.
Discussion
16. In the course of his judgment, the trial judge made a number of findings of fact. He accepted that the photograph taken by Ms. Kryzak showed the locus as it was at the time of the accident and he found that the freezer was not in a chaotic condition on that occasion. He was satisfied on the balance of probability that the shrink wrap had been left on the pallet and floor of the freezer room by an employee of the appellant as it did not appear that any third parties had access to the freezer to retrieve items from pallets. Those findings were supported by the evidence. He also referred to evidence given by the plaintiff and a former employee, Mr. Kiernan, that the freezer room was sometimes in a chaotic state and products did not have a designated place within it. The condition of the freezer on other occasions was not relevant to the issue of liability. But the trial judge deemed this evidence to be relevant to the issue of contributory negligence on the basis that when the respondent entered the freezer he did not know where the pizzas were likely to be and in such circumstances his gaze would have been directed to the boxes on the various pallets rather than on the floor of the freezer. In circumstances where the respondent had admitted, on more than one occasion, that the shrink wrap was perfectly obvious (Day 2, pp. 30 and 35), and having regard to his duty to keep a proper look out and the fact that he had received training to clear anything that might constitute a hazard it is difficult to understand how the trial judge approached the issue of contributory negligence in that way.
17. The trial judge was entitled to infer from the evidence that the presence of the shrink wrap on the pallet and floor was caused by another employee failing to tidy up as he/she went along with his/her work. Indeed, there has been no challenge to this finding. Nor do the appellants take issue with the proposition that — as a starting point – they are vicariously liable for the negligence of that employee.
18. The trial judge appears to have stopped his enquiry into the proximate cause of the accident at that point and did not consider properly the effect of the statutory duty imposed on the appellant to ensure, “so far as is reasonably practicable” the safety, health and welfare of the respondent. In the context of this case this involved a consideration of the obvious nature of the hazard and the training which the respondent had received and the fact that he was not under pressure to complete the task on which he was engaged.
19. The trial judge accepted that it was part of the respondent’s training that when he was sent to an area to work he should check the area carefully before commencing to work there and should remove any hazards in the area. But he went on to state at para 56 “it would be unreasonable to hold that this applies to all areas in the extended shop premises, to which he may be sent to retrieve items in the course of his working day”. The evidence before the court was that that the freezer room was an area where the respondent regularly worked as he had accepted that his function was the replenishment of goods in freezers on the shop floor from the cold store. (See Day 2, Q. 127). Furthermore, the case was opened on the basis that at the time of the accident he was assigned to the frozen food department and his job was to keep the freezers on the shop floor stocked with frozen food items from the freezer room.
20. At para 57 of his judgment, the trial judge went on to state:-
“It would be absurd to suggest that when an employee is sent to an area to fetch something needed on the shop floor, that he would be under a duty to assess and clean all the areas through which he would travel, including the area where the object was actually located. In other words, it would be unreasonable to argue that where an employee was sent to the stock room to retrieve an item, that he should clean the stockroom before getting the required item. This would also apply when an employee is sent to retrieve an item from the freezer. If he was expected to do such an exercise, there would be an enormous delay in bringing items back to where they were needed. It would be almost impossible to carry on operations in such circumstances. Accordingly, I decline to find that the plaintiff had to carry out any elaborate assessment of the freezer, prior to retrieving products from it.”
21. This characterisation of the duty of employees in the shop is unsupported by evidence. The respondent and other employees received training to clean as they went along. This meant that if they saw something on the floor which presented a hazard they were expected to lift it and dispose of it or put it away. It was never suggested in evidence that it was the role of employees to “assess and clean all the areas through which “[they]” would travel…” or that they “…should clean the stock room before getting the required items”. The question of general cleaning duties was never an issue in the trial. What was an issue was an ad hoc system of cleaning or clearing up items which presented a hazard to customers or employees.
22. At para 50 of his judgment the trial judge said:
“However, the fact that the plaintiff was not sent to work in the freezer as such, but was merely retrieving an item from that area, does not relieve him of the common law and statutory duty to take reasonable care for his own safety. The central question is, to what extent, if any, should he be held guilty of contributory negligence for failing to see the shrink wrapping as shown in the defendant’s photograph.”
23. While the trial judge recognises the respondent’s duty to take reasonable care for his own safety, the statement that the respondent was not sent to work in the freezer is at variance with both the opening statement at the commencement of the case and the evidence of the respondent himself who had clearly stated that his function was to take goods out from the cold store or freezer and put them on shelves in the shop as they were required. In answer to his own counsel the respondent has stated that “I was on the shop floor and I was instructed by either Kama or Vida to get pizzas for one of the displays. So I went into the cold store to retrieve the pizzas…” (see Day 2, Q. 9).
24. Having declined to find that the respondent was obliged to carry out any elaborate assessment of the freezer prior to retrieving products from it (para 57), the trial judge went on to state at para 58:
“The position would be different, where an employee is sent to a particular area to carry out some work, which would last for an appreciable length of time. In these circumstances, that area would become his work station. It would be reasonable to expect that the employee would assess his work station before commencing work in that area. He would be under a duty to tidy the area or to make it safe before continuing his work …” [emphasis added]
25. This was precisely the evidence of the respondent who said that he was sent to the freezer room to get stock and bring it out to the shop floor and that he did this regularly. In those circumstances, the trial judge fell into error in concluding that the respondent did not have a duty to properly assess the freezer room prior to retrieving product from it.
26. By interpreting the evidence as he did the trial judge concluded that the respondent was only guilty of contributory negligence to the extent of 20% notwithstanding the fact that the hazard was obvious, the room was properly lit and was not cluttered and he had received training to look out for potential hazards and clean them up as he went along. In so doing the trial judge’s conclusions were unsupported by the evidence.
27. While this court is not entitled to substitute its view of the evidence for that of the trial judge it has a role in conducting an analysis of the decision in the light of the evidence and the applicable legal principles.
28. In looking at the duty of the appellant to the respondent the court must look at the meaning of s. 8 of the 2005 Act. The inclusion of the words “so far as is reasonably practicable” in that section is important. Take out those words and you are left with strict liability on the part of the employer. It follows, in my view, that where a defendant/employer raises a defence of, for example, a proper training programme and a proper cleaning and maintenance regime, the court has a duty to analyse such evidence in the context of what is reasonably practicable. It seems to me that in this case the trial judge did not properly analyse the evidence so as to determine whether or not the appellant had established a defence based on those criteria. Neither did the trial judge adequately engage with the issue of the respondent’s common law and statute duty to take reasonable care for his own safety and follow the instructions he had been given in training.
29. It was reasonable, on the evidence, for the trial judge to conclude that the hazard was caused by another employee. Prima facie that would give rise to vicarious liability. But when one looks at paras 53 and 54 of the judgment the judge appears to move from a position where there was vicarious liability to a position of strict liability. In my view, this is an insufficient and incorrect analysis of the situation as it failed to have proper regard to the issue of causation and whether or not the appellant had taken such steps as were reasonably practicable to ensure the safety of the respondent.
30. If one accepts that the hazard was created by another employee of the appellant for which the appellant is vicariously liable one must then ask the question whether it has been established that, nevertheless, the appellant has taken such steps are as reasonably practicable for the safety of the respondent? In the light of the evidence in this case I think the answer to that question must be “yes”. The evidence was that the respondent underwent a rigorous training regime which, in part, was based on an assumption that from time to time he was likely to come across something which presented a hazard either on the shop floor or in the freezer room or some other area where he was required to work. It was to prevent such hazards occurring that employees were trained to clean as they went along. This would include cleaning litter or spillages on the shop floor which may have been caused by a customer or an employee, or cleaning up or removing a hazard in a restricted area caused by another employee whether inadvertently or through negligence.
31. In this case the hazard was clear and obvious and the accident occurred in an area which was not cluttered and was properly lit. While it is true to say that the accident would not have occurred but for the negligence of another employee in leaving the shrink wrap on the pallet and floor, the proximate cause of the accident was the failure of the respondent to keep a proper look out and adhere to the instructions he had received in training. Since the hazard was obvious it follows that if he had kept a proper lookout he would have avoided the accident. He accepted as much in his evidence. The trial judge made no finding that there were other reasonably practical steps which could have been taken by the appellant to ensure the safety, health and welfare at work of the respondent. That is the extent of their statutory duty and their common law duty does not go further than that.
Conclusions
32. In my view the trial judge did not carry out a proper analysis of the evidence in the light of the appellant’s statutory obligations and he reached conclusions which were not supported by the evidence. While the appellant was vicariously liable for the negligence of the employee who left the shrink wrap on the pallet and floor, the trial judge did not carry out a proper analysis of the proximate cause of the accident having regard to the entirety of the evidence. Had he done so the proper finding would have been to dismiss the claim. Therefore, I would allow the appeal.
33. There are two further matters on which I wish to comment. While the issue of contributory negligence no longer arises, the finding against the respondent of contributory negligence by the trial judge to the extent of only 20% was, in my view, entirely against the weight of the evidence. The trial judge directed the payment of €15,000 by way of damages and €5,000 in respect of costs as a condition of granting a stay for the purpose of this appeal. In my view, where liability is in issue, the judge at the end of a trial should not make an order for payment out except in special circumstances. Having had an opportunity of reading the transcript I find no special circumstances identified by the trial judge which would justify such an order. The court will hear counsel on the question as to whether it has power to direct repayment of those sums to the appellant or whether the matter should be sent back to the trial judge to deal with that matter.
O’Sullivan -v- Depuy International Ltd
[2016] IEHC 684
JUDGMENT of Mr. Justice Cross delivered on the 29th day of November, 2016
1. Introduction
1.1 The plaintiff was born on 26th February, 1964. She has three children born in 1992; 1999; and 2002. As an infant, the plaintiff recalls being under the care of an Orthopaedic Surgeon and being placed in traction on a Spica which is a cast covering the top part of her limb up to her tummy. This is because she suffered from a condition known as bilateral acetabular dysplasia which is a congenital deformity of her hips.
1.2 The plaintiff states and I accept that after her treatment she lived a normal life going to school which she left at sixteen. She worked in a gun shop in Waterford and then travelled around Europe working in London and Amsterdam where she was a “runner” for a hotel, which involved positioning herself in the Central Railway Station and inviting tourists to stay in the hotel she worked for and bringing them back to it. She then returned to Ireland and worked as a school secretary for a number of years and then worked in a public house in Waterford performing all the physical tasks associated with work in a public house apart from lifting beer barrels.
1.3 She was in a steady relationship until approximately 2004 and had three children as stated. The plaintiff agrees that when she was in Amsterdam, in particular, friends and acquaintances referred to as walking like “John Wayne” which I believe means that she had a somewhat rolling gait.
1.4 Up to about 2002, the plaintiff states that she did not have any difficulty with her hips but around that time developed increasing problems due to arthritis.
1.5 She was ultimately referred to Mr. O., a well known Orthopaedic Surgeon.
1.6 In September 2002, Mr. O. first saw the plaintiff, he found her hips had limited movement and he concluded in his letter to her GP that she required both her “knees” (sic) done. The plaintiff’s stiffness and incapacity continued and worsened and the left hip was not replaced until 19th October, 2005, the right hip was replaced in May 2006.
1.7 The plaintiff states and I accept that before the surgery she did not use a crutch and her recollection is that she was able to walk at her own pace, manage to go upstairs and everywhere though she agreed that she had “little rheumatisms” in winter time.
1.8 It is accepted that the plaintiff is a honest historian who in no way consciously exaggerated but it is also accepted by all sides that memories of patients tend to combine different events and are not to be trusted entirely especially as to timelines. I find that the plaintiff was more incapacitated prior to her replacement than she recalled.
1.9 Accordingly, I accept that the plaintiff was in need of her hip revision and was in pain and had stiffness and some disability by the time of her first operation in 2005, though I also accept that she managed to get about generally unaided.
2 The First Operation – Left Hip Replacement, October 2005
2.1 Mr. O. was not alone an Orthopaedic Surgeon, he was also on the design team of the defendant company in relation to their innovative Metal on Metal (MOM) hips. He advocated the use of DePuy hips and advised the plaintiff that it was a “once in a lifetime” job and that she would have hips like “Brian O’Driscoll” (this I understand, was, at the time, meant to be suggestive of great future mobility).
2.2 The MOM DePuy product known as ASR and ASR XL promised greater flexibility and greater durability. It contained chromium and cobalt and was characterised by two essential features, a shallower cup and a smaller clearance between the cup and the ball.
2.3 The plaintiff was some ten days in hospital after this procedure and returned home with a walking frame and felt that she had to drag her left leg after her. She then mobilised first with two crutches and after that with one.
2.4 After the first operation, the plaintiff had to sleep downstairs, as she could not readily climb her stairs. Her relationship with her partner had terminated some time in 2004, but after the operation, and up to this day, her partner provided great care and assistance for her working around the house and garden, assisted her in dressing and performing bodily function and doing heavy shopping and the like.
2.5 In the operation, the plaintiff’s left leg was lengthened by about 3 to 4cm and the operation itself was a difficult one.
2.6 It is correct that the inference could be drawn from the plaintiff’s evidence that the operation was of no assistance to her and that she was just the same after it as she was before. As stated above, it is agreed that she tended to combine different events and her recollection is to timelines may not be satisfactory.
2.7 However, the plaintiff specifically pointed out that her problems did not remain the same but gradually got worse stating that in 2007, she started to get grinding sensation “continuously in both legs” which her children heard especially when she moved and she was particularly sore, a pain which she differentiated from rheumatic or arthritic pain. I accept this evidence in conjunction with the evidence of her medical and doctors notes that she did get relief after the replacement and that her problems gradually got worse.
2.8 The plaintiff’s notes from Mr. O. point to an “excellent recovery” and her problems and difficulties, as stated by her, were not recorded to Mr. O. The plaintiff stated that her relationship with Mr. O. broke down and she did not find him an easy person to talk to. I believe that this breakdown of relationship with Mr. O. probably occurred after the second operation and not after the first. I accept that in the initial two years or so after the operation, the plaintiff did experience relief from her pain. She was, however, required to engage in stretching of her legs and muscle building in order to get a good clinical result and this, of course, was distressing. I also accept her evidence that her mobility did not return to what she had anticipated.
3 The Second Operation – Right Hip, May 2006
3.1 Mr. O. performed a replacement operation on her right hip on 17th May, 2006, and she was discharged after nine days. Complications are not mentioned in her medical notes and up to 2007, Mr. O’s records indicates that the plaintiff had returned to a lot of her pre-operation activities of swimming and walking etc. The plaintiff, however, stated, and I accept, that all of these activities were very limited.
3.2 Around 2007 or 2008, some surgeons including Mr. N. who gave evidence on behalf of the plaintiff began to have doubts and suspicions in relation to the efficacy of the defendant’s ASR and ASR XL hips and in 2009, the defendant’s withdrew their product from Australia and subsequently, there was a worldwide recall of the product.
3.3 The cause of the problem, it is alleged, is the presence of excessive metal ions by reason of the grinding of the prosthesis due, it is believed, to the shallow cup and small clearance between cup and bell. These ions get into the blood supply and then can cause significant damage to the patient including metallosis i.e. metal fibres from the implant and fluid builds up and damage is caused to the bones and possible soft tissue damage which is deemed to be Adverse Reaction to Metal Debris (ARMD) which is sometimes also referred to ALVAL.
3.4 It is alleged that the cause of the problems in relation to the defendant’s MOM hips was the peculiar and particular design of these hips but for reasons they would be later explained is not necessary to give any determination on that point.
3.5 In late 2007, the plaintiff attended Mr. O. and complained there was something significantly amiss in relation to her hips. The plaintiff had attempted to contact Mr. O. some period before she managed to get a consultation. He recorded that she was quite symptomatic and stiff and has “a lot of grinding of the left hip and flex to 30 to 40 degrees”. The plaintiff in her evidence referred to the grinding as being a noise which her children could hear, being particularly loud when she moved and it was particularly very sore. It was not similar to arthritis or a rheumatoid type of pain but was a pull on her legs and her lower leg felt as if she was wading in water and she was not moving properly. She was very fatigued and tired.
3.6 Mr. O. reassured the plaintiff and advised her that as far as her hips were concerned that the “God of Orthopaedics” had done the operation. I accept that the relationship between the plaintiff and Mr. O. was not good from this time on, she says that she was constantly ringing his clinic but could only secure an appointment when she got a letter in 2010, saying that the DePuy products had been recalled. In the meantime between 2007 and 2010, she was very seriously debilitated and was in pain and was unable to climb steps and her balance was affected.
3.7 The plaintiff attended Mr. O. in January 2011 and tests were carried out. Blood level revealed a cobalt of 131ug/L and chromium of 31.3ug/L and in April 2011, the cobalt was 140ug/L and chromium 31.3ug/L. These levels were described as “fantastically high” by Mr. N. Mr. N. stated that these levels of ion were higher than in any other case he had examined. The normal level for someone with a bilateral metal on metal hip should be between 2 and 3ug/L. The evidence, which I accept, is that not alone is this level “fantastically high” but that it is dangerous as to possible bone and other damage to the plaintiff. With iron levels this high, the risk of poisoning is also real.
4 The Third Operation – Revision of the left hip which had been replaced in October 2005
4.1 On 18th May, 2012, Mr. O. performed a revision surgery on her left hip. The DePuy hip inserted in 2005 was removed and a new hip was installed. Mr. O. filled in a revision hip form supplied by the defendants which read “ALVAL/soft tissue damage ++ with metallosis”.
4.2 Mr. N. on behalf of the plaintiff is of opinion that Mr. O. found a hip “which was full of fluid which was metallic looking with metallosis and that when he removed the head from the stem, there was obviously some changes which to him suggested a taper problem”. This is disputed by Mr. T.O., the Orthopaedic expert on behalf of the defendant.
4.3 The plaintiff indicates that as soon as she woke from the revision operation on her left hip, she experienced a significant severe pain in her knee which was so bad that she thought that her knee was broken. This incident is not recorded in the notes but the plaintiff was adamant that this significant pain which persisted is related to that incident.
4.4 Mr. N. on behalf of the plaintiff believes that the revision of her left hip resulted in damage to her sciatic nerve and that her symptoms are classic in relation to such damage. Such damage is a normal risk of revision. Mr. T.O. on behalf of the defendant disputes that her symptoms are consistent with sciatic nerve damage and adds that if she did suffer such damage, it was more likely in the initial hip replacement operation in October 2005.
4.5 The plaintiff has significant symptoms which are severely disabling in relation to her knee when both Mr. N. and Mr. T.O. believed that the present position with these symptoms is likely to be permanent.
5 The Fourth Operation – Revision of right hip which had been replaced in 2006
5.1 The right hip manufactured by the defendants and placed in 2006 was revised on 19th February, 2013. A small amount of clear fluid was found but this operation seems to have proceeded with better results than the left hip.
6 Issues
6.1 The plaintiff claims damages for negligence, breach of duty, breach of statutory duty and liability for defective product. A full defence was filed denying liability for injury, loss or damage, denying that any injuries were caused by reason of the bilateral implantation of the defendant’s device, denying any defects and pleading that there was no breach of s. 2 of the Liability for Defective Products Act 1991, in relation to the manufacture sale and supply of the product or that the products were defective under that Act.
6.2 By letter of 18th October, 2016, delivered by email on the morning this case was first listed for trial, the defendants wrote as follows:-
“Our client’s position is that they have no liability to your client in relation to the claims made by her in these proceedings. Nevertheless, in order to avoid the substantial costs likely to arise during a full trial of the action, our client hereby agrees to the trial proceeding on the basis that your client will not be required to establish that the DePuy product supplied to her were defective, leading to the necessity for early revision, which offer is made without admission of liability. The claims can therefore proceed as an assessment of compensatory damages only without any admission of liability.
In these circumstances, the only issue required to be dealt with by the court is the issue of the quantification of damages along with any issues of causation in relation to the quantification of damages. For the avoidance of doubt, our client contends that your client’s pre-existing medical condition was such that she would in any event have suffered increased difficulties following her surgery and any subsequent revision.”
6.3 Counsel for the defendant in making final submissions in this case stated that the issues in this case are “What is the extent of the plaintiff’s problems? Would those problems have been present in any event? If they wouldn’t have been present what proportion of them would have been present in any event? What special damages were caused by the 2005/2006 implants?”
6.4 It is important to note that it is no part of either side’s case to criticise the initial or subsequent surgery of Mr. O. Mr. O. is a experienced and highly reputable surgeon who was, as has been stated, not alone an early advocate of the DePuy MOM hips but was also on the design team. Mr. O. is not a party to these proceedings and was not called as a witness. The plaintiff had lost confidence in Mr. O. and did not call him as a witness. The defendants requested the plaintiff to make Mr. O. available to them for consultation and, as was their right they declined. The defendants, though they had the benefit of Mr. O’s notes, did not call Mr. O. to give evidence “sight unseen”. In the circumstances, I fully understand why neither party called Mr. O. to give evidence.
6.5 The defendant suggests that I should draw inferences hostile to the plaintiff from the failure of the plaintiff to call Mr. O. but I do not draw any such inferences other than to state, the obvious, that it is for the plaintiff to establish on the balance of probability ever matter that is required to be proved and if, having considered all the evidence, I cannot make up my mind on any point between conflicting evidence then I must conclude that on that point the plaintiff has failed to establish her case.
6.6 The defendant concedes that the plaintiff is entitled to damages in respect of the necessity for the early revision of both hips but the defendant’s dispute liability in respect of the plaintiff’s nerve damage which affects her knee or as to the general present state of the plaintiff. Indeed, it is fair to say that notwithstanding the letter of 18th October, 2016, virtually ever other matter in this case was in issue and indeed a hotly contested issue.
6.7 The plaintiff now has significant problems and disabilities. She is very disabled in what Mr. N. said (and Mr. T.O. did not disagree) was in an “awful” state.
6.8 She is in significant pain. She has significant limitations of movement. She walks with a very difficult gait. She requires crutches. She is unsteady on her feet. She cannot walk any distance. She cannot perform normal bodily functions such as washing or dressing. She is very limited in the amount of cooking or housework she can do and she is in severe pain. The position of the plaintiff is entirely different from and much worse than any other case, I have seen, involving allegedly defective hips and a need for hip replacements.
6.9 It is likely that this condition is going to be permanent but she will require further revisions.
6.10 The main issue in this case is Causation of what both sides agree to be, the plaintiff’s present “awful” state.
6.11 Briefly put, Mr. N. on behalf of the plaintiff is of opinion that 90 to 95% of her current and future problems are due to the defendant’s hip which through the raised iron levels caused a significant metallosis and osteollosis involving infection and loosening of the cup and an Adverse Reaction to Metal Debris (ARMD) (also known as ALVAL). Mr. N. believes that 5 to 10% of the plaintiff’s problems were caused by the dysplasia which pre-existed, the hip replacements.
6.12 On the other hand, Mr. T.O. on behalf of the defendant said that 90 to 95% of the plaintiff’s present and future condition and problems are related to her congenital dysplasia and that only 5 to 10% are related to the defendant’s hip.
6.13 That is the stark contrast between the expert evidence which will have to be resolved.
6.14 Notwithstanding the major dispute as to the cause of the plaintiff’s problems, Mr. T.O. and Mr. N. are in agreement that had there been no requirement for early revision of the hips as inserted in 2005 and 2006, that the plaintiff could have expected at least 20 years life for those hips to age 61 and 62, when in the normal course of events they would have reasonably had to been revised. Mr. N. subsequently has revised his view given the longevity of replacements hips that the plaintiff could have expected the first revisions to have lasted 25 years.
6.15 Mr. N. believes that Mr. O’s initial view that the hips would last the plaintiff’s lifetime was based upon a misplaced enthusiasm for the new product and that it would have been unreasonable to have expected such longevity in any event.
6.16 Mr. N. and Mr. T.O. are also of the view that had there not been a problem, the first revision should have lasted to age 61 for the left hip or 62 for the right hip (or 66 and 67 as Mr. N. later revised his opinion), would have to then be replaced by a second revision which would have lasted approximately fifteen years to 76 and 77 (or 81 and 82 if Mr. N’s more optimistic view on longevity is accepted).
6.17 In any event, there is no disagreement that were there no problem with the hips, the plaintiff would have had to have two revisions in each hip.
6.18 There is, however, difference between Mr. N. and Mr. T.O. as to what is the present position, given the failure of the hips and their revision in May 2011 and February 2013.
6.19 Mr. N. is of the view that the first revision of the left hip is already showing signs of loosening that it would only last a total of eight years and that in all the plaintiff will require a total of four revisions in her left hip (i.e. two more than she would have needed normally). Mr. T.O. is of opinion that the plaintiff would only require three revisions of her left hip (i.e. one more than she otherwise would have had).
6.20 In relation to the plaintiff’s right hip, Mr. N. is of the view that the plaintiff’s right hip, had all been well, would in the normal course of events require two revisions and that as things now stand, she will require three.
6.21 Mr. T.O. agrees that the plaintiff would, in the normal course of events, have required two revisions in her right hip and is of opinion that she will still only require two.
6.22 Mr. N. is also of the view that the level of ions present was indicative of the fact that, as a virtual certainty, there was bound to be damage to her bones and that this damage was confirmed on the revision of her left hip in May 2011, when a defect in the bones was disclosed in Mr. O’s note of the operation (though referred to as “small”) and the fact that it was covered by Allograft. The damage in Mr. N’s opinion is confirmed in the Histopathology report as requested by Mr. N. from the sample on the date of the revision which reported “the appearances are of metallosis with mild ALVAL” and it was found that there was “adverse reaction to metal debris, metallosis with mild ALVAL”. This histology report was confirmatory of Mr. N’s interpretation of the record of the revision operation signed by Mr. O. and presumably requested by DePuy which indicated the presence of ALVAL with metallosis.
6.23 Mr. N., as stated, is also of the opinion that in the operation in 2011, the plaintiff suffered an injury to sciatic nerve consistent with blunt injury to the nerve with interruption of nerve fibres.
6.24 The presence of such an injury was confirmed by Mr. B. McN., Consultant Clinical Neurophysiologist, though Dr. B. McN. Could not say as to when this injury occurred.
6.25 Mr. N. is of the opinion that x-rays of the plaintiff’s left hip already shows signs of loosening which is the main reason that he believes further revision is required at an early date.
6.26 Mr. N. is of the view that the plaintiff’s injuries and incapacities are likely to persist, that she is likely to get some relief from each of the replacements but that her physical incapacity is likely to be a permanent feature.
6.27 Mr. T.O. on behalf of the defendant, disputes the proposition that the plaintiff suffered an injury to her sciatic nerve in the revision of the left hip in 2011, or at all, and adds that if she did suffer any such injury, it is more likely to have occurred in the original hip replacement in 2005.
6.28 This distinction is not academic as it is not disputed that if there was an injury in the unnecessary replacement operation of 2011, that the defendants have a liability in respect thereof but if it was not caused in this operation but caused, for example, in the initial hip replacement in 2005 that the defendants would not have a liability.
6.29 Mr. T.O. further disputes, as stated above, the frequency of further operations.
6.30 Mr. T.O. also disputes that there is any loosening of the left hip to be seen or that there was any bone damage or evidence of ARMD.
6.31 All of these matters are, of course, relevant to the issue of damages, both general damages and special damages. The plaintiff has a claim for an extensive amount of special damages for future aids and appliances which clearly are not recoverable if the plaintiff’s case against the defendant as outlined above cannot be made out.
6.32 Essentially, however, the issue that I will have to determine is whether, as contended by Mr. N., that 90 – 95% of the plaintiff’s past, present and future problems are referable to the defendant’s hips as implanted and 5 – 10% related to the underlying dysplasia or the direct mirror opposite as contended for by Mr. T.O. that 90 – 95% of her problems are related to the dysplasia and 5 – 10% to the defendant’s hip. I have rarely seen two expert witnesses more dramatically opposed both in their general theories and also in almost each specific detail in the case.
7 Experts Witnesses
7.1 When a judge is faced with starkly conflicting expert evidence, each saying the opposite of the other, there may be a tendency to wish that a third or “neutral” expert could be engaged by the court to decide the issue in dispute.
7.2 Such considerations, of course, are fundamentally alien to our system of law which requires cases to be determined by judges and not by experts.
7.3 Such considerations also are alien to the role of experts which is to give expert and unbiased evidence of assistance to the court in determining the issues before it and to avoid slipping into the role of the advocate. In particular, the declarations of experts frequently require them to, inter alia, “draw to the attention of the court all matters of which the expert is aware which might adversely affect his opinion”.
7.4 A judge, who is a layman in relation to the expertise of the witnesses will have to come to a conclusion as to which evidence he can prefer based upon an overall and particular judgment of the expert and his or her evidence.
7.5 To abdicate a judge’s responsibility and suggest that a solution to this dilemma is to be gained from employing a “neutral” expert is, not alone to misjudge the role of the decision maker in litigation but also, I believe is to subscribe to a naive belief that there does exist a witness so knowledgeable and so removed from any subconscious pressures that there will be no element of subjective bias in their evidence.
7.6 The best method of arriving at as close approximation of the truth as is possible is, I have no doubt, from the examination and unfettered cross examination of witnesses and the formation of a judgment as to which witness is more reliable. Any a priori limitations on the number of experts or the length of their examination or cross examination is dangerous and could well result in severe injustice.
7.7 Mr. T.O. is an expert Orthopaedic Surgeon with his medical degree in the University of Cardiff in 1986, and post graduate qualifications of FRCS (London) 1990 and FRCS Orthopaedics March 1995 and USMLE September 1995. He has a practising consultant specialising in hip replacement surgery for some nineteen years and has experience in the field and has contributed a number of presentations to learned societies. I formed the view that Mr. T.O. gave his evidence honestly believing same to be true.
7.8 Mr. T.O. was of the opinion that the plaintiff who suffered from a congenital dysplasia, Grade 3 (the most serious dysplasia is Grade 4) could not have reasonably expected to have an excellent result from the surgery and the result that she actually obtained was within the region of what might be expected.
7.9 The views of Mr. T.O., of course, have the advantage in ascribing 90 – 95% of the plaintiff’s disabilities to her congenital dysplasia, of appearing the more instinctively plausible to a lay person. The plaintiff has a pre-operative condition. It is reasonable to assume that she could not have expected a complete recovery notwithstanding Mr. O’s enthusiastic views. Of course, a layman’s “gut” view of what is the more instinctively probable position is not any basis for my eventual decision which must evidentially based.
7.10 Mr. N. got his medical qualification in Newcastle Medical School in 1988 and his post graduate qualification as FRCS Orthopaedics in 2000 and has been a Consultant Orthopaedic Surgeon in North Tees General Hospital since 2002. Mr. N’s specialist interest is in hip and knee replacements and revision and resurfacing.
7.11 Mr. N. implanted over twelve hundred MOM hips and has revised over four hundred MOM hips from different centres around the UK and Ireland. He has been involved in the implanting and indeed the revision of hundreds of the defendant’s hips.
7.12 Mr. N. has published extensively in eminent Peer Review Papers and spoken at the most prestigious international and national meetings.
7.13 Of particular significance is that in 2004, the defendants marketed the MOM hip and at that time, Mr. N. was using a rival resurfacing artificial hip known as the “Birmingham hip” but was persuaded by defendant’s representatives that their product was far superior in relation to wear rates which they claimed was verified by testing. In particular, it was represented to him that the defendant’s hips were superior to the “Birmingham hip” and so impressed was Mr. N. that he became an advocate for the defendant’s hips. Accordingly, when DePuy wanted to go to an orthopaedic surgeon in the United Kingdom to advocate their MOM hips, they sought out Mr. N.
7.14 It is clear that in terms of expert experience, Mr. N. is better qualified in relation to hip replacements and revisions than Mr. T.O. Mr. N. has also contributed to more learned Peer Review articles in more prestigious papers and has spoken at and presented papers to more prestigious conferences than Mr. T.O. Mr. N. can, therefore, be regarded as having greater expertise than Mr. T.O. Of course, the fact that one expert is more qualified in his expertise than another is not necessarily determinative of a resolution of the issue in the case.
7.15 In or around 2008, Mr. N. in conjunction with a fellow surgeon, Mr. L. discovered what they claimed to be a failing in the defendant’s ASR and ASR XL hips which was initially believed to be a design fault and then a manufacturing problem was discovered as well in that the implants were allegedly not being made to specification.
7.16 The defendants initially advised the plaintiff that the problem was his and his alone as a surgeon and that the defects must have been caused by his poor surgical practice.
7.17 In any event, after publicity, Mr. N. was approached by American attorneys to get involved in what is known as Qui Tam litigation.
7.18 Qui Tam is, as I understand, a form of public interest litigation in which litigants expose what they believe to be fraudulent practices by companies which have manufactured defective products which have cost the State money and should the litigation be successful, the State is entitled to damages to represent the losses they have incurred in funding these defective products and the litigators, (including Mr. N.) are at the successful conclusion of this litigation entitled to a proportion of the damages recovered.
7.19 Qui Tam comes from the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur which means: “he who sues in this matter for the King as well as for himself”.
7.20 Mr. N’s Qui Tam litigation has been dismissed in the courts in the United States and is, at present, under appeal. Mr. N. says that the reason for the dismissal is that due to a restrictive disclosure orders in other cases, he was unable to advance names of individuals who had suffered from the defective hips and as a result of this inability the litigation was dismissed.
7.21 Be that as it may, as a result of this litigation, counsel on behalf of the defendants have sought to impugn Mr. N’s independence as an expert witness.
7.22 Counsel for the defendant relied upon the English case of EXP v. Barker [2015] EWHC 1289 (QB) and in that case, Parker J. sets out the importance that the expert witness does not have an interest in the case and Parker J. quoted, with approval, the extract from Phipson on Evidence in which the principles in relation to expert witnesses are set out:-
“(1) It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.
(2) The existence of such an interest, whether as an employee … or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.
(3) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
(4) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether an expert witness should be permitted to give evidence.
(5) The questions which have to be determined are whether:
(a) the person has relevant expertise; and
(b) he is aware of his primary duty to the Court if they give expert evidence, and are willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.
…
(7) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.
Even where the court decides to permit an expert to be called where his independence has been put in issue, the expert may still be cross-examined as to his independence and objectivity.”
7.23 Counsel on behalf of the plaintiff objected to the attack on Mr. N. without the defendant objecting prior to his evidence and seeking to exclude him from giving evidence but I find that the defendants are entitled to object to any witness or to submit at the conclusion or at any stage after cross examination that the evidence of that witness should be either ignored or given lesser weight.
7.24 If one examines the supposed “interest” of Mr. N., it is clear that it would indeed have been preferable had Mr. N. not got himself involved in the Qui Tam litigation in the United States from the point of view of the smooth running of proceedings in this jurisdiction.
7.25 However, it is also apparent that nothing that could happen in this case, or I suspect in any other litigation against these defendants in this State would be relevant to Mr. N’s undoubted financial interest in the Qui Tam litigation in the United States of America. The issue in this case is that of Causation and it is entirely independent on whether or not in the United States of America, the defendants have engaged in what is alleged to be mala fides to the detriment of the Federal Government or to any State or City Governments in United States.
7.26 Counsel on behalf of the defendant further attacks Mr. N’s credibility on the basis that he has allegedly stepped down from his position as an expert because of a “general hostility” to the defendants. In order to substantiate this, counsel has referred to the numerous cases in which Mr. N. has given evidence against the defendants in this jurisdiction and in the United Kingdom and to Mr. N’s opinion that the defendants have acted mala fides.
7.27 In view of the letter written on the first day of this trial, it will not be part of this decision to make any findings of mala fides or indeed negligence against these defendants. Whether or not DePuy are guilty of negligence or major malpractice is a matter to be determined in other proceedings. The fact that Mr. N. clearly believes in the cases that he has been making and indeed has given evidence in these courts to that effect prior to settlement of these cases, is not an argument of general mala fides towards the defendant rather it is Mr. N’s opinion which, if correct, demands the sort of evidence that Mr. N. has given in those other cases. It would be quite wrong if Mr. N’s opinion is reasonable for him in any way to water down his evidence to give a seemingly more nuanced view merely because he is going to be required to give such evidence in many other cases.
7.28 Accordingly, I reject any attack on Mr. N’s evidence on the basis that he is a biased witness or that any lesser weight should be put on his evidence given his history.
7.29 I believe that both experts gave their evidence honestly believing what they said to be true.
7.30 The issue remains, however, as to which of the expert’s evidence I should prefer.
8 Decision
8.1 For the reasons as set out below, I prefer the evidence of Mr. N. to that of Mr. T.O:-
(a) It is important to note that in a significant area of conflict between Mr. N. and Mr. T.O., Mr. N’s evidence was confirmed by the expert evidence of Dr. B. McN., Consultant Neurophysiologist, who confirmed Mr. N’s opinion that the plaintiff did indeed sustain an injury to the left posterior tibial division of her sciatic nerve.
(b) Secondly, Mr. N’s evidence as to the damage that the very high levels of ion could cause is confirmed by the histology report commissioned from the samples taken in the revision of May 2011 of her left hip.
(c) The third reason I prefer Mr. N’s evidence is also related to the level of blood ions. These ions were raised to a level that Mr. N. has never seen before and not alone beyond the stage of concern but they are significantly higher than a Peer Review Paper by Mr. N. had stated would result in ARMD in a hundred percent of cases. The existence of ARMD was confirmed in his operation note by Mr. O. and also was confirmed in histology. I am afraid that Mr. T.O’s reaction to the issue of ions was more in the line of a Advocate than an expert in that initially he did not really comment about the significance of the raised ion levels which are clearly set out in the hospital and medical notes and when presented with the histology findings as commissioned by Mr. N., Mr. T.O’s reaction was that though the samples were taken on 18th May, 2011, the same day as her left hip revision that this could have been a coincidence and the sample may not have come from her left hip at all. This response stretched credulity.
(d) Furthermore, when shown Mr. O’s operation notes which referred to metallosis and his report to DePuy on the procedure which refers to ALVAL as well Mr. T.O. tried to suggest that this document did not say what it clearly did. Mr. O. was confirming that on his revision of the left hip he found the signs of the damage which Mr. N. had predicted were bound to be there.
(e) Similarly in relation to the nerve damage which caused the plaintiff intense pain in her knee and which Mr. N. related to damage during the revision of the left hip, Mr. T.O. disputed that any such pathology of nerve damage was evident. When the fact of nerve damage was confirmed by the other expert Mr. McN., Mr. T.O. responded that if there was nerve damage, as a matter of probability it was caused in the original hip replacement rather than in its revision. In this regard, Mr. T.O. was again more acting as an Advocate saying “prove it” and pleading a “rolled up plea” in the alternative rather than as an expert. Mr. T.O’s reason to dispute that the damage was caused in the revision is that there was no note of any complaints at the time. While Mr. T.O. did point out the fact that the plaintiff was under more medication in the original replacement operation than in the revision, there were equally no notes of complaints on that occasion. I accept the evidence of the plaintiff that immediately on waking after the revision, she was aware of significant pain in her knee and I accept the evidence of Mr. N. and Mr. McN. that this pain is due to the nerve damage and I accept the evidence of Mr. N. that as a matter of probability this nerve damage was caused in the revision in May 2012.
(f) I note also that Mr. T.O. in his evidence dismissed the number of post DePuy revisions as due to “hysteria” and “mass panic”. This opinion is to ignore the professional opinion of numerous treating surgeons who have performed revisions operations on DePuy hips. I do not subscribe to the view that these operations were conducted for no purpose.
(g) Mr. T.O. disputed the existence of metallosis as found by Mr. N. in the photographs of the hip but, of course, the evidence for metallosis is not just in the photographs. It is reported by Mr. O., as stated above, when he filled in the defendant’s form under the heading “ALVAL/soft tissue reaction”, Mr. O. inserted also “++ and metallosis”. Mr. T.O. responded to this note and the fact that Mr. O. had to repair some damaged bony structure in the plaintiff with the response that the note undoubtedly referred to this damage as “small” but added that any damage was probably caused in the removal of the hip that had to be replaced. If that were the case, Mr. O. would surely have noted it. Mr. T.O. utterly ignores, disagrees with or denies the findings of Mr. O. post operation of ALVAL/soft tissue damage and metallosis. I have no doubt accordingly that Mr. T.O. is incorrect when he says that there was no evidence of ARMD.
(h) In contrast to Mr. T.O’s responses to various difficulties in his theories, Mr. N. was quite prepared to concede points that were against him. In particular, when questioned as to the plaintiff’s view that at no stage was there any improvement after any of the operations it was suggested to him that this is inconsistent with his theories, Mr. N. agreed but referred to his belief, which I have accepted that the plaintiff is mistaken in her recollection as to the timeline of various events.
(i) In relation to what I described as a “gut” instinct, it is also important to note that Mr. N. agrees that someone with Grade 3 dysplasia should not expect a perfect result (notwithstanding the optimism of Mr. O.). Mr. N. accepts that the plaintiff would have had to expect some lesser result than an equivalent person without dysplasia but as Mr. N. stated if the plaintiff’s outcome was related to dysplasia “we could never operate on dysplastic hips”. There must have been a reason for the original replacements. Indeed as agreed by Mr. N. and Mr. T.O. that notwithstanding her current predicament the plaintiff will require a number of further replacements and clearly there is a medical reason for these further replacements to ease the plaintiff’s disabilities. Accordingly, my original “gut” instincts prove not to be robust. As stated by Mr. N. if the plaintiff’s problems are due to her dysplasia then no dysplastic patient would be given a replacement. Her dysplasia meant that the plaintiff had to have her initial replacement at a younger age than normal due to her arthritis than would be a case in a person without dysplasia but her result and condition cannot be due to the condition that the new hips were designed to alleviate.
8.2 Accordingly, where there is any conflict between the evidence of Mr. N. and Mr. T.O. notwithstanding the view that I accept Mr. T.O’s subjective belief in his evidence, I prefer the evidence of Mr. N. who has acted at all stage, in my view, as a fair and impartial expert.
9 Effects
9.1 The plaintiff accordingly, is indeed by agreement between the parties in a very unfortunate position. I find that 90% of her past, present and future problems are, as is the opinion of Mr. N. referable to the defendant’s hips.
9.2 I find that the plaintiff has suffered an extraordinary build up of her blood ions which have stabilised since the replacements but have caused damage to her system. Bone damage has occurred and she is suffering from what is known as ARMD.
9.3 I find that the plaintiff will require replacements of her hips as Mr. N. has recounted i.e. she will require total of three extra unnecessary hip replacements throughout her life.
9.4 I find that extra replacements carry with them increased risks of infection which is greater each time. A risk of dislocation which worsens with each revision and the bone is vulnerable in relation to surgery. There is a possible risk of what is known as Girdlestone injury as well as the ordinary risks of operations and anaesthesia.
9.5 I find that these revisions will be necessary as the replaced hips were and would give her some extra mobility but that the plaintiff is likely to continue to be severely disabled, unable to carry out normal domestic chores, unable to carry out normal bodily functions without assistance, unable to walk or engage in any employment and that this is going to last her the rest of her life.
9.6 The plaintiff will also be in significant pain probably for life, relieved somewhat from time to time after her revisions.
9.7 I accept Mr. N’s evidence that the plaintiff’s x-rays demonstrate there is already loosening in her left hip which will therefore require early revision.
9.8 I do not accept the contention on behalf of the defendants that the next revision will cure the plaintiff or that Mr. N’s evidence was to that effect. Mr. N. agreed that the revision will be of benefit to the plaintiff in relation to the loosening he found on x-rays and to instability but I accept the submission of counsel for the plaintiff having read Mr. N’s evidence that the more revisions which are necessary, the greater damage would be to the bone and the greater damage to soft tissue and shorter period of relief.
9.9 It follows from the above, that the plaintiff is entitled to damages in respect of her need for future aids and appliances which need will not be solved by any further revision surgery. The plaintiff will, on the contrary, have increasing needs in terms of her disability.
9.10 The appropriate course is, I believe, to assess the plaintiff’s damages in full and then to reduce the total by 10% to take into account my finding on dysplasia.
10 Special Damages
10.1 The legal principle best summarises the nature of special damages to be awarded to a plaintiff in respect of care and aids and appliances was outlined by Irvine J. in Lennon v. HSE [2014] IEHC 336, when she stated:-
“…the plaintiff ought to have access to sufficient funds to enable her purchase the care required to live as normal a life as is reasonably possible… while the plaintiff should be given a sufficient award to maximise her capabilities… that award must be one which is fair to the defendant in the specific circumstances of this case.”
10.2 In my decision in Russell v. HSE [2014] IEHC 590, I approved the statements of Gillen J. in K.D. (A Minor) v. Belfast Social Health and Care Trust [2013] NIQB 78:-
“What has to be first considered by the court is not whether other treatment is reasonable but whether, given the needs of the plaintiff, the treatment chosen and claimed for by the plaintiff is reasonable.”
10.3 Being fair and reasonable is not to take “average” of totals given by experts on behalf of plaintiffs and defendants, to do that is to adopt a paternalistic approach criticised by Pill L.J. in Sowden v. Lodge [2005] 1 WLR 2129 at 2144. Rather, I must examine the claim as advanced by the plaintiff in deciding whether that claim is fair and reasonable. In this case, my task is made easier by the fact that the defendants, for understandable reasons, chose not to call any witnesses on this point.
10.4 The main contention of the defendant was that the sums claimed for special damages for the plaintiff should not be allowed given their view of the plaintiff’s case. As I have not accepted the defendant’s view of the plaintiff’s case, I find that it is reasonable for the plaintiff to make the claims set out below with certain exceptions.
10.5 Counsel on behalf of the defendant submitted that notwithstanding the decision of this Court and of the Court of Appeal in the case of Russell (A Minor) v. HSE [2015] IECA 236, that I should determine the real rate of return at 3%. The basis of the defendant’s application was that this plaintiff is not in the same catastrophic position as the plaintiff in the Russell case and, therefore, can be less risk adverse than Russell.
10.6 In my decision in Russell, I stated, obiter, that a plaintiff with a claim for future pecuniary confined to loss of earnings might possibly be treated as less risk adverse than a plaintiff who has a claim for cost of future care.
10.7 The Court of Appeal in their decision did not accept my view and whereas counsel for the defendant indicated that that view of the Court of Appeal was, of itself, obiter. I accept the reasoning of Irvine J. in the Court of Appeal when she stated:-
“There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category….”
10.8 Counsel for the defendant stated that I should not draw from this any suggestion that plaintiffs who are less catastrophically injured than Russell would be entitled to the same real rate of return in respect of claims for future care, aids and appliances.
10.9 I believe that such submission is erroneous. The real rate of return, therefore, should be calculated at 1%.
10.10 While the plaintiff in this case is not making any claim for loss of earnings and all her future claims are for care and aids and appliances, any sum that is found due to the plaintiff is found due because the plaintiff has a right to and a need for that sum as a matter of virtual certainty in order to provide for her the lifestyle for which she is entitled.
10.11 While Ms. O’Sullivan may not die if the level of care that she is entitled to should “run out” due to it not being invested with sufficient caution, should that money run out, she will be deprived for a period of her life without the necessary care or aids and appliances that she is entitled as a matter of law.
10.12 Accordingly, I accept the logic of the decision in the Court of Appeal which by inference I believe covers not just loss of earnings into the future for all but exceptional cases but also for aids and appliances and future care. I regret any lack of rigour that may have resulted from my obiter remarks in the High Court in the Gill Russell case.
10.13 I have been assisted with actuary’s reports and in accordance with law I use the actuary’s figures as a guide.
10.14 The claim for special damages to date consists of a claim for €500 for medical expenses which I think is more properly costs rather than damages and a sum of €516 for travel expenses which I accept together with the sum of €50,540.11 for retrospective care costs in accordance with the report of O’Carroll Kinsella. This, in essence, relates to the extensive care given to the plaintiff to date by her former partner and is reasonable.
10.15 In relation to future, consultants recommend future professional care in support around the time of later replacements in the sum of €5,745.39 and the plaintiffs have claimed on the basis of the total number of future revisions necessary rather than the extra revisions necessitated by the default in the original hips. The plaintiff’s actuary estimates the cost of the care for these five revisions at over €22,000. I believe that the plaintiff should be entitled to recover for the five revisions as though there are only three extra ones required, had it not been for the condition of the plaintiff’s hip, she would have been entitled to her ongoing revisions free of charge.
10.16 Also, the plaintiff’s expert has recommended additional support from age 66 to 76 at €6,174.15 per annum and increasing from 76 to €12,188.29.
10.17 The total of these costs has been actuarialised at €155,361 and I propose to allow the sum of €150,000.
10.18 Furthermore, the plaintiff is entitled to the future cost of the extra revisions themselves which have been calculated at the sum of €41,415. In relation to the home care and aids and appliances. The total of the plaintiff’s claims amount to between €319,000 and €320,000 on a 1% basis.
10.19 I believe that the sums set out by Ms. Barnes are generally reasonable and they have not been disputed by any appropriate expert. I do, however, think that the total sum of €46,662 for drugs payment may not arise and in any event I do not find that the plaintiff has proved on the balance of probabilities that it will arise. I note that a sum of €82,532 is claimed for a paid home help including holidays and PRSI. I believe that the plaintiff is likely to continue the present informal arrangement with her former partner who is entitled to be paid for his services but at a reduced rate of say €60,000.
10.20 In addition, the plaintiff has claimed a sum of €72,495, being the cost of an automatic car but I think that the true loss is the difference between an automatic and a manual which is €4,000 per annum and accordingly which has been included in the plaintiffs actuary’s figures. The only other item I would disallow is the sum of €14,418 for heavy or gardening tasks.
10.21 I think being fair to the parties approximately €80,000 can be removed from the totals for future aids and appliances and home care leaving a total of €240,000 which I would allow.
Summary of Special Damages
Past care and travel expenses €51,040.11
Future revision and care costs €191,415
Future home care/aids and appliances €240,000
Total €482,455.11
11 General Damages
11.1 It is clear that as had been stated in numerous decisions, minor injuries call for minor damages, moderate injuries for moderate damages and severe injuries call for significant damages.
11.2 Whereas the plaintiff’s injuries are clearly not catastrophic they are undoubtedly severe and within the categorisations of the Book of Quantum, they would have to be categorised as “severe and permanent conditions”. The injury has caused major disruption to the plaintiff’s life in a number of areas and has resulted in serious continuing pain and ongoing permanent medical attention.
11.3 Counsel for the defendant has referred me to the Book of Quantum and in particular to p. 57 of the new Book of Quantum, which deals with injuries and dislocations to hips and gives a range between just short of €60,000 and €94,5000 for severe and permanent conditions which:-
“Will require manipulation of a joint back into normal position may have included more intensive treatment or even surgery to keep the joint in position. These may include ongoing pain and some loss of movement and the joint being more susceptible to future dislocation on the onset of arthritic changes.”
11.4 Counsel did concede that the injuries described in the Book of Quantum at p. 57 may not be entirely similar to what the plaintiff has suffered but suggested that I should use this as a guide.
11.5 As I indicated in discussions with counsel, I do have a certain difficulty with the new Book of Quantum in that on its face, the information going into its make up comes not just from court awards or PIAB determinations but also to a significant extent from insurance company files. The difficulty is that those files will, as a matter of virtual certainty, include cases which are compromised due to possible liability factors. If an insurance company has put a value of say €50,000 on a settlement and the files indicates that that case was settled on a 50/50 basis, the insurance company may value the full claim at €100,000. The plaintiff, however, might value the claim at a far greater sum but are concerned that they had a very small chance of success. The reverse is also, of course, possible.
11.6 It is not clear what the portion of the Book of Quantum’s figures are in relation to insurance company files but on the face of it, a significant cause to doubt the accuracy of the recent book does present itself.
11.7 Happily, I do not have to concern myself in this case with such considerations as I do not find that the sums quoted in the Book of Quantum for “dislocations” of hips are in any way referable to the pain and suffering that the plaintiff has gone through and will go through as a result of what occurred.
11.8 The plaintiff has not suffered a “dislocation” of her hips rather the hips that were inserted in 2005 and 2006, have resulted in significant damage to the plaintiff, not just to her hips and have had significant life altering results.
11.9 I must in my determination be fair to the plaintiff as well as to the defendant. I think that to be fair and reasonable to both sides bearing in mind the very severe, if not catastrophic nature of her injuries, and reiterating that the plaintiff’s injuries are far more severe than any other person whose case has been opened to me in relation to these defendant’s hips, I will assess general damages to date in the sum of €200,000 and general damages in the future to €100,000.
12 Aggravated Damages
12.1 The last matter to be considered in this case is a claim for aggravated damages. Counsel for the plaintiff has claimed aggravated damages on the basis that the defendant’s criticism of Mr. N. was wholly unfair and that there ought to be consequences.
12.2 Counsel for the plaintiff relied upon the third category suggested by Finlay C.J in Conway v. INTO [1991] 2 I.R. 305, namely the conduct of the wrongdoer in the defence of the claim at the trial and in particular, they submit that the attack on Mr. N’s character was, in effect, an “assassination”.
12.3 As was established in Phillip v. Ryan [2004] 4 I.R. 429, aggravated damages are compensatory damages.
12.4 Counsel for the defendant referred the court to the decision of the Supreme Court in Swaine v. Commissioner for Public Works [2003] I.R. 521.
12.5 I previously indicated that the issue of aggravated damages may have a roll in cases which the conduct of the defendants is such as (for example, the swearing of an affidavit verifying a defence when there is no real defence to the matter, or the making of any basis or reckless allegations against the plaintiff or a witness) in circumstances in which there is no real other deterrent to a defendant. An award of aggravated damages against a defendant who acts in bad faith, may well be the only deterrent to balance the draconian statutory penalties against a plaintiff who acts in bad faith.
12.6 In this case, however, the complaint is as to the attempted “assassination” of Mr. N.
12.7 Mr. N. is not a party to this litigation and undoubtedly it would benefit the defendant in this and other cases if his credibility could be assailed. I do not, however, think it necessarily unreasonable or reckless for the defendants to assail the credibility of Mr. N. and to have the issue, in particular, of his Qui Tam litigation adjudicated upon.
12.8 Accordingly, I do not have to come to a determination as to the role, if any, of aggravated damages in such cases because I do not believe that the conduct of the defendant in criticising Mr. N. comes within the third categorisation of Finlay C.J. in Conway.
13 Conclusion
13.1 Accordingly the plaintiff is entitled to succeed. Damages are as follows:-
Special Damages to date and into the future €482,455.11
General Damages to date €200,000
General Damages into the future €100,000
Total €782,455.11
Less 10% €78,245.51
Net Total €704,209.60
13.2 As I am obliged to do, I must consider whether the total sum of general and special damages is fair and reasonable and to compensate the plaintiff and I do so decide and accordingly, the plaintiff is entitled to decree in that sum.
Shannon -v- O’ Sullivan
[2016] IECA 93
Irvine J.
Peart J.
Hogan J.
JUDGMENT of Ms. Justice Irvine delivered on the 18th day of March 2016
1. This judgment is delivered in respect of the defendant’s appeal against two awards of damages made by the High Court (Donnelly J.) on 25th March 2015 at the Kilkenny High Court.
2. The learned High Court judge awarded Mrs. Rita Shannon a total award of damages of €131,463 comprising €50,000 in respect of pain and suffering to date, €80,000 in respect of pain and suffering into the future and agreed special damages of €1,463. She awarded Mr. Anthony Shannon a total sum of €91,463, made up as to €35,000 in respect of pain and suffering to date, €55,000 in respect of pain and suffering into the future and an agreed sum of €1,463 in respect of special damages.
3. The defendant maintains that each of the aforementioned awards were excessive to the point that they should be set aside.
Background
4. Mrs. Shannon was born in July 1960, is a married lady and a mother of two children. Mr. Shannon, was born in May 1957 and is a factory worker.
5. On 7th November 2012 Mr. and Mrs. Shannon were involved in a road traffic accident at Anglesea Road, Clonmel. Mrs. Shannon was travelling as a front seat passenger in her husband’s vehicle when the defendant’s car emerged from a road on her left and struck the passenger door with such force that the airbag was deployed.
6. In the High Court, the defendant mounted an extremely robust challenge to the validity and extent of the injuries sustained by both plaintiffs. They did so in reliance on the following assertions:
(i) That the plaintiffs had not proceeded directly to hospital, as they had initially claimed, but had gone there several hours after the collision.
(ii) That while Mr. O’Sullivan maintained he was examined in the hospital, no records existed concerning such examination.
(iii) That the plaintiffs had both sought medical attention for the first time on 1st December 2012, several weeks post-collision.
(iv) That the plaintiffs did not attend their long-established General Practitioner, but attended a retired General Practitioner, Dr. Sean McCarthy, who had been recommended to them by Mrs. Shannon’s brother.
(v) That the plaintiffs had no further medical review until they were seen by Dr. McCarthy for the second time in February 2014, at which stage they were both sent for an MRI examination and referred to a consultant psychiatrist.
(vi) That both plaintiffs had been referred to Prof. Michael Molloy, Consultant Rheumatologist, in May 2014 and were then both referred for EMG studies.
(vii) That both plaintiffs were later diagnosed with psychological injuries.
7. All of the aforementioned matters, and indeed several other issues of credibility, were canvassed with the plaintiffs and their doctors, i.e., Dr. Sean McCarthy and Prof. Molloy, Consultant Rheumatologist. In addition, the court had the benefit of hearing the evidence of the defendant’s own orthopaedic surgeon, Mr. Michael O’Riordan.
Trial Judge’s Assessment
8. Having considered all of the evidence, the trial judge delivered a lengthy and considered judgment in the course of which she dealt with the issues of credibility, causation and the extent of the plaintiffs’ injuries.
9. As to credibility, the High Court judge found the plaintiffs to be honest and extremely hard working people. Neither had missed a day’s work as a result of their injuries. She drew no adverse inferences from the facts that had been established by the defendants relating to the credibility issues to which I have already referred. The fact they had not attended a doctor for 14 months after their initial attendance she considered to be evidence of stoicism on their part, and the fact that they had made no claims in respect of loss of earnings she considered was evidence of honesty.
10. As to the cause of the stretching/bruising-type injury to a nerve in Mrs Shannon’s neck, the High Court judge accepted Prof. Molloy’s evidence that this injury, which was evidenced in EMG studies, was likely caused by the road traffic accident. She concluded that this injury had become chronic, would continue to affect the plaintiff into the future, and that there was some possibility she might require surgery. The trial judge also accepted Prof. Molloy’s evidence that the collision had rendered symptomatic Mrs. Shannon’s pre-existing but previously asymptomatic degenerative changes in her neck. In this regard she had received two injections from Dr. McCarthy.
11. As to the future, the trial judge concluded that as a result of the aforementioned injuries the plaintiffs’ pain had become chronic and would continue into the future. Further, she accepted Prof. Molloy’s evidence that there was some possibility of surgery in the future.
12. As to psychological/psychiatric injury, the trial judge did not accept that Mrs. Shannon’s symptoms had been as severe as she had maintained when she was seen by Dr. Neville, consultant psychiatrist. Had they been severe she would likely have mentioned them to her own General Practitioner, Dr. Walsh, whom she had attended with depression four months prior to her accident and later again in July 2012 in respect of another personal matter. Accordingly, the High Court judge rejected the diagnosis made by Dr. Neville that Mrs. Shannon had suffered Post Traumatic Stress Disorder. That said, she accepted that she had experienced flashbacks and nightmares and had had difficulty sleeping post accident. While these symptoms had abated, she continued to suffer symptoms of ongoing depression which required anti depressant medication. The plaintiff’s prognosis was guarded and her recovery from a psychological perspective depended upon the resolution of her physical symptoms.
13. As to Mr. Shannon’s physical injures, the trial judge accepted that he had also sustained a stretching-type injury to a nerve in his neck. She also concluded that, prior to the accident, he had asymptomatic degenerative changes in his neck which had been rendered symptomatic by the collision. As a result of these injuries, he had symptoms of stiffness and he also experienced tingling in his fingers following physical activity. The latter had eased off. He had received two injections from Dr. McCarthy but no other treatment was advised. At the date of the trial Mr. Shannon was taking over the counter painkillers, but only on an irregular basis.
14. As to the future pain and suffering likely to be experienced by Mr. Shannon arising from his physical injuries, the trial judge concluded that his symptoms had become chronic and were likely to continue into the foreseeable future.
15. As to Mr. Shannon’s psychological injuries, the trial judge accepted that he been shocked and frightened by the collision and that he had made such a complaint to Dr. McCarthy on his first attendance. He had not required any medical attention in respect of his stated anxiety until such time as he was referred to Dr. Morrison, consultant psychiatrist, by Dr. McCarthy in February 2014. The trial judge accepted Dr. Neville’s diagnosis that in the aftermath of the collision Mr. Shannon had developed Post Traumatic Stress Disorder. However, she concluded that his symptoms had been “mild” and less severe than those experienced by his wife. He had required no treatment i.e. no physiotherapy or cognitive behavioural therapy. She was satisfied that after his symptoms of Post Traumatic Stress Disorder had abated that he continued to have an adjustment reaction with mixed emotions of anxiety and mild depression but in respect of which he was not making any major complaints of continuing ill effects.
16. In conclusion, the trial judge found that Mr. Shannon, who was 57 years of age at the time, had developed a significant and permanent condition as a result of the road traffic accident and that in respect of which he would continue to be symptomatic into the future.
Submissions
17. Mr Finbar Fox S.C. on the defendant’s behalf makes a relatively straightforward submission in relation to both cases. He states that the sum awarded by the trial judge was excessive in each case both in respect of pain and suffering to date and pain and suffering into the future.
18. Insofar as Mrs. Shannon’s case was concerned, Mr. Fox drew the courts attention to the fact that as of the date of trial only two years and four months had elapsed since the date of the accident. During the first 15 months of that period, Mrs. Shannon had required practically no medical intervention or treatment. Between February 2014 and the date of trial, while there had been a greater medical presence in her life she had received practically no treatment of any type. Further, the evidence was that psychiatric symptoms had been at their worst in the first year. She had missed no time from her work and gave no evidence that her enjoyment of any other activities had been adversely affected. That being so the award of general damages to date of €50,000 was excessive.
19. Insofar as the award of €80,000 in respect of pain and suffering into the future was concerned, Mr. Fox relied upon the fact that it was not expected that the plaintiff would require any medical treatment. It was not suggested that her work or leisure activities would be impaired in any way. Beyond evidence that the plaintiff had good days and bad days in terms of pain in her neck or tingling in her forearm, and that there was a possibility of future surgery in respect of the stretched nerve in her neck, there was nothing in her medical condition or prognosis to support an award of that magnitude.
20. As for Mr. Shannon, breaking the claim down in the same fashion, Mr. Fox submitted that he too had required practically no medical or intervention over the 15-month period immediately following upon the collision. He had received no treatment of any type. He continued to work and made no complaint that his leisure activities had been interfered with. Between February 2014 and the date of trial, as in his wife’s case, there had been a greater medical presence but little by way of treatment. There was nothing he could not do and nothing had been taken from him in terms of his enjoyment of life. In such circumstances, the award of €35,000 in respect of pain and suffering to date was excessive.
21. As to the award of €50,000 in respect of pain and suffering into the future, Mr. Fox submitted that there was no evidence from any medical practitioner, or indeed the plaintiff himself, such as would justify an award of that nature. There was no suggestion he would require any treatment or medication into the future. Further, he would not be restricted in any of his activities.
22. Mr. Fox submitted that the severity of the injuries sustained by both plaintiffs had to be measured by reference to the extent to which their injuries had affected their enjoyment of life or had deprived them of their ability to participate in activities which they would otherwise have enjoyed. Measured in this way, the awards were disproportionate to the injuries sustained and disproportionate to awards commonly made in more serious cases.
23. Mr. Aidan Doyle S.C. on the plaintiffs’ behalf submitted that the awards that had been made by the learned High Court judge fell within the parameters that were appropriate having regard to the findings of fact which she had made.
24. As to Mrs. Shannon’s injuries, counsel submitted that there was objective evidence of disc encroachment on a nerve causing ongoing pain and that her symptoms had become chronic to the point that it was probable she would be symptomatic indefinitely. She had sustained nerve damage for which she had required two injections into her neck and she remained at risk of surgery in this regard. Her pre-existing degenerative changes in her neck had also become symptomatic. In addition, Mrs. Shannon had sustained a psychiatric injury and in the initial aftermath of the collision had experienced symptoms of flashbacks, nightmares and sleep disturbance. While she was significantly improved as of the date of trial, she nonetheless continued to experience symptoms of depression in respect of which she was still taking medication and in circumstances where her prognosis was guarded.
25. Mr. Doyle submitted that Mrs. Shannon’s injuries should not be equated with the straightforward whiplash-type injury often seen in the courtroom setting. The fact that she had not received significant treatment nor required time off from her job, should not be relied upon as evidence that her injuries were not severe, particularly given that the trial judge had taken the view that these factors were indicative of stoicism on her part.
26. Mr. Doyle submitted that an assessment of damages should not be carried out by reference to some imaginary scale of quantum, where, at the bottom of such scale, minor injuries were to be found which attracted very small damages and at the top, catastrophic injuries in respect of which general damages of in or around the €450,000 figure was the appropriate compensation. He submitted that awards at the highest end of the scale were, in reality, capped by reason of the fact that those plaintiffs were recovering substantial sums of money in respect of special damages. Thus, it would be unfair to assess the plaintiff’s entitlement to damages by reference to where, on such a scale the plaintiffs injuries were to be located.
The Principles to be Applied
27. It is accepted by the parties that, as per the judgment of McCarthy J. in Hay V. O’Grady [1992] 1 I.R. 210, as this Court did not see and hear the witnesses give their evidence, it is bound by the findings of fact made by the learned High Court judge insofar as the same are supported by credible evidence. In this case, there is no suggestion that the findings of the trial judge were not so supported.
28. In these circumstances, this court may only overturn the awards of damages made if it is satisfied that no reasonable proportion exists between the sums awarded and that which the appellate court itself considers appropriate in respect of the plaintiffs’ injuries.
29. The task of a judge sitting in an appellate court when asked to interfere with an award of damages made in the High Court was described in the following manner by Lavery J. in Foley .v. Thermal Cement Products Ltd (1954) 90 I.L.T.R. 92 :-
“To make his own estimate of the damages he would award and then compare this estimate with the verdict and say whether there is any reasonable proportion between the sums or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable. In making his estimate the judge must adopt all points most favourable to the plaintiff and must keep in mind that the jury had the advantage, which he has not had, of hearing the evidence and of seeing the witnesses and in particular hearing and seeing the plaintiff.
No one will deny that this is a most difficult task. It is especially difficult in a case were personal injuries are the subject of the claim. There is no standard by which pain and suffering, facial disfigurement or indeed any continuing disability can be measured in terms of money. All that can be said is that the estimate must be reasonable and different minds will inevitably arrive at wildly differing conclusions as to what is reasonable. The task must, however, be undertaken.”
30. The same issue was considered by Fennelly J. in Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578, where he described the role of the appellate court in the following manner:
“The more or less unvarying test has been whether there is any “reasonable proportion” between the actual award of damages and what the Court, sitting on appeal, ‘would be inclined to give’ (per Palles C.B. in McGrath v Bourne). Lavery J, in Foley v Thermocement Ltd slightly inverted the language by posing the question ‘whether there is a reasonable proportion between the sum (awarded and the appeal court’s assessment) or whether the verdict is an entirely erroneous estimate of the damage or is plainly unreasonable’. The test is one for application as a general principle, even if McCarthy J, in Reddy v Bates (page 151) suggested a possible rule of thumb, the need for at least a 25% discrepancy. That is no more than a highly pragmatic embodiment of his very proper counsel against ‘relatively petty paring from or adding to awards’. In this respect, it seems to me that this Court is no longer bound by the special respect due to a jury verdict. On the other hand, it is not a court of first instance. It should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be an appropriate one, regardless, it needs scarcely be said, and of whether the complaint is one of excessive generosity or undue parsimony. It should, of course, be recalled that this test relates only to the award of general damages, as explained by McCarthy J. in a further passage from the same judgment.”
31. It is clear from the aforementioned authorities that an appellate court should not interfere with the award of a trial judge if it is only for the purpose of making some moderate adjustment. This is because the appellate court has not heard or seen the witnesses give their evidence and must accordingly be cautious about second guessing the trial judge’s assessment as to what constitutes appropriate damages in any given case. It should only intervene where it is satisfied that the award made was not proportionate to the injuries sustained and where it considers the award made constitutes an erroneous estimate of the damages properly payable.
The Quantification of Damages
32. It has long been accepted that awards of damages must be:-
(i) fair to the plaintiff and the defendant,
(ii) proportionate to social conditions, bearing in mind the common good
and
(iii) proportionate within the scheme of awards made for other personal injuries (see MacMenamin J. in Kearney v. McQuillan & North Eastern Health Board [2012] IESC 43 and Denham J. in M.N. v. S.M. [2005] IESC 17).
33. However, even where awards are made in accordance with these principles, the goal of damages, which is to put the plaintiff back in the position that he or she was in before they sustained their injuries, is, in most cases, unattainable. This is particularly so in the case of serious injury.
34. As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
35. Insofar as Mr. Doyle has submitted that the plaintiffs claim should not be measured on a scale of damages which starts at zero and ends at €450,000, on the basis that €450,000 is not in fact the top of the scale because damages are capped at that level for those who suffer catastrophic injury and receive very significant awards by way of special damage, I reject that proposition.
36. It can be stated with relative confidence that cases involving extreme or catastrophic injury coming before the courts in recent years have resulted in awards of in or around €450,000 in terms of general damages. That is not to say that €450,000 is a maximum or that there have not been cases where that sum has been occasionally exceeded. However, the figure of €450,000 is generally accepted by senior practitioners and judges alike as the appropriate level of compensation for pain and suffering in cases of that nature: indeed the High Court, in the exercise of its wardship jurisdiction regularly approves settlement for injures of this type at that level. I do not accept that in practice the sums so awarded have been reduced by reason of the fact that plaintiffs who fall into this category inevitably recover very significant sums in respect of special damage.
37. It cannot, in my view, be correct that a plaintiff can have their general damages reduced on the basis that they are to be awarded a very large sum in respect of their claim for special damage to cover matters such as loss of earnings, future care, aids and appliances, assistive technology etc. That cannot be correct in principle; an injured person is entitled to be compensated in full for all losses flowing from the injuries he sustains. Special damages represent the calculation of actual losses, past and future, which leaves the matter of general damages to be assessed entirely separately.
38. It has to be accepted that there have been some dicta which support the principle which Mr Doyle maintains applies, a principle which I would reject as unjust and perhaps even irrational. Further the leading authority often cited in support of this proposition would not appear to justify that approach.
39. The plaintiff in Sinnott v. Quinnsworth [1984] I.L.R.M. 523, had to be compensated for injuries that rendered him a quadriplegic and which O’Higgins C.J. described as:-
“.. probably the most serious condition that a person can suffer as a result of personal injuries.”
The Chief Justice said that in assessing a sum to compensate the plaintiff for his injuries “the objective must be to determine a figure which is fair and reasonable”. He also cited a relevant consideration, namely that the court should have regard to the fact that all of the plaintiff’s losses and expenses would be provided for in the capital sum in his damages. Therefore:-
“What is to be provided for him in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation.”
40. The Chief Justice was careful in expressing this principle to ensure that there should be a proper distinction drawn between the sum to be provided for losses, costs and expenses, past and future, which it was the purposes of special damages to cover in full and the award of compensation over and above those elements. That decision does not appear to be authority for the proposition that an injured plaintiff is to have his damages reduced because he has received due recompense for his out of pocket expenses and future needs.
41. Accordingly, coming back to the facts of the present case, I remain of the view that it is reasonable to view the plaintiff’s injuries in the context of the entire spectrum of personal injury claims where, at the outer end, a plaintiff might expect to recover damages somewhere in the region of €450,000. I accept that there may be individual cases in which, having regard to their own specific facts, a judge might rightly decide to exceed that sum.
42. As to where on the spectrum of awards Mr. and Mrs. Shannon’s injuries should be located depends upon extent to which, as a result of the defendant’s wrongdoing, they have suffered and will continue to experience, inter alia, pain, suffering and loss of enjoyment of life. While it is important to understand the nature of their injuries and the relevant medical diagnoses, far more important is the evidence concerning the extent to which those injuries have already and may in the future adversely affect their lives. The value of an injury cannot be determined by the label attached to it. For example, for a judge to state that they were satisfied that a plaintiff suffered from let us say an adjustment disorder or a stretching injury to a nerve would of course be helpful and relevant to the court’s understanding of their condition. However, such a finding needs to be followed up with the trial judge’s assessment as to the consequences for the plaintiff of such an injury. An appellate court needs to know the trial judge’s assessment as to the severity of the symptoms generated by the condition, the treatment undertaken or to be undertaken in respect thereof and the extent to which the symptoms and/or treatment have or will interfere with the plaintiff’s enjoyment of life and for what period.
43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the plain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.
45. It is not possible to catalogue all of the elements to be considered and potentially addressed by a trial judge in a personal injuries case. However, a judge must act rationally and take into account, in summary, the severity of the injury, how long it has taken the plaintiff to recover, whether it has short-term or long-term consequences and if so the impact on the plaintiff’s life in all its different aspects including his family, his work his sports or hobbies or pastimes, in addition to any other features that are relevant in the plaintiff’s particular circumstances.
Decision
46. I find myself in the unenviable position of having to take issue with the conclusions of the learned High Court judge who clearly gave great care and consideration to each of these claims before delivering a lengthy and thoughtful judgment. I fear that she became caught up in the difficult task of deciding the credibility issues raised for her consideration, with the result that she did not provide a sufficient analysis of her reasons for making such large awards in favour of these plaintiffs.
47. Undoubtedly, the trial judge considered the plaintiffs’ injuries to be “significant”, because this is what she said in her judgment, and she then proceeded to assess damages, in the case of both plaintiffs, on that basis. However, her reasons for reaching such a conclusion are not obvious. While the trial judge described in medical terms the nature of the physical and psychological injuries sustained by the plaintiffs and went on to identify how these injuries were borne out by EMG and MRI studies, her analysis of the effect of such injuries on the plaintiffs is not sufficiently detailed to support awards of the magnitude which she made. It is vital that judges in personal injuries cases set out their conclusions as to the consequences for the plaintiff of the injuries sustained in terms of pain, suffering and loss of enjoyment of life, both past and future. Without that reasoning an appeal court is somewhat left in the dark as to the rationale behind the award.
48. The trial judge concluded that both plaintiffs had suffered an injury to a nerve in their neck, causing cervical radiculopathy. She also concluded that it was possible that Mrs. Shannon might require surgery in respect of this injury at some future date. She was also satisfied that both plaintiffs had suffered soft tissue injuries to their neck and shoulders and that in relation to the former, that asymptomatic pre-existing degenerative changes had been rendered symptomatic by the collision. She concluded that these injuries had and would have a significant effect on their lives.
49. In this case, it is difficult to see much evidence of pain, suffering, treatment or limitation on life style such as would support an award of general damages to Mrs. Shannon in the sum of €50,000 and in the case of Mr. Shannon of €35,000 in respect of the two-year and four-month period between the date of the accident and the date of trial. I will deal with the conclusions of the trial judge in respect of the plaintiffs’ physical injuries before turning to her findings in respect of their psychological injuries.
50. The trial judge accepted that they were both assessed in hospital on the evening of the accident. However, they were not detained and did not require any medical intervention or treatment. Whatever symptoms they may have had did not preclude them from going to work the next day and living what appeared appears to have been a relatively normal life until such time as they both went to Dr. McCarthy on 1st December 2012. On that date, both plaintiffs were prescribed painkilling medication, i.e., Tylex for one month.
51. It is undoubtedly the case that the trial judge found that the plaintiffs were both suffering from pain in the neck and shoulder at this stage. However, it is to be noted that Dr. McCarthy did not consider their injuries sufficiently serious to refer them for further expert advice or investigation. Neither did he consider their complaints sufficiently serious to advise them that they should come back for review after any stated period. It is common case that neither of them returned to seek any further advice, treatment or medication until February 2014, some 13 months later.
52. The trial judge clearly addressed the implications of the plaintiffs’ lack of engagement with the medical process over that period and concluded that this was because they were stoical, and that may well be so. However, the fact that they did not return seeking further medication, treatment or advice has to be somewhat indicative of the level of pain and suffering that they were experiencing.
53. Because the court usually has only the plaintiff’s evidence as to the extent of their pain, is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment. In that regard, it is common case that most people who sustain injury and have consequential pain seek medical intervention and, if necessary, treatment. The needs of the injured party are usually at their greatest in the days, weeks and months following injury when engagement with the medical and allied professions is likely be at its most intense. Further, it is usually during these periods that plaintiffs who suffer minor or modest injuries are most affected in terms of their ability to work and/or participate in sports, hobbies or pastimes. It must be inferred from the fact that the plaintiffs were both in a position to continue to work, were able to participate in their normal day-to-day activities and did not feel the need to attend a doctor between December 2012 and February 2014 that their symptoms over this period were relatively modest.
54. As to the period between February 2014 and the date of trial, it is true to say that Mr. and Mrs. Shannon were referred for MRI and EMG studies and were also referred for specialist review by Dr. Morrison and Prof. Molloy. While these referrals led to a number of diagnoses being made, such as a stretching or bruising of a nerve and Post-Traumatic Stress Disorder, the lives of the plaintiffs continued on, much the same as they had done over the earlier 13-month period, the only difference being that they each received two injections from Dr. McCarty in respect of their respective nerve injury. Both continued with their work, neither of the missing a day. Neither did they have to abstain from any of their normal activities. Mr. Shannon stated that there was nothing that he could not do. He was able to garden, put out the bins and go to work. His only complaint was that he had some difficulty casting, while out fishing. Mrs. Shannon confirmed that she was able to mind her grandchildren and go to the gym.
55. Of some further assistance in terms of determining the extent of the impact of the injuries sustained on the plaintiffs’ lives must be the fact that at no time did either of them, as an individual, attend a medical practitioner to seek help, treatment or medication in respect of their symptoms. On each occasion they attended Dr. McCarthy, which was only three times in total, they went together. On the only occasion they attended Prof. Molloy, they went together. Likewise, they attended together with Dr. Morrison and later with Dr. Neville, she having been retained due to Dr. Morrison’s unavailability. So while the plaintiff’s may have been symptomatic, neither of them ever had any acute episode or a period of individual pain which required them to seek advice, treatment or medication.
56. Insofar as the plaintiffs’ psychological injuries are concerned, I have detailed these earlier at para 12 and 15 of this judgment, so I will not repeat them here. Suffice to state that I find it difficult, from the judgment of the trial judge, to assess the extent to which she likely relied upon the plaintiffs’ psychological injuries when she came to assess the amount of damages to be awarded in respect of pain and suffering to date. While she made findings of fact concerning the psychiatric injuries sustained by both plaintiffs and charted their recovery, she did not state her conclusions as to the severity and frequency of their symptoms such as flash backs and nightmares, nor her conclusions as to the extent to which and over what period these affected the plaintiffs in their enjoyment of everyday life.
57. What is clear, however, is that regardless of the existence of symptoms such as those last mentioned, the severity of the plaintiffs’ symptoms was not such that they felt it necessary to seek any professional assistance. It was only following their attendance upon Prof Molloy in 2014 that they were ultimately referred for psychological review.
58. Insofar as pain and suffering into the future is concerned, while the trial judge clearly took the view, in Mrs. Shannon’s case, that she would continue to suffer some tingling in her arm and pain and discomfort in her neck because her condition had become chronic, regrettably, she does not detail the symptoms or limitation on lifestyle that explain an award of the magnitude of €80,000. She did not, for example, identify what she believed Mrs. Shannon would likely experience in terms of pain arising from the chronicity of her symptoms, and without such analysis an appellate court is in a position of some difficulty when asked to review a trial judge’s award of general damages. It needs to know the trial judge’s conclusions as to the likely frequency, severity and duration of any adverse sequelae. Obviously, a plaintiff who is expected to suffer modest pain which can be relieved by over-the-counter medication for a couple of hours a week will attract an entirely different award of damages to the plaintiff who is expected to experience lifelong pain on of the type that cannot be controlled by medication. Further, an appellate court needs to know the conclusions of the trial judge as to the likely effect that any anticipated pain will have on a plaintiff’s lifestyle, hobbies and work.
59. However, this fact notwithstanding, I think it can reasonably be inferred from:-
(i) her lack of any apparent need for prescribed medication, other than Tylex for a month post accident,
(ii) the fact that her only medical treatment consisted of two injections given by Dr McCarthy in 2014,
and
(iii) the fact that she required no rehabilitative intervention of any sort and (iv) that she had not been disrupted in her working, leisure or sporting activities, that Mrs Shannon was unlikely to experience anything significant in terms of pain or discomfort or limitation in lifetime activities post the date of trial.
60. Insofar, as a trial judge may conclude, as occurred in the present case, that a plaintiff remains at risk of surgery, an appellate court needs to know whether the judge considered that risk to be minimal or substantial. It also needs to know what such surgery would entail in terms of pain and suffering, the relevant recuperation period and the likely prognosis. If the risk of a surgical procedure is 50% as opposed to 5% this will obviously sound in damages. Likewise, the extent of any such surgical intervention and the plaintiff’s likely prognosis are all material to the damages to which the plaintiff is entitled.
61. In this case, however, all we know from the judgment of the trial judge is that she factored into her consideration, when awarding damages for pain and suffering into the future, the fact that the plaintiff remained at risk of surgery in respect of the bruising injury to the nerve in her arm. The extent of that risk is not mentioned nor any detail given as to what the surgery, if it were required, would involve. The fact that she did not do so, to my mind, was because none of these issues were canvassed in any detail with Prof. Molloy, who was the witness who had advised as to the possibility of such surgery. Absent that detail, I am not satisfied that there was sufficient evidence to entitle the trial judge to make an award which included compensation for the possibility that she might require future surgery.
62. A similar problem arises in respect of the trial judge’s conclusion that the plaintiff had developed a depressive illness which required antidepressant medication and in respect of which the prognosis was guarded. The trial judge did not identify the extent to which she expected such condition to impact upon the plaintiff’s life nor whether her symptoms were fully or partially controlled by medication. What is clear, however, is that up to the date of trial, there was little evidence to suggest that the plaintiff’s psychological symptoms had not adversely affected her from a vocational or social perspective. Thus, it might reasonably be inferred, notwithstanding the absence of any specific guidance from the trial judge, that Mrs. Shannon was unlikely to suffer much by way of psychological problems deriving from her road traffic accident into the future.
63. When it came to her assessment of Mr. Shannon’s injuries, the trial judge concluded that his injuries were less severe than those sustained by his wife but that he was likely to remain symptomatic indefinitely because of the accident. Unfortunately, however, she does not state her conclusions as to the frequency or severity his pain or emotional upset and she appears to have placed little reliance upon the fact that he was not limited in his work or leisure activities as a result of his injuries.
64. It is true to say, as already advised, that the trial judge concluded that the reason why Mr Shannon did not stay out of work was because he was stoical, and this court must accept that finding. However, it must be inferred from the fact that he was in a position to remain at work and never missed a single day that his pain, whatever its frequency, was manageable to the point that his life remained much as it was prior to the collision. His sole expressed limitation was casting a line when fishing and with the exception of two injections administered by Dr McCarty, he received no treatment of any nature.
65. Insofar as the trial judge’s award for damages for pain and suffering into the future is concerned, she clearly based her award on her conclusion that the degenerative changes in Mr Shannon’s neck would likely continue. However, as in the case of Mrs Shannon, the she did not identify the nature and extent of any pain, suffering lifestyle limitation that he would likely experience as a result. I have already expressed my view that a trial judge must support any such award by reference to their conclusions on such matters. Without that detail it is difficult for an appellate court to assess whether an award of general damages was reasonable, just and proportionate having regard to the injuries . These difficulties notwithstanding, in my view, the was nothing in the evidence to suggest that Mr Shannon would experience much by way of pain or discomfort into the future. His symptoms prior to trial had not impacted on his ability to fully engage with all aspects of daily living, and there was no evidence to suggest that his condition would deteriorate.
Conclusion
66. Regardless of the deference which an appellate court must afford to the judgment of the trial judge, for the reasons already stated I am satisfied that the awards of general damages in favour of these plaintiffs were not just and fair or proportionate to the injuries they received. Neither were they proportionate to those commonly made in personal injury claims involving greater or lesser injury.
67. I’m quite satisfied that had the trial judge assessed the significance of the plaintiffs’ injuries by reference to the severity of other injuries which fall within the entire spectrum of personal injuries claims and the awards commonly made in respect of thereof and, had she had regard to factors such as those earlier identified at paragraph 42 of this judgement, she would likely have made a significantly lesser award in each case.
68. As to where on the spectrum of awards the injuries and sequelae of Mr and Mrs Shannon, ought to be located, I am quite satisfied that their claims must fall towards the bottom end of the scale which has minor injuries at one extremity and catastrophic injury at the other. In this context their injuries must be viewed as modest indeed. I accept, of course, the trial judge’s finding that Mrs Shannon’s injuries were slightly more severe than those of her husband. However, in order for their awards to be fair and proportionate, they too must be modest. That being so, in Mr Shannon’s case I would set aside the award of the trial judge in respect of general damages and would propose in its place an award of €25,000 in respect of pain and suffering to date and a sum of €15,000 in respect of pain and suffering into the future. In Mrs Shannon’s case I would likewise set aside the award of the trial judge in respect of general damages and propose an award of €40,000 be made in respect of pain and suffering to date and €25,000 in respect of pain and suffering into the future.
Cronin -v- Stevenson & anor
[2016] IECA 186 (22 June 2016)
URL: http://www.bailii.org/ie/cases/IECA/2016/CA186.html
Cite as: [2016] IECA 186
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Judgment
Title:
Cronin -v- Stevenson & anor
Neutral Citation:
[2016] IECA 186
Court of Appeal Record Number:
2015 238
Date of Delivery:
22/06/2016
Court:
Court of Appeal
Composition of Court:
Ryan P., Hogan J., Edwards J.
Judgment by:
Edwards J.
Status:
Approved
Result:
Allow and set aside
THE COURT OF APPEAL
Ryan P.
Hogan J.
Edwards J.
Court of Appeal
Record No: 238 / 2015
High Court
Record No: 4728P/11
BETWEEN/
GRACE CRONIN
Plaintiff/Respondent
-AND-
EMMA STEVENSON AND DARREN RUSSELL
Defendants/Appellants
Judgment of Mr Justice John Edwards delivered on the 22nd day of June 2016
Introduction:
1. In this judgment the plaintiff/respondent will hereinafter be referred to simply as “the plaintiff”, and the defendants/appellants will be referred to simply as “the defendants”.
2. This is the defendants’ appeal against the judgment and order of the High Court (Cross J) made in a personal injuries action on the 17th of April 2015.
3. The plaintiff was awarded a total sum for damages of €200,000 plus the costs of the proceedings, which said costs were to be taxed in default of agreement. The said sum of €200,000 was comprised of €100,000 for pain and suffering to date, €80,000 for pain and suffering into the future, and an agreed sum of €20,000 for special damages.
4. A stay of execution on the High Court’s order was granted pending any appeal, conditional upon the payment to the plaintiff by the defendants of a sum of €150,000.
The background to the case
5. The plaintiff’s claim arose out of a road traffic accident that occurred on the 5th of December 2007. On the early morning of that date, the plaintiff was returning home from a holiday in Dubai. Having landed at Dublin Airport some time around 5.00am, the plaintiff engaged a taxi to take her from the airport to her parents’ home at Templeogue. The plaintiff sat into the rear of the taxi, which was owned and driven by the second named defendant, and fastened her seatbelt. The taxi then proceeded on its journey. When, in the course of that journey, the taxi was in the vicinity of the junction of Harold’s Cross Road and Shamrock Villas, Harold’s Cross, another vehicle, which was owned and driven by the first named defendant, came across the road and collided head on with the taxi in which the plaintiff was travelling.
6. The plaintiff suffered personal injuries, loss and damage in the accident, and in due course issued these proceedings against both defendants. Liability was conceded on behalf of the defendants and the case proceeded as an assessment of damages.
The medical reports
7. Before considering the judgment of the High Court, it may be helpful to review the medical evidence placed before that court. At the trial the medical reports on both sides were submitted on an agreed basis, and no doctors or other medical experts were called to give oral evidence.
8. On the plaintiff’s side, three reports were handed in from Dr Ahmad Ajina, her General Practitioner; three reports from Mr Joe Sparks, Consultant Orthopaedic Surgeon; eight reports from Dr Frank Chambers, Consultant in Pain Medicine; a report from Mr Derek Hamilton, Musculoskeletal Physiotherapist and two reports from Prof Susan McKiernan, Consultant Gastroenterologist.
9. On the defendant’s side, two reports were handed in from Dr John Simon, General Practitioner, four reports from Mr Robert McQuillan, Consultant in Emergency Medicine, and a report from Mr Frank McManus, Consultant Orthopaedic Surgeon.
Dr Ajina’s Reports
10. The first report of Dr Ajina dated the 30th of April 2011 covers the period from the date of the accident to the date of the report, during which period the plaintiff attended him on eleven occasions. He stated (inter alia):
“[I]n summary Ms. Cronin has sustained very severe soft tissue injuries to her cervical, left shoulder and lower back including lumbosacral and coccyx areas. Ms. Cronin has no pre-existing spinal trouble before.
It is approximately three and a half years since the accident and so far there was no significant improvement.
This has imposed a severe restrictions on Ms. Cronin’s daily life activities, house work and sleep pattern. It is possible that her acute attack of shingles is linked to the repeated steroids injections which could be avoided if there was no injuries. In addition to this Ms. Cronin’s level of stress, anxiety and frustration were very obvious to during these numerous GP visits.
Ms. Cronin’s final prognosis is very unpredictable and since it is more than three years I don’t expect full recovery without some residual permanent disability.”
11. Dr Ajina’s second report, dated 17th of March 2013, covers the period from the 20th of April 2011 to the date of the report, during which the plaintiff attended him on a further four occasions. He reported (inter alia):
“So in summary Ms Cronin has sustained severe soft tissue injury to her cervical spine areas and it has been five years since the accident with no recovery. This chronic pain has affected her daily activities, work, personal and social entertainment and unfortunately have not responded well to medications, physiotherapy treatments and multiple trigger points injections.
Her prognosis remains poor and I am not expecting her to have full recovery. Ms Cronin is still going to attend the pain specialist for intermittent treatment. Ms Cronin is still taking simple analgesia in a daily basis and this might continue for few years to come. This residual disability and pain is unlikely to get worse but I would expect frequent relapses of pain and reduce full range of movements.”
12. Dr Ajina’s third report, dated 31st of December, 2014, covers the period from the 17th of March 2013 to the date of the report, and was based on a review of the plaintiff’s condition on the 27th of September 2014. He reported on this occasion:
“As a result of this accident Ms. Cronin has suffered from severe soft tissue injury involving her cervical spine area and coccyx area. In addition Ms. Cronin has sustained minor disc bulging at C4-5 level. This disc bulge extends posteriorly but no compression on either thecal sac or nerve exist. Her coccyx pain has almost resolved but her cervical pain is still severe seven years later despite all of the above treatment. Ms. Cronin has no previous injury to either her cervical or coccyx area.
Ms. Cronin has poor prognosis in so far that she has in my professional opinion, severe irreversible cervical pain which is not responding to all the above treatment. This has left her to suffer during sleep, work and housework activities. I don’t anticipate any future treatment that will be of value and hence she is left with permanent morbidity. She will be in need for regular simple analgesia and intermittent physiotherapy treatment.”
Mr Sparkes’ Reports
13. Mr Sparks first saw the plaintiff on the 7th of February 2011 on which occasion she was complaining of constant neck pain, coccygeal pain that had reduced in the last three months, frequent numbness in the right ring finger and intermittent shoulder and back pain. She had had a recent MRI scan and nerve conduction studies both of which were normal. Clinical examination revealed significant reduction of spinal movements, with all movements accompanied by trapezius pain which was on palpation more tender in the left than in the right. He concluded:
“There are no hard radiological or clinical findings to explain why Ms. Cronin continues to have right ring finger pain. In the circumstances the constant neck pain and intermittent shoulder and back pain would have to be attributed to soft tissue injuries as the isotope bone scan shows no evidence of any subtle bony abnormality.
On clinical examination there was no focal deficit and I would therefore be of the opinion that no surgical intervention would be required but that Ms. Cronin may require further pain management assistance …
Given that it is over three years since the date of her accident and these symptoms are persistent and troubling it is becoming increasingly likely that Ms. Cronin will have long-term issues with pain although it is impossible to quantify the duration of symptoms exactly.”
14. Mr Sparkes provided a follow up report dated the 24th of September 2014. On this occasion the plaintiff had reported significant improvement in relation to her coccyageal pain, but no improvement in relation to any of her other complaints. On clinical examination of her cervical spine the plaintiff was noted to have significant restriction of movements, all of which were limited by pain in the right posterior cervical region. Further, there was tenderness to minimal palpation throughout the trapezius and posterior cervical region. Mr Sparkes commented:
“The pain and tenderness demonstrated at clinical examination was in my opinion disproportionate to the objective findings especially with regard to the extreme pain response to minimal palpation of the soft tissues. Given that Ms. Cronin is now almost seven years since the date of her accident and continues with a pain specialist it would appear that at this stage she has developed a chronic pain syndrome but this would be better evaluated and described by the treating pain specialist.”
15. In a further short report dated 5th of November 2014 Mr Sparkes commented upon the results of a recently conducted MRI scan of the plaintiff’s cervical spine, stating:
“In my view there are two issues on the MRI scan, one is description of degenerative change present at C.4/5. The second is loss of normal cervical lordosis. In my opinion the description of degenerative changes on MRI scan represents normal physiological wear in the cervical spine that one would see in a thirty-seven year old female. With respect to loss of normal cervical lordosis, this is frequently interpreted as indicating muscle spasm or tightness. This soft tissue tightness or spasm may be the cause of tenderness in the right posterior cervical region however as I stated in my report the pain response to minimal palpation was disproportionate. There are no other obvious structural abnormalities reported on MRI scan that would indicate any obvious source of extreme or disabling neck pain.”
Dr Chambers’ Reports
16. Although there were eight reports in all from Dr Chambers a number of these were short and merely comprised letters to the plaintiff’s G.P and/or her solicitors, confirming recent reviews of her condition and the nature of on-going treatment, or responding to queries raised by the said solicitors. It is only necessary for the purposes of this judgment to review the more detailed full medico-legal reports provided by Dr Chambers, of which there were two.
17. The first full medical report provided by Dr Chambers was dated the 18th of March 2011. It stated that the plaintiff had been referred by her G.P., Dr Ajina, and presented for assessment for the first time on the 18th of June 2009, when she was complaining of pain in her neck and shoulders, which was more marked on the left. She also had pain in her right middle finger. She was found on clinical examination to have tenderness and spasm of her trapezius bilaterally, and Dr Chambers performed bilateral trapezius and suprascapular nerve blocks.
18. These were repeated six months later in October 2009. In February 2010, when she was next assessed, she had developed left sided herpetic neuralgia in the L 1 distribution. She was assessed again in June 2010 and in January 2011. When the plaintiff was seen by Dr Chambers on the 20th of January 2011 he noted:
“She has pain in her neck radiating into both shoulders. She stated that her left shoulder is predominantly affected. She stated that her symptoms are more intermittent in nature and increased by any physical or repetitive activity and she finds that driving or sitting for long periods of time further exacerbates her symptoms as does heavy physical or repetitive activity. She states that her symptoms are relieved to a degree by rest and analgesic medication.
She stated that she still suffers from pain over her coccyx while sitting on a hard surface. As stated previously she used to run regularly and finds this difficult to do at the moment. She suffers from intermittent mood disturbance though denies being clinically depressed.”
19. Clinical examination on that occasion revealed that the plaintiff had a good range of movement but there was tenderness over her trapezius muscle bilaterally. There was no focal neurological deficit. She also had slight tenderness over her coccyx.
20. Dr Chambers concluded:
“Ms Grace Cronin was involved in a road traffic accident on the 5th of December 2007 as a result of which she developed chronic neck, shoulder and coccygeal pain.
Prior to the accident she had no past history of similar symptoms. I can only therefore conclude that the temporal onset of her symptoms relate exclusively to the accident.
With regards to her neck and shoulder pain her symptoms and signs are consistent with trapezius myofascial pain syndrome with associated suprascapular neuralgia.
Overall she has obtained some degree of relief from trapezius and suprascapular nerve block though she continues to be symptomatic.
With regard to the long term prognosis approximately 80% of such injuries resolve within two years of the accident and therefore due to the chronicity of her symptoms I would have to be guarded with regard to the longterm prognosis though I would feel that there is room for further improvement.
With regards to her low back pain she has pain and tenderness over the coccyx which is consistent with Coccydynia for which she has not had any invasive treatment to date. Provided she avoids sitting on hard surfaces for long periods of time or direct contact she should remain relatively symptom free in this regard.
With regards to future treatment I have advised her to continue with simple analgesic medications and should her symptoms exacerbate she may require a repeat injection in the future.”
21. In a further detailed medical report dated the 29th of October 2013, Dr Chambers records that he had seen the plaintiff on a further six occasions, since January 2011. On this occasion he opined:
“With regards to her coccygeal pain this is largely subsided and I would not anticipate any significant problems in the future. With regards to her head and neck pain she still has residual tenderness particularly over her trapezius muscles bilaterally and as I stated previously approximately 80% of such injuries resolve within two years of the accident, however in this instance it is now approaching 6 years since the accident and I would therefore be of the opinion that her condition has plateaued and would anticipate little change in the future. With regards to future therapies over the last 12 months she recently had injections in July 2013, having previously had her last injections in December 2012. I would advise her to avoid any heavy physical or repetitive activity as this is likely to further exacerbate her symptoms and she may need repeat injections for intermittent exacerbations the frequency of which are difficult to predict on an individual basis.”
22. In follow up correspondence he was asked by the plaintiff’s solicitors to furnish, if he could, answers to the following queries:
“(a) For how long do you think it is likely that my client will continue to require steroid injections?
(b) How many times a year do you think she will require these injections?
(c) Can you please outline the overall cost of these injections …?
23. Dr Chambers responded in subsequent correspondence dated November 2014 that:
“…I think it is reasonable to assume that for the foreseeable future she may need such treatments once to twice a year. The current professional fees are in the region of €180.00 excluding hospital costs which would be in the region of €325.00 thus the total combined cost including the hospital cost and professional cost would be estimated in the region of €500.00.”
And that:
“With regard to ongoing symptoms, approximately 80% of people who have had a chronic episode, have recurrent episodes as stated previously and it is difficult to predict on an individual basis. However it would be reasonable to assume that she may require one to two such treatments on an ongoing basis, for the next five to ten years. Specifically with regard to the longer term time frame, as a consultant in clinical practice for the last twenty years, I have very few patients that have attended for such treatment in a time span in excess of ten years.”
The physiotherapist’s report
24. In a detailed report dated 24th of January 2011, the plaintiff’s physiotherapist stated (inter alia):
“She does respond to physiotherapy treatment but often it is worse in the days after the treatment before it starts to improve. Her symptoms are very easily provoked, so treatment has to be very gentle and graded.
The source of her symptoms appears to be both muscular and neurological. Abnormal muscle tension around the pelvis and shoulder blades will rotate them and abnormally load the attached musculature and ligaments. Postures which place the spine in end of range positions such as sitting in a car will provoke these already irritated structures. Treatment techniques that release the abnormal muscle tension, give Ms Cronin some symptomatic relief. However this can be a relatively slow process especially if there are high levels of irritability in the tissue and poor individual postural habits.
It is worth noting that although symptoms have stabilised they still follow a pattern of increased pain awareness with increased activity. She also reports increased stress because of this and the implications for her job. Stress and coping poorly with it have been demonstrated to negatively affect the outcome of whiplash sufferers.
The fact that she does respond to treatment is encouraging but the irritability and severity of her symptoms is worrying. Treatment is designed to reduce symptoms and to also re-educate abnormal muscle activity in the affected areas. This takes time and commitment on behalf of the patient. However this is not always possible when there is involvement of the nervous system and Ms Cronin has considerable neurological symptoms, ie paraesthesia, burning, muscle guarding, dizziness etc.
I would therefore, recommend that in order to maximise her recovery potential, she should continue with treatment until the resolution of her symptoms. Pharmacological treatment is vital to reduce symptoms in order to promote normal movement and recovery but this has been hampered by other health issues.
Based on the severity of her symptoms at this stage I think that it is unlikely that Ms Cronin will ever get full resolution of her symptoms, however I do feel that they will continue to improve over time. By adapting her activities, keeping active and managing her symptoms with physiotherapy and good pharmacological management she should improve the quality of her life.”
Prof McKiernan’s reports
25. Prof Susan McKiernan performed a endoscopy on the plaintiff in March 2009 in circumstances where she was complaining of peptic ulcer like pain, and intolerance of even moderate amounts of alcohol and certain foods. The plaintiff was diagnosed as having a chemical gastitis due to certain non-steroidal medications she was taking for pain relief, specifically Difene and Keral. She was prescribed PPI (proton pump inhibitor) tablets and advised to avoid alcohol and triggering foods.
26. Prof McKiernan carried out a follow up endoscopy in November 2014 which disclosed no active inflammation and minimal chronic inflammation. In her report dated 19th January 2015, she stated:
“In summary Grace is suffering from non-ulcer dyspepsia which is likely to have been triggered by her road traffic accident and the heavy use of analgesics seven years ago. She has ongoing symptoms on a day to day basis with defined periods of exacerbation for when she takes her anti-inflammatories. There are also various social factors which exacerbate the situation. It is likely that she will suffer indefinitely from this condition but it may be ameliorated by the use of Amitriptyline, cognitive behavioural therapy and regularisation of her meals.”
Dr Simon’s reports
27. Dr Simon carried out medico-legal assessments of the plaintiff on behalf of the defendants on the 12th of April 2010, and again on the 7th of September 2010. In his reports based on those assessments he concluded that the injuries complained of were consistent with the accident history, that clinical examinations had revealed no gross significant findings, that a full recovery was expected and that the anticipated timeframe for the achievement of full recovery was six to twelve months from assessment.
Dr McQuillan’s reports
28. Dr McQuillan also carried out medico-legal assessments of the plaintiff on behalf of the defendants on the 23rd of February 2008, the 22nd of November 2011, the 23rd of April 2013 and again on the 14th of October 2014.
29. In his first report, he records:
“Following a road traffic accident this lady sustained soft tissue injuries to her low back and coccyx area and soft tissue injuries to her neck and upper back.
She has quite diffuse symptoms at this stage and awaits a bone scan in Tallaght Hospital and an MRI scan of her cervical spine and lumbar spine-
It is almost certain that these scans will not show anything of significance.
She should be encouraged to continue with her mobilization. Judging by her level of symptoms to date and her jaw tenderness and clicking I suspect that her symptom profile will be quite protracted and it will probably be some twelve to fiteen months from the time of the accident before her symptoms subside.
I would not anticipate long term complications.”
30. Following his next review of the plaintiff’s condition in November 2011, he reported:
Very much as suspected at the time of my examination at 2½ months this lady has gone on to complain on a very protracted basis. The complaints however have been even more protracted than I would have expected.
Her investigations do not show anything of significance and her clinical examination would not suggest any significant pathology.
She has developed a pain syndrome that is persisting symptoms of pain which are not well explained on a physical basis. She is however showing gradual improvement in that her neck pain is quite rare and intermittent and her coccygeal pain is well settled.She is likely to continue to complain on a fairly protracted basis. No serious injury has been sustained and there will be no long term complications.”
31. Following a third review of the plaintiff’s condition in April 2013, Dr McQuillan reported:
This lady sustained soft tissue neck and shoulder injuries in an accident at work five years ago.
I first saw her at 2½ months when I felt the response was inappropriate and that she was likely to complain on a protracted basis.
She has complained on a protracted basis, much more protracted than I had anticipated.
To the best of my knowledge her investigations to date have been normal, particularly her bone scan has been normal indicating that there is no acute injury to the joints or the bones or detached ligaments.
She has been treated in the Pain Clinic because of pain syndrome that is persisting symptoms where no definite underlying cause can be found.
Eventually her complaints will ease. No serious injury has been sustained and as such there will be no long term complications.”
32. Finally, in his most recent report, based upon his examination in October 2014, Dr McQuillan has stated:
“This lady continues to make complaints related to her neck and shoulders and continues to receive trigger point injections.
There is really no organic basis for this. At the time of my examination in April 2013 she had multiple complaints as currently but could achieve a normal range of neck movement with some hesitancy over the last 25% of movement. On this occasion she has very significant restriction in neck movement in all directions.
The treatment of choice here would be cognitive behavioural therapy combined with an exercise programme. Further physical intervention should be avoided.
No serious injury has been sustained and eventual recovery will occur. There will be no long term complications.”
Mr Frank McManus’s report
33. Mr McManus also conducted a medico-legal assessment of the plaintiff on behalf of the defendants, and he examined her on the 17th of December 2013. He reported (inter alia):
“My first observation is that it is very unusual to have a symptom profile that persists for six years following soft tissue injuries as a result of a road traffic accident.
In the context of this lady’s coccygeal symptoms and she identifies the area correctly anatomically the mechanism of the injury that she sustained is very difficult to understand.
Injuries to the coccyx are primarily associated with straddle injuries i.e. when a patient falls and the injury is as a consequence of a direct impact between the legs directly onto the buttocks. This lady was sitting in a taxi when the collision occurred and I cannot understand how she would injure her coccyx under such clinical circumstances.
When I saw this lady the symptoms were in the coccygeal area and she had no symptoms in her lumbar spine and in fact on clinical examination her lumbar spine was normal.
She has symptoms in her cervical spine and it is difficult to understand why these symptoms have persisted and the reason I make that statement is because of the pattern of the symptoms she is having at the present time. Specifically this lady’s cervical spine is not symptomatic under axial loading. She herself volunteered to me that when she was looking straight ahead she had no symptoms in her cervical spine and that in fact is the very clinical circumstances when the cervical spine should be painful if a significant injury was sustained in the first instance.
I also have to point out that on examination of this lady she demonstrates a significant loss of function which is very difficult to understand acknowledging her youth and the reported normality of the MRI scan carried out and referred to by Mr. McQuillan.
I am also aware on the basis of Mr. McQuillan’s report that the EMG studies of the right upper limb were normal and it is therefore also difficult to explain the intermittent symptoms of altered feeling in the fourth finger of the right hand that Grace Cronin complains of.”
“Overall this lady did not sustain a fracture, she sustained soft tissue injuries and I do not consider the injuries she sustained are significant primarily based on the observations listed above. This lady is not pre-disposed to the development of a post traumatic osteoarthritis and personally I would have thought a slightly more aggressive rehabilitation programme would be appropriate under the circumstances of the persistent symptoms that she has. This lady has to understand that she has to move her neck to make her neck normal. If she does not push herself then the symptoms and the loss of function that she manifests may very well continue but the pattern of the symptoms does not indicate to me that she sustained a significant injury.”
The judgment of the High Court
34. In making his award the trial judge relied upon the following findings of fact, based upon his assessment the plaintiff’s testimony, and the medical reports submitted. The only oral evidence adduced in the case was the testimony of the plaintiff.
35. The plaintiff was born on the 23rd of March 1977. She is a chemical engineer by profession, and at the time of the accident was working in Kildare. Prior to the accident she had had her own home in Dublin. By the time of the hearing before the High Court in April 2015 she was spending most of her time working and living in South Korea. On those occasions when she returns to Ireland, she now lives with her parents. She had moved back in to her parents’ home following the accident. The trial judge noted that the plaintiff was fortunate that her employers paid for business class seats for her on her journeys to and from South Korea, which recline fully and give her rest on the journey.
36. The trial judge found that prior to the accident the plaintiff was a very sporty individual who liked jogging and physical exercise, and who moved out and about socialising, enjoying meals and the like as any young person of her age, and with a reasonable job at the time, would have done.
37. The trial judge was satisfied that the accident was a very violent collision. She was thrown back and forward, and bumped her head. After the accident, the taxi driver had kindly arranged for another taxi to take her the rest of the way to her parent’s house.
38. When the plaintiff went to sit down in the second taxi she suffered sharp pain in her coccyx area and was in pain when she got to her parent’s home. On the advice of her parents she went to see her local GP at nine o’clock in the morning. By this stage she had back pain and neck pain.
39. The plaintiff also developed significant bruising from her seatbelt in the aftermath of the event, photographs of which were produced in High Court, and the trial judge stated that he was satisfied that this bruising had lasted until some time in January of 2008.
40. It was initially hoped that the plaintiff’s symptoms would calm down and abate, but when they had failed to do so by her second visit to her GP, he sent her to be x-rayed. By this stage the plaintiff was in such discomfort she had to travel in the passenger seat of her mother’s car, with the seat fully reclined so that she was almost lying out. She was not out of work for any protracted period. She would be driven to work in Kildare a friend’s car and driven home from work by her mother. She was not claiming any loss of earnings.
41. Later the plaintiff went an MRI. All of the radiological investigations that she underwent indicated that there had been no bony damage. The trial judge was satisfied that she had suffered what is described as a soft tissue injury. She had had a large number of physiotherapy sessions, about 30 in all. She went to see Mr. Sparkes, the orthopaedic surgeon, and the trial judge noted the puzzlement he had expressed concerning the extent of her symptoms.
42. The trial judge noted the plaintiff’s evidence that she had been referred by her GP to Dr. Chambers, and that she had also been to some other pain specialists in his absence. He accepted that she had returned to Dr. Chambers and that she had been receiving a course of injections from him at about six monthly intervals. The trial judge noted that she had been getting two types of injections, pain killers and steroids, that were injected into up to nine places in her shoulder, her neck and her head. The plaintiff had described this procedure in her evidence, claiming it was extremely painful, and that it resulted in significant stiffness. The trial judge accepted that for a few days afterwards she had difficulty with movement but that then, happily, she got great relief. However, this relief would wear off after about three months or so.
43. The trial judge accepted that the plaintiff also takes significant amounts of other medication in an effort to delay further injections as long as possible because of pain and discomfort associated with them. He further accepted that the medication had caused the stomach upsets described by Prof McKiernan.
44. The trial judge referred specifically to the reports of Dr Chambers, and quoted the opinions he had expressed in his report dated January 2011, and in his subsequent report dated October 2013, both of which are set out earlier in this judgment at paragraphs 19 and 20 above. The trial judge stated:
“He advises her to avoid in heavy physical activity as it is likely to further exacerbate her symptoms, and indeed the plaintiff has told me and I accept that she has significantly altered her pre-accident lifestyle in that she doesn’t go jogging and she doesn’t take the exercises that she used to do.”
45. The trial judge also quoted, with ostensible acceptance, the prognosis expressed by Dr Chambers in his letter of November 2014, to which I have referred earlier in this judgment at paragraph 22 above. The trial judge was satisfied that Dr Chambers was, in summary, saying two things. First of all, that the plaintiff’s symptoms had plateaued, and secondly, that he expected the injuections to be finished in five to ten years.
46. The trial judge concluded that there was insufficient evidence to link the shingles episode to the accident.
47. The trial judge went to consider the medical reports submitted on behalf of the defendants, noting in particular the opinions of Mr McQuillan and Mr McManus. He stated:
“Mr. McQuillan says, in essence, that he expected initially the plaintiff’s pain was protracted but in his subsequent report he thinks that this is more protracted than he originally expected. Dr. McManus doubted whether her coccyx pain was related to the accident as she described it. The question in this regard and in regard to the defendant’s cross-examination of the plaintiff and what was said by Mr. Sparkes in his report is whether the plaintiff is to be believed, whether she is a truthful witness in relation to her complaints. I have no doubt that the plaintiff is a truthful witness. I have no doubt but that she pain in her coccyx associated temporarily with the accident. I have no doubt that as she herself against interest stated that this pain has gradually subsided and by some time in 2011 it was reduced to a nuisance rather than a pain. The other pain is soft tissue in her neck and shoulders and she demonstrated to me the significant misalignment of her shoulders. I do not accept for one moment that the plaintiff is going through all the pain of the two steroid type injections in up to nine places twice a year in order somehow to increase her damages and without cause I accept that the plaintiff was honest throughout her evidence in court.
I believe she is genuine. I believe she is likely to require further injections from Dr. Chambers for up to ten years.”
48. The trial judge concluded:
“The plaintiff has been significantly disabled by what she has gone through. She is working but her lifestyle has been interfered with. She has got regular pain. She has got fairly constant pain and this continues to increase over the time before the injections are carried out and then it subsides. This is likely to continue for ten years in any event, if not longer, but I will accept Dr. Chambers that the injections will cease in about ten years time.”
49. Having made those findings the trial judge then proceeded to make his previously stated award.
Submissions
Submissions on behalf of the defendants
50. Acknowledging that the legal principles applicable are those laid down in Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578, the defendants contend that the award was excessive and disproportionate to the actual injuries sustained, and that this Court should interfere to set aside the trial judge’s award. It was contended on behalf of the defendants that following the Rossiter case “[t]he test is whether there is any reasonable proportion between the actual award of damages and what the Court, sitting on appeal, would be inclined to give. The case law indicates that the Court will not disturb an award unless there is a disparity of at least 25% … .”
51. The defendants have pointed out that it was agreed by all doctors involved that the plaintiff suffered no structural damage and that such injuries as she contends for are soft tissue in nature only. All MRI scans, bone scans and nerve conduction studies carried out were normal.
52. Particular reliance was placed on the clinical examinations carried out by Dr Simon following which he had reported full ranges of movement of the plaintiff’s neck and back, with no tenderness and full and equal straight leg raising on both sides. Reliance was also placed on the plaintiff’s own testimony that by 2011 her coccygeal pain “was down to nuisance level”. The defendants also relied upon the fact that Mr Frank McManus could not understand how the plaintiff could have sustained an injury to her coccyx in the manner she described.
53. The defendants also relied upon Dr McQuillan’s opinion that there was no organic basis for the plaintiff’s complaints in relation to her shoulder and neck, and have pointed to Mr Sparkes’ comment in his report dated 24th September 2014 that “[t]he pain and tenderness demonstrated at clinical examination was in my opinion disproportionate to the objective findings especially with regard to the extreme pain response to minimal palpation of the soft tissue …” as being consistent with Dr McQuillan’s view.
54. Much reliance was also placed on Mr Frank McManus’s contention that he was unable to explain the symptom profile.
55. The defendants point to the guidance provided in the Book of Quantum in relation to neck and back soft tissue injuries, as follows:
Neck:
Substantially recovered within twelve months up to €14,400.
Substantially recovered within twenty four months €11,500 – €17,400
Significant ongoing €15,900 – €64,500
Serious and permanent conditions €59,400 – €78,400
Back:
Substantially recovered within twelve months up to €16,300.
Substantially recovered within twenty four months €11,700 – €19,600
Significant ongoing €18,300 – €69,700
Serious and permanent conditions €62,800 – €85,900
56. It was submitted that the trial judge assessed general damages at a rate which suggests that the plaintiff had significant ongoing complaints or some permanent serious condition in her neck and/or back, neither of which was justified having regard to the evidence adduced. It is submitted that the trial judge, by reference to the Book of Quantum guidelines, should have awarded damages within the “significant ongoing” range, at most. It was further contended that to the extent that it might be argued that the guideline figures in the Book of Quantum require adjustment, any increase having regard to the current economic climate and the absence of inflation, should be modest.
Submissions on behalf of the plaintiff
57. The plaintiff also accepts that the leading authority governing the circumstances in which this Court might be justified in interfering with an award of damages by the court below is Rossiter v Dun Laoghaire Rathdown County Council [2001] 3 IR 578. It was submitted, however, that the actual test enunciated by the Supreme Court is encapsulated in Fennelly J’s statement that the appellate court “should only interfere when it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The test of proportionality seems to me to be the appropriate one, regardless – it need scarcely be said – of whether the complaint is one of excessive generosity or undue parsimony.”
58. It was submitted on behalf of the plaintiff that the defendants’ submissions overly relied on the defendants’ medical reports and were selective with respect to the plaintiff’s medical reports. Nor do they refer to her oral evidence and the photographs of her bruising produced to the court.
59. It was pointed out that the plaintiff had testified:
(i) that she had received quite severe bruising and photographs were produced to the court.
(ii) that she had suffered immediate sharp coccygeal pain once she sat down and she gave oral testimony regarding the coccygeal pain and the general low back pain and stiffness and the pain in her neck.
(iii) describing the trigger point injections and the procedures which she is now required to take every 6 months.
(iv) that there was a visible difference in the line of her shoulders which is due to muscle spasm. She had pointed to this discrepancy while in the witness box and the trial judge had noted that her right hand shoulder was indeed higher than her left. Also, the plaintiff gave evidence that her shoulder lowers at about 2 weeks into the 6 month cycle of injections and remains like that, and that it worsens towards the end of the 6 month period and is at its worst at the end of that cycle. She stated that she had dealt with the self-conscious aspects of trying to hide her raised shoulder by deliberately having long hair to cover it up. Further, she contended she also dresses to cover it up. She told the court that the difference in shoulder height was noticeable and that people do spot it and comment upon it.
(v) describing her pain killing medication and the effects of same upon her stomach and how she suffers burning sensation in her stomach. She further told the court that she had become less tolerant of oily food, alcohol and painkillers, including mild over the counter painkillers, necessitating referral to Dr. McKiernan, Consultant Gastroenterologist.
(vi) that she has had to adapt her life because of her ongoing symptoms. Prior to the accident she did quite a bit of jogging, did 10K fun runs, meeting a regular group 3-4 evenings a week and was a member of a gym and had a good circle of friends and that that is all now hampered, because, in her words, she is “the girl who goes home all the time because she feels sick or her neck hurts” and that her life has been compromised in that way.
(vii) that she now manages her life within the cycle of the necessary trigger point injections, and that she is not improving.
60. We have been further referred to the various reports of Dr Ajina, Mr Sparkes, Dr Chambers and Mr McQuillan, which I have already reviewed and summarised.
61. It was submitted that that the plaintiff’s injuries are long standing and serious. She is only managing her lifestyle with the help of medication and a quite invasive six monthly cycle of trigger point injections. This has continued from the time of the accident, on 5th December 2007, to date and is likely to continue for at least ten years more.
62. The plaintiff’s side points out that the defendants made no reference to the Book of Quantum during the trial of the action and it is contended that in any event the 2004 Book of Quantum does not deal with the plaintiff’s particular injuries.
63. Finally, it was submitted that the injuries suffered by the plaintiff had had a major effect upon the life up to the trial, that they continued to have a major effect upon her life at that time, and that they would continue to do so for at least a further 10 years. It was submitted that the award of the trial judge was not erroneous. There had been no error in the award of damages which was so serious as to amount to an error of law. The award of General Damages was both reasonable and proportionate.
Decision
64. In Nolan v.Wirenski [2016] IECA 56 (unreported, Court of Appeal, Irvine J, 25th February 2016) this Court addressed the jurisdiction of an appellate court to overturn an award of damages. Irvine J, with whom Ryan P and Peart J agreed, citing Foley v. Thermocement Products Ltd (1954) 90 ILTR 92; Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 IR 578 and Hay v. O’Grady [1992] 1 I.R.210 stated (at para 21) that “[a]n appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers appropriate in respect of the injuries concerned”, and further stated (at para 23) that as an appellate court does not enjoy the opportunity of seeing and hearing witnesses in the same manner as the trial judge at first instance “an appellate court must be cautious and avoid second guessing a trial judge’s determination as to what constitutes appropriate damages in any given case.”
65. That having been said, Irvine J noted (at paras 24 & 25 ) that the appeal in question was:
“… a case in which the plaintiffs medical evidence was not given via voce. The plaintiffs expert reports were, by agreement, handed in to the trial judge and in this respect this court is in as good a position as the trial judge to evaluate the weight to be attached to that evidence. 1 am nonetheless mindful of the fact that this medical evidence cannot be viewed in isolation and must be considered against the backdrop of the plaintiffs own evidence, which this court has not had the benefit of hearing.
Accordingly, it is fair to say that it is not for an appellate court to tamper w ith an award made by a trial judge who heard and considered all of the evidence. It is only where the court is satisfied that the award made was not proportionate to the injuries and amounts to an erroneous estimate of the damages properly payable that this court should intervene.”
66. It seems to me that exactly the same considerations arise in the present case and that the approach must be the same.
67. Irvine J’s judgment in Nolan v.Wirenski addresses in some detail the correct approach to the assessment of damages in personal injuries cases. It points out (at para 31) that “[p]rinciple and authority require that awards of damages should he (i) fair to the plaintiff and the defendant; (ii) objectively reasonable in light of the common good and social conditions in the State; and (iii) proportionate within the scheme of awards for personal injuries generally. This usually means locating the seriousness of the case at an appropriate point somewhere on a scale which includes everything from the most minor to the most serious injuries.”
68. Irvine J made the further points (at paras 38 & 39) that “… it is reasonable to seek to measure general damages by reference to a notional scale terminating at approximately the current maximum award endorsed by the Supreme Court which is in or about €450.000. That is the figure generally accepted by senior practitioners and judges alike as the appropriate level for compensation for pain and suffering in cases of extreme or catastrophic injury” and that “[w]hen it comes to assessing damages I believe it is a useful to seek to establish where the plaintiffs cluster of injuries and sequelae stand on the scale of minor to catastrophic injury and to test the reasonableness of the proposed award, or in the case of an appeal an actual award, by reference to the amount currently awarded in respect of the most severe category of injury. Such an approach should not be considered mandatory and neither does it call for some mathematical calculation; what is called for is judgment, exercised reasonably in light of the ease as a whole.”
69. In the present case, although the plaintiff was cross-examined by counsel for defendants on the basis that the defendants’ medical experts were unable adequately to explain the severity of her symptoms, it was never put to her in terms either that she was feigning or that she was exaggerating her symptoms. The trial judge expressed himself satisfied that the plaintiff was a genuine and credible witness. He so concluded having both heard and observed her in the giving of her evidence and in circumstances where he regarded it as impossible to accept “for one moment that the plaintiff is going through all the pain of the two steroid type injections in up to nine places twice a year in order somehow to increase her damages”. I see no basis for impugning the trial judge’s assessment of the plaintiff’s credibility, particularly in circumstances where Dr Chambers has provided evidence that while the great majority of soft tissue injuries (80%) do settle down, typically within two years, the remainder prove more intractable and some become chronic, in the latter case taking between five and ten years to resolve. There is no reason to believe that the plaintiff is not one of the small percentage of persons with soft tissue injuries who has been unfortunate enough to developed chronic symptoms.
70. By the same token, in reviewing the award of general damages in this case, it is necessary to have regard to the objective medical evidence. The starting point is that the main injuries, i.e., those involving the plaintiff’s cervical and trapezius region, and her coccygeal region, were soft tissue in nature and happily did not involve anything structural. There was also short term, but none the less extensive, bruising to the plaintiff’s trunk caused by her seatbelt. In addition, she had some bruising to her head as a result of striking her head against the seat rest in front of her, as a result of which she also broke her reading glasses. She has also developed chemical gastritis due to long term use of oral pain relieving medication, and this requires to be managed with PPI tablets and dietary modifications.
71. The bruising to the plaintiff’s head and trunk resolved totally within a matter of weeks. The coccygeal injury had largely resolved by mid 2011 (three and a half years post accident), by which time the plaintiff was characterising it as nothing more than a nuisance.
72. The intractable aspect of the plaintiff’s injuries are those involving her neck and shoulders. It has to be accepted that she has significant ongoing symptoms, which she manages through a combination of six monthly nerve block injections administered by her pain consultant, oral medications and by lifestyle changes. There seems to be no doubt but that the nerve block injections involve an unpleasant procedure, but the benefits overall are acknowledged to outweigh the unpleasantness involved. There is a short delay following the procedure before relief is felt, then there is considerable relief which diminishes gradually over succeeding months until the point is reached where further injections are required. This is likely to continue in the opinion of Dr Chambers for at least five, and possibly up to ten years. However, he has commented that he has had very few patients that have attended for such treatment for more than ten years.
73. The injuries suffered by the plaintiff were indeed significant, and she was entitled to be properly and adequately compensated for them. However, they were not catastrophic injuries. Moreover, the prognosis for the plaintiff is for eventual recovery with time, although admittedly this is likely to take much more time than would normally be expected for soft tissue injuries. She has already recovered to some degree.
74. The plaintiff is a biochemical engineer working in the pharmaceutical industry. She did not lose any time off work as a result of the accident. Her employment at the time was in Kildare and following the accident which occurred on a Thursday on her return from a holiday in Dubai, she was able with the help of a colleague and of her mother to travel to and from work the following week. Her work subsequently took her to South Korea from December 2013. She initially went there once a month for a week at a time and gradually her periods there built up. At the time of trial in April 2015 she had been working full-time in South Korea since the previous May. The fact that the plaintiff was able to continue her work uninterruptedly is a significant objective fact. Indeed, she was able to undertake a major change in her career that involved long and arduous travel. Notwithstanding the fact that her employers provided the relative comfort of Business Class flights, the fact that she was able to fly such distances and to carry on her highly responsible work so far away from home and for long periods cannot be ignored in the assessment of damages. It is, of course, to the plaintiff’s credit that she kept on working and did not let the injuries prevent her doing so but it is also relevant when considering the impact of the accident and its consequences on the plaintiff’s life as a whole. Many injured persons have to endure the frustrations of incapacity to work as well is the pain and suffering from their injuries. And the fact that the plaintiff was able to live and work for long periods in Southeast Asia without getting any treatment is also, firstly, to her credit and, secondly, relevant as objective information that she was able to carry on her work in those circumstances. The analysis of the award of damages has to take account of this evidence.
75. The plaintiff has undoubtedly also seen prejudice to the quality of her life outside of her work. However, while many of her pre-accident physical activities, and some social activities, remain closed off to her, it is clear that she has resilience and fortitude and with necessary lifestyle modifications pending further recovery she is in a position to limit that prejudice.
76. The defendants were right to point to the book of quantum. The Civil Liability and Courts Act 2004 requires a judge in a personal injuries case to have regard to the Book of Quantum, although he may also have regard to other factors. While the Book of Quantum requires updating, it is not so out of date as to be of no relevance. Moreover, where it is perhaps of particular help is in terms of locating where on the scale of general damages where the upper end is determined by the figure appropriate to catastrophic injuries soft tissues of various grades lie.
77. The current Book of Quantum, published in 2004, recommends an award of general damages of up to €300,000 for both quadriplegia and paraplegia. As previously indicated, Irvine J has stated in Nolan v. Wirenski, that today €450,000 is regarded as the upper limit for catastrophic injuries, a figure which represents a 50% increase on the 2004 figure.
78. It is clear from the indicative figures provided by the Book of Quantum, even if updated by a crude 50%, that the trial judge’s award of €180,000 in respect of pain and suffering (€100,000 to date and €80,000 into the future) is difficult to justify. In the circumstances I consider that his award was disproportionate to the injuries suffered and excessive to the point that in line with the principles articulated by the Supreme Court in Rossitter, it should be set aside.
79. Independently of the Book of Quantum, it is appropriate also to examine the award of damages by reference to where the plaintiff’s injuries fall to be located on the range that comes before the courts for assessment between minor and very severe. That is the approach that this Court adopted in Nolan v Wirenski and also in Shannon v O’Sullivan [2016] IECA 93. In the latter judgment Irvine J said at paragraph 34:
“As to how a court should decide what is proportionate in terms of damages, I believe it is useful to seek to establish where the plaintiff’s cluster of injuries and sequelae are to be found within the entire spectrum of personal injury claims which includes everything from very modest injuries to those which can only be described as catastrophic. While this is not a mandatory approach, it is a useful yardstick for the purposes of seeking to ensure that a proposed award is proportionate. This type of assessment is valuable because minor injuries should attract appropriately modest damages, middling injuries moderate damages, severe injuries significant damages and extreme or catastrophic injuries damages which are likely to fall somewhere in the region of €450,000. The exercise is also valuable because awards of damages must be proportionate inter se and every injured party who receives an award of damages should be in a position to look to other awards made in respect of different injuries and conclude that their award was fair and just having regard to the relative severity of each. As Denham J. advised in M.N v. S.M., damages can only be fair and just if they are proportionate not only to the injuries sustained by that plaintiff but also proportionate when assessed against the level of the damages commonly awarded to other plaintiffs who have sustained injuries which are of a significantly greater or lesser magnitude. At para. 44 of her judgment she stated “there must be a rational relationship between awards of damages in personal injuries cases.”
Again, I am of the view that in light of all the evidence in the case the damages awarded by the High Court are disproportionate and excessive when considered against the spectrum of damages awarded by the courts in cases of personal injury.
Conclusions
80. Taking full account of the findings of the High Court as to the credibility of the plaintiff, in my judgment a reasonable and proper award in this case would be €75,000 for pain and suffering to date and €30,000 for pain and suffering into the future, giving a total award for general damages of €105,000. To this must be added the agreed special damages of €20,000, amounting to a total overall award of €125,000. I would therefore set aside the order of the High Court and replace it with an award of €125,000.
Gore (A Minor) v Walsh
[2017] IECA 278
JUDGMENT of Ms. Justice Irvine delivered on the 26th day of October 2017
1. This is an appeal against the Order and judgment of the High Court, Cross J., of the 22nd April, 2016. By his judgment and Order he awarded Paul Gore, a minor, (“Paul”) a sum of €50,000 damages, comprising a sum of €25,000 for pain and suffering to date and €25,000 in respect of pain and suffering into the future, in respect of injuries which he found had been sustained by Paul on the 11th December, 2011, as a result of the defendants’ negligence.
Undisputed background facts
2. Paul was born on the 28th March, 2007. In 2011, he was living with his mother and next friend, Sharon Gore (“Ms. Gore”), in a property which she had rented from the defendants at Dingle Road, Cabra West, Dublin. Some months prior to Paul’s injuries, the first named defendant Mr. John Walsh, who is the father of the second named defendant Mr. Darren Walsh, had renovated the property so that Ms. Gore would be in a position to give each of her two children a bedroom of their own. This had required the installation of a partition wall and new radiators. That work had been carried out by Mr. Ken Walsh, a plumber by trade and a brother of the first named defendant.
3. Whilst there were no witnesses to the incident in question, the parties were agreed that Paul was injured when he fell from his sister’s bed onto the uncovered spindle/valve of the radiator in her room which the trial judge found had been fractured and was unprotected by the standard plastic cap which is normally secured in place and which covers the valve. It is also agreed that on the night of Paul’s injury or the following day Mr. John Walsh visited the rental property at which time the radiator spindle was noted to be both fractured and uncovered. It was further accepted that the radiator concerned had been installed in the course of renovation works carried out in October, 2011 and that it was a new radiator.
The claim
4. The claim advanced on Paul’s behalf was that he had been injured as a result of the defendants’ negligence in, inter alia, providing him with accommodation which was dangerous by reason of the presence thereon of an unprotected radiator valve.
The evidence
5. At the hearing Ms. Gore, gave evidence that on the day prior to Paul’s injuries she had telephoned the first named defendant to complain that the radiator valve was unprotected, evidence which he contested. She later changed that evidence to say that she telephoned him a week or two before the accident to advise him that the radiator spindle constituted a danger. She also gave evidence that on the night Paul sustained his injuries she had telephoned Mr. John Walsh to complain that Paul had injured himself on the defective radiator. Concerning the radiator, Ms. Gore stated that while the spindle was uncovered she could nonetheless use the radiator which could be turned on using the mains switch.
6. Mr. Pat Culleton, the Plaintiff’s engineer, when asked by the trial judge to offer his opinion as to what might have caused the spindle to be broken and left with a jagged edge, stated as follows:-
172. A. “I speculate that over tightening of the screw may fracture it….It would take, if you remove the cap and struck the end of it with a hammer you could achieve that effect”
7. When asked by counsel as to what type of hammer impact would be required to achieve that, he replied as follows:-
176. A. “It’s described as being the underside of the spindle so that the hammer would have to be exerted against the exposed secure [sic]. In other words, no cap, the secure [sic] in it and a strike to the screw which would then fracture the underside of the thread. In other words knock it down through the spindle. It’s simply not something that would arise in normal service or kids jumping on it. It’s just not plausible.”
8. On behalf of the defendants, Mr. Ken Walsh stated that the radiators were not defective or broken when unpacked. The valves were delivered in an “off” position and the radiators could not be operated until they had been turned on with the knob. He stated that he would have checked that the radiators were properly installed and were working on the completion of the renovation works. It was “ridiculous”, he said, to suggest that the radiators had been left without the cap to the radiator having been fitted.
9. Under cross-examination, Mr. Ken Walsh explained that it was not necessary to unscrew the cap to do anything to the back of the radiator. It would only be unscrewed if it was necessary to work behind the cap itself. He ventured the opinion that if the valve was subjected to constant banging then that might account for the plastic top being knocked off and the spindle becoming damaged.
10. As to causation, counsel for the plaintiff put the following proposition to Mr. Ken Walsh:-
210. Q. “Well happily, it’s not for me to have to think about it, Mr. Walsh, but if [sic]put the following to you, isn’t it clear that what actually happened in this case is that you intended to come back and finish it, but you hadn’t finished the job?
A. No.
211. Q. You left them or they had been left in an exposed state?
A. No.”
11. The evidence of Mr. John Walsh was that he and his wife had painted the room concerned and the skirting boards following the completion of the renovation works at which stage he was satisfied the cap was in situ. He denied any telephone call from Ms. Gore to complain that the spindle of the radiator had been left uncovered. If she had made such a call he would have asked his brother to call up and repair it. He agreed that when he went to inspect the radiator shortly following Paul’s accident that the cap was not on the spindle and that it had been damaged. Mr. Walsh agreed that he had heard Mr. Culleton’s evidence as to the force required to break the spindle and accepted that it was unlikely that such damage could have been done by a four-year-old. He also agreed with counsel for the plaintiff that he considered it likely that the Gore family had broken the valve some time after the renovation works had been completed. He later clarified that statement is his answer to question 112 in the following manner:-
112. Q. “And the condition that you say you saw it in on that night you say is something that was done by the Gores?
A. I don’t know who done it. It wasn’t left like that when I put it in.”
12. Two final matters need to be mentioned, the first being that Mr. John Walsh denied that in the phone call made by Ms. Gore on the night of the accident she had made it clear she was holding him responsible for Paul’s injuries. The second, that it was undisputed that at the time Paul was injured Ms. Gore was in arrears with her rent and had been served with a 28 day Notice advising her that her tenancy would be terminated.
Judgment of the High Court judge
13. The trial judge decided the liability issue by addressing whether the defective state of the radiator upon which Paul was injured was or was not the fault of the defendants. In support of his finding that such fault was to be attributed to the defendants he cited his conclusion that the radiator cap was likely damaged by a servant or agent of the owner. This damage to the spindle had probably been done before they left the premises, by delivering to it a heavy sharp blow when working on it with spanners or hammers or the like. Thus, causing it to fracture and that this damage had not been noted by the first named defendant or his wife when they had later painted the room. He concluded that it was fanciful to suggest that the radiator had been damaged by the movement of Paul’s sister’s bed as had been advanced by Mr. Ken Walsh, who had installed the radiators.
14. For the purposes of determining liability the trial judge stated that he did not find it necessary to resolve the dispute as to whether or not Ms. Gore had telephoned the first named defendant prior to Paul’s injuries to advise him of the condition of the radiator stating that:-
“The real issue in the case is whether the condition of the radiator as discovered by Mr. Walsh after the accident, namely no cap and a fractured spindle, was left in that condition by Mr. Walsh and his agents or whether it happened subsequent. That is the central issue in this case.”
15. The trial judge went on to conclude that it was to be inferred from the evidence adduced by the plaintiff that as a matter of probability the central heating radiator had been left in a dangerous and exposed situation by the defendants. He expressed himself satisfied that the telephone call made by Ms. Gore to the first named defendant on the evening of Paul’s injury was only consistent with her belief that she had an entitlement to complain about the condition of the radiator. As was the fact that Mr. Walsh had, according to the trial judge, hot footed it to the property to inspect it that night or the following day.
16. Having found the defendants liable the trial judge referred to the laceration sustained by Paul which had required suturing and which had left him with what the trial judge described as a significant scar of somewhere between 4.2 cm and 6 cm and proceeded to award him a sum of €25,000 for pain and suffering to date and a further sum of €25,000 for pain and suffering into the future.
The appeal
17. By notice of appeal dated the 19th May, 2016, the defendants have appealed the findings of the trial judge in respect of liability and also in respect of the quantum of damages which he awarded.
Submissions of defendants/appellants
18. The defendants submit that:
1. There was no credible evidence or indeed any evidential basis to support the trial judge’s finding that Paul’s injuries had been caused by the negligence of the defendants, their servants or agents, in damaging the radiator spindle by delivering to it a hard blow with a hammer, spanner or some other implement. This finding was pure speculation on the part of the trial judge. Neither was there any evidence which permitted the trial judge to draw the inference that the spindle and/or radiator had been damaged in this way.
2. The act of negligence which formed the basis for the trial judge’s liability finding had never been canvassed with the defendants’ witnesses and in particular had never been put to Mr. John Walsh or Mr. Ken Walsh so that they might address or contest such alleged negligence. To that extent, the trial was unsatisfactory.
3. The damages were excessive having regard to the size and position of the plaintiff’s scar and the extent of the consequential pain and discomfort.
Submissions of the plaintiff/respondent
19. Counsel for the plaintiff submits:
1. That the trial judge’s finding that the spindle had been damaged by a blow from a spanner, hammer or some other implement was not central to his determination. His decision was based upon his conclusion that the radiator had been left by the defendants in a damaged condition following the completion of the renovation works rather than caused by Ms. Gore and her family during the period between the completion of the renovation and the date of Paul’s injury. Further, that finding was supported by his conclusion that the only reason why Ms. Gore would have phoned Mr. John Walsh on the night of Paul’s injury was because she believed he was responsible for the injury.
2. The defendants had been afforded a sufficient opportunity to respond to Mr. Culleton’s evidence as to the type of impact and tools that might cause a fracture to the spindle of a radiator as had occurred in this case.
3. In reaching his decision the trial judge had considered the credibility of the evidence adduced by each of the witnesses, including the evidence of Mr. Ken Walsh and that of Mr. John Walsh concerning the radiator when it had been installed and painting done, but had rejected the same in favour of the evidence adduced on behalf of the plaintiff through his mother and her engineer, Mr. Culleton.
4. As to the award of general damages, the award made was fair, just and proportionate. The scar was, according to counsel, “horrific” and was permanent.
Principles
20. As there is no real dispute concerning the principles to be applied on this appeal, it is unnecessary to refer to them in any great detail. Suffice to say that when it comes to interfering with the findings of fact made by a trial judge, the long established principles set out in Hay v. O’Grady [1992] 1 I.R. 210 apply. If the findings of fact made by the trial judge are supported by credible evidence, the appellate court is bound by those findings, however voluminous and apparently weighty the testimony against them may be. As was stated by McCarthy J., the truth is not the monopoly of any majority. Further, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge to draw its own inferences.
21. As to the circumstances in which an appellate court will interfere with an award of general damages, two of the most regularly quoted decisions are those of Fennelly J. in Rossiter v. Dun Laoghaire Rathdown County Council [2001] 3 IR 578 and McCarthy J. in Reddy v. Bates [1983] I.R. 141. The former judgment advises, inter alia, that the test to be applied by the appellate court is to decide whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, would be inclined to give and that an appellate court should only interfere with an award of general damages if it considers that there is an error in the award of damages which is so serious as to amount to an error of law. The latter decision advises that a general rule of thumb would require a discrepancy of at least 25% before the appellate court could justify intervening.
22. As to the calculation of general damages, the jurisprudence in this area of law demands that damages for pain and suffering be both just and fair. The award must be (i) fair to the plaintiff and the defendant, (ii) objectively reasonable in light of the common good and social conditions in the State, and (iii) proportionate within the scheme of awards for personal injuries generally. (See for e.g. Denham J. in M.N v. S.M [2005] IESC 17, [2005] 4 IR 461 and my own judgment in Nolan v. Wirenski [2016] IECA 56). It is important, as I stated in Nolan, that minor injuries should attract appropriately modest damages, middling injuries moderate damages and more severe injuries damages of a level that are clearly distinguishable in terms of quantum from those that fall into the other lesser categories of injury. Further, the fact that a judge describes an injury as significant does not mean that the damages must be substantial. How significant the injury is for the purposes of assessing damages should be assessed in the context of the whole spectrum of potential injuries to which any individual might be exposed.
23. As to how a judge at first instance might make a fair and just assessment of the damages to be awarded in respect of pain and suffering in any case, commencing at para. 43 of my judgment in Shannon v. O’Sullivan [2016] IECA 93 I stated as follows:-
“43. Most judges, when it comes to assessing the severity of any given injury and the appropriate sum to be awarded in respect of pain and suffering to date, will be guided by the answers to questions such as the following:-:
(i) Was the incident which caused the injury traumatic, and if so, how much distress did it cause?
(ii) Did the plaintiff require hospitalisation, and if so, for how long?
(iii) What did the plaintiff suffer in terms of pain and discomfort or lack of dignity during that period?
(iv) What type and number of surgical interventions or other treatments did they require during the period of hospitalisation?
(v) Did the plaintiff need to attend a rehabilitation facility at any stage, and if so, for how long?
(vi) While recovering in their home, was the plaintiff capable of independent living? Were they, for example, able to dress, toilet themselves and otherwise cater to all of their personal needs or were they dependent in all or some respects, and if so, for how long?
(vii) If the plaintiff was dependent, why was this so? Were they, for example, wheelchair-bound, on crutches or did they have their arm in a sling? In respect of what activities were they so dependent?
(viii) What limitations had been imposed on their activities such as leisure or sporting pursuits?
(ix) For how long was the plaintiff out of work?
(x) To what extent was their relationship with their family interfered with?
(xi) Finally, what was the nature and extent of any treatment, therapy or medication required?
44. As to the court’s assessment as to the appropriate sum to be awarded in respect of pain and suffering into the future, the court must once again concern itself, not with the diagnoses or labels attached to a plaintiff’s injuries, but rather with the extent of the pain and suffering those conditions will generate and the likely effects which the injuries will have on the plaintiff’s future enjoyment of life.”
Decision
Liability
24. The first thing to state is that the burden of proof in any case rests with the plaintiff to establish negligence against the defendant. It is not for the defendant to explain how a plaintiff, such as Paul, could have been injured without negligence on its part. Thus, the fact that the trial judge rejected the evidence of Mr. Ken Walsh to the effect that he believed the damage to the spindle of the radiator could have been caused by the repeated banging of the radiator valve was irrelevant to the liability issue. Neither is this a case to which the doctrine of res ipsa loquitur applies.
25. Mr. Culleton in his report of the 3rd June, 2015, which was admitted into evidence by agreement, stated that it was plausible that the children could have stood on the radiator valve because it had been installed horizontally but he did not think that a small child could exert sufficient force to break the spindle. He was unable to offer an explanation for what might have caused the spindle to fracture in circumstances where he was satisfied that whilst over tightening the retaining screw might bend the spindle it would not exert sufficient force to break it. In his report, which after all was obliged to contain the substance of his evidence, he made no mention of the possibility of the spindle having been damaged by a blow from an instrument such as a hammer in the course of the renovation works.
26. Those facts notwithstanding, when Mr. Culleton was asked by the trial judge how the spindle might have been damaged, he offered two possibilities. His first explanation was that it might have been caused by the over tightening of the screw used to attach the cap. His second was that if the uncovered spindle was struck a heavy blow by an instrument such as a hammer the spindle could be fractured. It was undoubtedly this evidence which led the trial judge to find as a fact, on the balance of probabilities, that the defendants, their servants or agents, had damaged the spindle by striking it with “spanners, hammers or some other implement” before they vacated the premises and which later caused the injury.
27. There are a number of significant difficulties from an evidential perspective with this finding on the part of the trial judge. The first is that this act of negligence was not pleaded and the defendants were not on notice of it from the report of Mr. Culleton. The second is that the evidence of Mr. Culleton was nothing more than supposition and speculation. He wasn’t even asked which of his two theories he felt was more likely. Neither did he give any evidence that the defendants would have needed to use hammers or spanners when fitting the radiators or as to the circumstances in which a hammer might have been deployed at a time when the radiator cap had been removed. In fact, Mr. Culleton did not state that the damage to the spindle could have been caused by the use of a spanner or any other instrument as was found by the trial judge. There was no evidence from which the trial judge could have drawn the inference which he did.
28. The third major difficulty with the finding of the trial judge concerning the act of negligence which determined the liability issue is that it was never put to Mr. Ken Walsh who, together with his son, had installed the radiators. Commencing at question 193 there is an exchange between counsel for the plaintiff and Mr. Ken Walsh in the course of which oblique references were made to Mr. Culleton’s evidence of the previous day concerning the force that would be needed to fracture the spindle. This led Mr. Ken Walsh to propose that the spindle might have been damaged by the bed banging off it, a proposition which was then subjected to rigorous cross-examination by counsel for the plaintiff. Following this discourse, it was suggested to Mr. Walsh was that he had left the spindle in an exposed state, a proposition which he rejected stating that he would have checked the radiators before the job was completed. It was never suggested to Mr. Walsh that he or his son had fractured the spindle by knocking it with a hammer or a spanner. Thus, the defendants were denied any possibility of answering that allegation.
29. As perhaps is evident from the extracts from the transcript already quoted, what was put to Mr. Ken Walsh was that he had left the job unfinished.
30. For my part, I am satisfied that the objection made to the finding of fact made by the High Court judge that the spindle was damaged by a blow from a hammer, spanner or some other implement is valid. It was a finding which was the result of speculation and was not supported by credible evidence such that it should be disturbed by this Court. Further, the finding can not be inferred from any circumstantial evidence properly before the Court. In addition, the finding was one which was highly prejudicial to the defendants in that they were afforded no opportunity to rebut it. Accordingly, the aforementioned finding cannot be sustained.
31. I am also satisfied that it cannot be said that the aforementioned finding was not, as was submitted by counsel for the plaintiff, core to the trial judge’s finding on the liability issue. Had the defendants been afforded the opportunity to contest an allegation that they had likely fractured the spindle and left it in that condition such that Paul ultimately injured himself on it, the outcome of the proceedings might well have been different. If the possibility of the spindle having been damaged by a hammer, spanner or other instrument had been successfully rebutted, the court would have had to look for some other reason to explain how it had come to be in a fractured condition at the time Paul sustained his injury. The court would have considered the likelihood of the spindle having been damaged at installation and left uncovered at the conclusion of the defendants’ work as opposed to the damage having occurred on the Gore’s watch. To find for the plaintiff the court would require evidence, circumstantial or otherwise, from which it could infer that the defendants had damaged the spindle and left it in a fractured condition and uncovered at the end of the renovation process.
32. Counsel for the plaintiff may be correct in his submission that the decision to be made by the High Court judge was whether the damage to the spindle happened on the defendants’ watch or after they left. But that does not mean that this Court can ignore the finding of fact supporting the trial judge’s conclusion that the damage happened on the defendants’ watch. In reaching his decision, the High Court judge clearly attached weight to two factors. The first being Mr. Culleton’s evidence that damage from a heavy blow from a hammer could cause this type of injury. The second being the phone call made by Ms. Gore, which he considered supported her evidence that the spindle had been defective from the outset, and that she had advised Mr. John Walsh of this fact. If one removes, as one must, the finding that the damage was probably caused by a heavy blow inflicted by a hammer, spanner or something else a reassessment of the liability issue is clearly warranted.
33. For the aforementioned reasons I am satisfied that the finding of liability made by the High Court judge cannot stand. However, I am not satisfied that the consequences of the error made by the trial judge are such that the plaintiff’s claim should be dismissed. That would be to do an injustice to the plaintiff in circumstances where on a proper and correct approach the plaintiff may be in a position to adduce evidence sufficient to warrant a finding of negligence on the part of the defendants. That being so, I would favour allowing the appeal, and would propose that a retrial be directed.
Quantum
34. Paul was taken to Temple Street hospital, where his wound was stitched. He was not detained. He returned to hospital to have the sutures removed five days later. He was prescribed a course of antibiotics against the risk of infection and his mother kept the wound covered with a plaster for three weeks so as to insure the wound was kept free from contamination. There was no evidence to suggest that Paul experienced any pain or distress following the period immediately following his fall.
35. Accordingly, for the purposes of assessing damages the only other factor to be considered is the scar on Paul’s back, which, in the context of cosmetic injuries that commonly come before the courts, is at the very lowest end of the cosmetic injury spectrum. Mr. Okafor, consultant in paediatric emergency medicine, in his report of the 16th May, 2012, stated that the scar, which he assessed as being 4 cm in length, would persist for a few years and gradually fade. Dr. Siúin Murphy, consultant plastic surgeon, in her report of the 8th June, 2015, described the scar as 4.2 cm in length and as a “linear, mature white scar” and ”needs no intervention”. Paul’s scar is described by Mr. McQuillan, consultant in emergency medicine as “a 6 cm pale longitudinal scar on the right lower back” which is “a little wide”.
36. I am satisfied that the amount awarded by the trial judge in respect of general damages in this case cannot be considered to be just, fair or proportionate to the injury sustained. Neither is it an award which is proportionate when viewed in the context of awards commonly made in respect of other categories of personal injury of a more significant nature. Of particular importance as far as I am concerned, is the fact that I do not consider this award objectively reasonable in light of the common good and social conditions in the State.
37. Paul was not left with a significant scar, as was determined by the trial judge. Neither can his scar be described, as it was by counsel, as horrific. This scarring injury, unaccompanied as it is by any other physical or psychological injury, is possibly if not probably the smallest scar that I have ever seen form the subject matter of High Court proceedings in more than 35 years of legal practice. The scar is somewhere between 4 and 6 cm (1.5-2.3 inches). It is not keloid or red. It is white. It does not cause any irritation and is located on a part of the body which cannot be seen when he is clothed. Even then, it could not conceivably cause him any embarrassment. If there was any such possibility I’m certain it would have been identified by his consultant plastic surgeon. It is confirmed that the scar will not impact on his activities in any way.
38. If modest lacerations such as that sustained by Paul are to attract awards of €50,000 it is difficult to see how the Court would be in a position to make a proportionate and fair award in respect of, for example, substantial third degree burns to a large area of the body including the face which would not require an award of damages far beyond the level of damages commonly reserved for those who sustain the most extreme type of catastrophic injury such as severe brain damage or quadriplegia.
39. In the aforementioned circumstances I consider the award made by the High Court judge excessive to the extent that it should be considered to be error of law as per the guidance given by Fennelly J. in Rossiter v. Dun Laoghaire Rathdown County Council. I would favour a reduction of the award to the sum of €25,000 and I would apportion that sum as to €15,000 to date and €10,000 into the future.
Conclusion
40. For the reasons set out earlier in this judgment I would allow the appeal both in respect of liability and quantum.
41. I am satisfied that the liability finding made against the defendants cannot be sustained and that the action should now be remitted to the High Court for a retrial on the issue of liability only.
42. For the reasons already stated I am also satisfied that the award of general damages made by the High Court judge was grossly excessive to the point that it constitutes an error of law and must be set aside. I would propose that the award made in the High Court be replaced by an award of €25,000 which I would apportion as to €15,000 in respect of pain and suffering to date and €10,000 in respect of pain and suffering into the future.
Gardiner v Zinc Processors Ltd t/a Shannonside Galvanising
[2017] IEHC 230
JUDGMENT of Mr. Justice Barr delivered on the 7th day of April, 2017
Introduction
1. At the time of this accident, the plaintiff was employed by the defendant as a supervisor in the galvanising section of the defendant’s plant. On 9th August, 2012 the plaintiff suffered serious injuries as a result of being hit by a load of metal items, which fell from a height and struck the plaintiff on the chest and shoulders. Liability for the accident is not in issue in the proceedings.
2. The defendant accepts that the plaintiff suffered multiple serious injuries as a result of the accident. There is not a great deal of controversy between the parties in relation to the physical and psychiatric injuries suffered by the plaintiff. The main areas of dispute are in relation to the following issues:
“(a) When the plaintiff had returned to work with the defendant in August 2013 doing non-physical work in the area of quality control, whether his decision to cease work in February 2015, was as a result of any physical or psychiatric injuries sustained in the accident.
(b) Whether, having regard to the plaintiff’s recovery to date and in particular, having regard to his most recent examinations by various specialists, he needed in the past, or will need in the future, the level of care as advised by the plaintiff’s nursing expert.
(c) Depending upon the courts findings on both of these issues, what financial losses or expenses have been incurred to date and will be incurred by the plaintiff into the future.”
The Accident
3. On 9th August, 2012, the plaintiff was employed as a supervisor in the galvanising section of the defendant’s plant at Dronbanna, Co. Limerick. The plant is divided into three main areas: the “Black Yard”, which is where steel items are brought into the plant. The “Zinc Bath Area”, which is a very large bath full of molten zinc, above which is a gantry crane and from this hang steel items which are to be galvanised. The third area is known as the “White Yard” and it is there that the finished product is brought to dry and await onward transmission to the customer. On the day of the accident, the plaintiff was working in the zinc bath area. A load containing a number of large and heavy metal items was suspended above the zinc bath. Due to some fault in the apparatus, one of the hooks from which the load was hanging gave way, causing the load to swing downwards in a pendulum movement, with the load being suspended by only one hook. The plaintiff was struck forcibly on the chest and upper body by the swinging load. The load pinned him against a railing. He managed to crawl out from beneath the load to a place of safety.
4. As a result of the accident, the plaintiff suffered the following injuries: fractures of eight ribs on the left side, fractures of five ribs on the right side. Fractures at T2, T3 and T4, right and left pneumothoraces, a fracture of the left scapula, damage in the form of widening of the right acromial acromioclavicular joint, a left haemothorax and a tear of the supraspinatus tendon in the right shoulder.
5. The plaintiff stated that immediately after the impact, he could hardly breathe. He was in severe pain. He stated that he thought that he was going to die. He told a colleague, who had come to his assistance, that he did not think that he would make it. An ambulance was called and the plaintiff was transferred to the emergency department of the Midwestern Regional Hospital, Limerick, where he came under the care of Dr. Gareth Quinn.
6. The plaintiff was detained in hospital for ten days. A drain was inserted into the left side of his chest. No surgery was advised and the injuries were treated conservatively. On discharge, he returned home, where he was cared for by his wife, who had taken time off from her job, as a canteen supervisor, to care for him.
7. During this initial period, the plaintiff was grossly disabled. He required help with virtually all activities of daily living including, dressing, showering and going to the toilet. It was necessary for a commode to be provided upstairs, as the toilet in the house was located downstairs. He had great difficulty going up and down stairs. He required his meals to be prepared for him. He had great difficulty sleeping, as he could not find a comfortable position when in bed. He required pillows to prop him up. His wife slept in the spare room during this period.
8. The plaintiff experienced constant severe pain in his ribs, shoulders, upper back and neck, during this period. He required extensive painkilling medication on a daily basis. On discharge from hospital he had been given two “bombs” for pain as needed, as well as medication every four hours. After the first week, he returned to hospital, where he was given more medication and another “bomb”, which was a device which enabled him to self-administer painkillers as required. The medication included Arcoxia for pain, sleeping tablets and also Tramadol for pain.
9. While in the hospital, the plaintiff’s wife took a number of photographs, which revealed extensive bruising to the entire front and back of the plaintiff’s upper body. In the months following his discharge from hospital, the plaintiff gradually began to mobilise. Initially, he was able for short walks to the park, which was approximately 0.5km from his house. In the beginning, his wife accompanied him on these walks. He would rest when he reached the park and when he returned home, he would have a cup of tea and rest further. Due to his injuries, the plaintiff has considerable difficulty breathing, which was particularly evident at night and prevented him from sleeping.
10. In the first six months after the accident, the plaintiff experienced panic attacks and flashbacks to the accident. The first panic attack occurred when he was weaning off the painkilling medication. He experienced a sensation where he could feel the steel hitting him on the back and he thought that he would not be able to get out from under it this time. A psychiatrist prescribed anziolitic medication called Effexor, 75mg daily. However, this made him extremely irritable. His psychiatrist told him to stop taking the medication. He was given a milder form of medication, which he found helpful. He found that loud noises would startle him and would remind him of the sound of the hook breaking and the sound of the load swinging down just before it hit him. The plaintiff’s wife initially took two weeks from work to look after him and then she took a period of three months from work to care for him.
11. By Christmas 2012, the plaintiff stated that he had made considerable improvement. However, he continued to experience constant and at times severe pain in his neck, chest, shoulders and upper back. During this period, he had lost 1.5 stone in weight. While he had improved physically, he was still not able to socialise. He had lost all of his self-confidence and was not able to go out and meet people. He became very depressed at the level of his disability and in particular, by his inability to return to work.
12. In August 2013, the plaintiff returned to work in a new position which the company had created for him. This involved checking the finished metal items in the White Yard. Using a handheld monitor, he was able to ascertain the thickness of the coating of zinc at various points on the finished product. He then entered the results into a computer and generated a report which would be provided to the customer.
13. All the medical witnesses were in agreement that the plaintiff had showed considerable determination in getting back to work after such serious injuries. In a medical report dated 8th May, 2014, the defendant’s orthopaedic surgeon, Mr. Michael Maloney, stated as follows in relation to the plaintiff’s return to work:
“I admire Mr. Gardiner’s determination to return to employment and the firm for finding a place for him with his incapacity. I cannot see him returning to his pre-accident employment”.
14. Two things of significance happened in November 2013. Firstly, Professor Masterson referred the plaintiff on to Mr. O’Farrell, in relation to continuing pain in his right shoulder. This doctor admitted the plaintiff to Croome Hospital as a day case, where he had an injection to the shoulder and possible manipulation of the shoulder joint. He also had physiotherapy treatment at this time. The injection to the shoulder caused an improvement in his symptoms for a period of approximately six months. However, the pain in his right shoulder returned after that time.
15. Secondly, in November 2013, the plaintiff hurt his shoulder, when assisting a colleague lift a gate at the factory. The managing director of the company, Mr. O’Brien, was not pleased that the plaintiff had been doing any manual handling work. He banned the plaintiff from working in the Black Yard. He stated that he told the plaintiff: “You are to work from the head up. Not head down”, meaning that he was to act solely in an advisory capacity, and not in a manual role. The significance of this event is that it showed that the plaintiff was willing to try reasonably heavy work to assist a colleague, even though he was not meant to do such work. The plaintiff stated that he was somewhat unhappy doing his administrative role. He missed his work colleagues on the factory floor. He thought that they may have resented him for doing light work. He said that they occasionally slagged him that he had a “handy number”. As a result, he stopped going for lunch in the canteen. He also felt that the defendant company had “created” the job for him. He felt that the quality control reports which he generated, where simply put on the shelf and ignored by the company.
16. The plaintiff also missed time from work due to respiratory complaints and numerous chest infections.
17. The plaintiff worked with the company from August 2013 until February 2015. During this time, he continued to require painkilling medication. However, he could only take this medication when he arrived at work, as it made him drowsy and affected his driving. He was seen by Mr. Gilmore, consultant orthopaedic surgeon on 25th March, 2014, at which stage he complained of pain in the left shoulder and a lot of numbness in the left side of his neck and left arm. He had a decreased range of motion in the right shoulder, with crepitus on rotation of the shoulder. He had a feeling of the left scapular area being twisted. He was on painkilling medication and was also on inhalers in respect of his breathing difficulties. Examination showed a significant decrease in the range of motion of his cervical spine, being less than 50% of the expected range. He was tender in the left trapezius and also at the right acromioclavicular joint, which was dislocated and there was crepitus on moving the shoulder. There was a decreased range of motion in the right shoulder and he had decreased sensation in the left C5 dermatome and also in the left little finger. His ribs showed him to be tender in the left posterior and lateral aspect.
18. Chest x-rays taken on 9th August, 2012, showed significant pneumothoraces bilaterally. A further x-ray showed a left sided chest strain in situ. A further x-ray on 11th August, 2012, showed that there had been some improvement in the pneumothoraces but the right side remained considerably collapsed. An x-ray taken on 16th August, 2012, showed similar changes with incomplete re-inflation of the lungs. An x-ray of the right shoulder taken on 7th November, 2012, showed dislocation of the acromioclavicular joint. A further x-ray on 11th January, 2013, showed the A.C. joint dislocation. An x-ray of the left shoulder was not clear and it was not possible for Mr. Gilmore to state categorically whether there had been any fracture of the scapula. An M.R.I. scan of the right shoulder on 21st February, 2013, showed significant disruption of the A.C. joint and pressure due to oedema on the supraspinatus tendon, which also showed a partial tear on the articular surface.
19. Mr. Gilmore noted that the plaintiff had sustained significant injuries to his chest and shoulders, particularly his right shoulder in the accident in August 2012. He continued to be quite disabled in relation to the shoulder. This shoulder had been injected by Mr. O’Farrell. Mr. Gilmore did not know whether the plaintiff had been followed up by Mr. O’Farrell, but if not, he suggested that the plaintiff should be reviewed by him with a view to considering arthroscopic assessment of the right shoulder and possibly carrying out debridement and acromioplasty and rotator cuff repair.
20. The plaintiff was reviewed by Mr. James Colville, Consultant Orthopaedic Surgeon, on 7th January, 2015. At that time, he complained that his left shoulder continued to give him trouble. He had a cramping feeling underneath the left shoulder blade. He took tablets every day for pain. He also took tablets to help him sleep at night. He had difficulty lying on his left side. He had not been able to return to any sort of fishing because the movement of his shoulder was painful. He had lost some movement in the left shoulder and he could not lift anything heavy. He had had an injection to the shoulder in Coombe Hospital and this had provided temporary relief from pain. As far as the right shoulder was concerned, the plaintiff described a noise in his shoulder, but the movement was good. He experienced pain going up into his neck on the right side and there was a click in his neck. This occurred when he moved his head from side to side, or turned it. He stated there was local pain and tenderness on the outer aspect of the right shoulder and he pointed to his A.C. joint.
21. On examination, Mr. Colville noted that the plaintiff looked in good general health. Examination of the cervical spine revealed a limitation of movement of no better than 50% in all directions. He complained of pain at the extreme of the range of movement. There was no significant muscle spasm present and there was no neurological deficit in either upper limb. Examination of the left shoulder revealed a good range of movement. It was restricted by ten degrees in forward flexion and abduction. All other movements were within normal limits. There was no muscle wasting. The rotator cuff was within normal limits. The plaintiff complained of discomfort going through a painful arc of movement in forward flexion of about 30 degrees, between 60-90 degrees. The plaintiff also complained of pain up into the cervical spine on moving the left shoulder. Examination of the rights shoulder revealed it to be within normal limits, with the exception of local tenderness on palpating the A.C. joint.
22. Mr. Colville noted that the plaintiff had been involved in a very serious accident. It would have been considered life threatening at the time, but the plaintiff had done well with appropriate treatment. The plaintiff had residual symptoms which he thought were not surprising given the nature and severity of the injury.
23. In an addendum to his report dated 22nd April, 2015, Mr. Colville dealt with the findings on the M.R.I. scans. The M.R.I. scan of the neck showed degenerative changes at multiple levels with nerve root compression bilaterally and at more than one level. The scan of the right shoulder was carried out on 21st February, 2013, It showed evidence of an injury to the A.C. joint. A further scan of the right shoulder was carried out on 28th February, 2015, and again showed arthritic change in the A.C. joint and evidence of an injury to the clavicular end of the A.C. joint. Mr. Colville noted that based on this information, it was not surprising that the plaintiff had ongoing symptoms relating to his cervical spine, with referred pain to the shoulder blades. This would also account for the pain on certain movements of his cervical spine and lack of movement therein. As far as his shoulders were concerned, he recommended that the plaintiff should have an A.C. joint x-ray guided injection on the right side. He hoped that that would resolve the problem in due course. He also recommended that the plaintiff should have an x-ray guided injection of the left subacromial space. In the longer term, he anticipated that the residual symptoms in his cervical spine were likely to persist, but these were not entirely due to his accident. In a further addendum dated 14th August, 2015, he had the benefit of an x-ray report on the plaintiff’s left shoulder, which had been carried out on 27th July, 2015. It showed degenerative change in the left A.C. joint. It was reported that there was a loose body in the right A.C. joint, there were also degenerative changes present.
24. The emergence of psychiatric injuries were noted in the examination carried out by the plaintiff’s G.P. on 15th January, 2015. Dr. Gavin noted that over the previous year, the plaintiff had noticed increased problems with anxiety and depressive symptoms. He had returned to work in August 2013, which he felt was a positive step. Despite this, the plaintiff had been disappointed with his inability to take on the kind of work that he had done prior to the accident. The ongoing nature of his pain and its chronic nature had had an adverse effect on him. The sleep disturbance in particular was adding to his irritability and anxiety. Dr. Gavin was of opinion that as the period of his injury had moved from months into years, the chronic pain in the plaintiff’s chest wall and shoulder, had started to wear him down. He had come to realise that a full recovery was probably not possible. The respiratory problems had shaken his self confidence. The plaintiff had become anxious, irritable and mildly depressed.
25. The plaintiff had reported decreased taste and smell since the accident, but this had resolved over time. His eyesight problems were also no longer an ongoing issue in 2015. Dr. Gavin was of opinion that the plaintiff had done very well, but would not recover completely from an accident of that severity. His physical situation had worsened over the last year. Following from this, his psychological wellbeing had been considerably damaged.
26. On 16th February, 2015, the plaintiff was reviewed by Mr. Gilmore. The plaintiff was disappointed because of his lack of progress since the accident. He continued to have a lot of pain in the left shoulder and also in the left arm and in his neck. The plaintiff complained that he had a feeling of a bone protruding from the right shoulder. This was the prominence at the dislocated right A.C. joint. He had inquired about surgery for this, but had been advised that it was not recommended. Mr. Gilmore noted that the plaintiff had been off work for the previous two weeks, because he simply could not manage, as he seemed to have tightened up in the cold weather. He told Mr. Gilmore that he hoped to be back at work the following week.
27. Examination of the neck showed a 60% range of motion with pain on pushing it beyond that level. He was tender in the left trapezius and also in the left intrascapular area. He had prominence in the right A.C. joint and pain and crepitations at this level on moving the joint. He had a positive impingement test in both shoulders, right and left. He seemed to have decreased sensation in the left little finger and also in the medial aspect of his left elbow.
28. Mr. Gilmore noted that an M.R.I. scan of neck showed that there was loss of normal lordosis and evidence of quite significant degenerative change at C3/4, 4/5 and 5/6, with some disc osteophyte bulging abutting, but not significantly compressing the spinal cord at any level. However, there was quite significant left sided foraminal encroachment at the C5/6 level particularly and at the C4/5 level there was foraminal encroachment on the right side. The M.R.I. scan of the right shoulder showed evidence of diffuse thickening in the subacominal bursa and an 8mm defect in the supraspinatus tendon, but with no retraction of the tendon. The A.C. joint was again very abnormal, but the acute changes noted at this level in the scan from 2013 had subsided. The M.R.I. scan of the left shoulder showed similar changes at the A.C. joint, but no evidence of any rotator cuff damage.
29. Mr. Gilmore noted that the plaintiff continued to have ongoing difficulties with his neck and both shoulders as a result of the injuries sustained in the accident. Clinical examination of the neck showed him to have restriction in the range of movement, which was to be expected given the changes noted on the M.R.I. scan, these changes he felt had not been caused by the accident, but may well have been aggravated by it. The plaintiff continued to have ongoing difficulties with his right shoulder at the A.C. joint and the dislocation in the joint had not changed, but the acute nature of it had subsided somewhat since the original scan in 2013. The plaintiff continued to have positive impingement testing in both shoulders. Mr. Gilmore was of the opinion that only time would tell whether any further treatment would be required to the shoulders, particularly on the right side, perhaps in the form of arthroscopic debridement and rotator cuff repair. Given that it was then two and a half years post accident, he felt that the likelihood was that the plaintiff would continue to have ongoing difficulty and would probably require further treatment for the right shoulder particularly, in order to help alleviate his symptoms.
30. The plaintiff was first seen by Dr. Catherine Corby, Consultant Psychiatrist, on 27th February, 2014. The plaintiff told her that his life had changed immeasurably since the accident. Due to pain in his shoulders and breathing difficulties, his exercise tolerance was limited. In particular, he had had to give up fishing since the accident, which had been his passion. He also stated that his mood had been low and that he was frequently irritable and angry. He had also lost a lot of self confidence. He complained of flashbacks to the sound of the crane hitting the steel. He had returned to work in August 2013 and stated that he found sounds in the workplace to be upsetting. Although not doing his pre-accident job, he was still regularly exposed to the area where the accident had occurred. He had experienced nightmares at the initial stages after the accident, but these were no longer a problem. He complained that his mood was low and the biggest change he noticed was that he lacked enjoyment of life. He had stopped socialising to the extent that he had done prior to the accident. His relationship with his wife had changed since the accident both physically and emotionally. Due to his physical and psychiatric injuries, he no longer had a sexual relationship with his wife.
31. Dr. Corby noted that the plaintiff continued to experience severe pain from his physical injuries, which restricted him in a number of everyday activities and also meant that he could not pursue his hobby of fishing. He required daily pain relieving medication. She noted that he no longer had a sexual relationship with his wife.
32. She noted that the plaintiff had suffered psychologically since the accident complaining of nightmares initially and he continued to experience day time flashbacks to the accident. These were triggered by loud noises, particularly at his workplace. She was of the opinion that he met the criteria for Post Traumatic Stress Disorder.
33. The plaintiff also suffered from depression since the accident. He worried about his future health and had a lack of enjoyment in life. He was apathetic and irritable and also felt angry. She felt that he would benefit from the introduction of antidepressant medication. His prognosis was guarded.
34. The plaintiff was reviewed by Dr. Corby on 29th January, 2015. The plaintiff told her that he had been prescribed antidepressant medication by his G.P. However, he only took this medication for one month, as he was not able to tolerate it and it had made him feel worse. He continued to work in an administrative role, which he felt was of a lesser capacity than had been his role prior to the accident. Occasionally, he had feelings of inadequacy. He told her that he was aware of danger in the workplace. When the crane moved, he could hear it first, before he saw it and his anxiety would increase at that time. He was aware that one slip of the machine and it could be fatal for the individual beneath it. He told the doctor that he enjoyed his work overall, but he missed the hands on role that he previously had. He also believed that the other workers may resent him for having an easier job.
35. He continued to experience day time flashbacks, particularly at work. If he heard a loud bang at work, he would startle and would be frightened. At night, he experienced reliving experiences once or twice a week. He worried excessively about problems in the workplace. He felt on edge a lot of the time. He described panic symptoms and he had attended his G.P. in relation to these. He also experienced shortness of breath in bed, as well as an increased heart rate and palpitations. He described his mood as low and could get irritable with people. He continued to take painkillers on a daily basis. He would take six Tylex per day and was also on sleeping tablets.
36. Dr. Corby noted that the plaintiff had not resumed a physical relationship with his wife since the accident. He believed that the pain in his shoulder would be too severe to engage in sexual activity and also his libido had been reduced since the accident. He continued to suffer psychologically. He presented with current depressive symptoms, with low mood, tearfulness, irritability and reduced interest and enjoyment. She thought that he would benefit from the introduction of antidepressant medication. She noted that he continued to struggle with Post Traumatic Stress Disorder. He experienced flashbacks in the workplace whenever he heard a loud noise. He also experienced nightmares about the accident. He was hyperaroused and hypervigilent in the workplace. Her prognosis for the plaintiff’s future was guarded. However, she expected some improvement over time and particularly if he was prescribed an antidepressant medication that he could tolerate.
37. In February 2015, the plaintiff ceased work. He stated that he did this, because he found the demands of the work psychologically as being too difficult for him. He described how he was hypervigilent and was on edge all the time at work. Indeed, he was sometimes on edge from early in the morning as he prepared to go to work. He described how on one occasion, he drove up to the gates of the plant but could not physically force himself to drive through the gates. It was then that he made the decision that he would have to give up work completely.
38. In the course of cross examination, it was put to Dr. Corby that when she had seen the plaintiff on 29th January, 2015, some weeks prior to his ceasing work, that he had not mentioned to her that he intended to stop working. She stated that he had been unhappy in his job after the accident. He was struggling to cope with the demands of the work and in particular his presence in the area where the accident had happened. In addition, she noted that the plaintiff had witnessed two further accidents in the workplace, where a piece of metal had fallen onto an operative’s foot, causing a crush injury to the foot and on another occasion, an employee had fallen from a teleporter. Both these incidents had a marked effect on the plaintiff’s psychiatric state.
39. In cross examination, Dr. Corby was asked whether she had recommended that the plaintiff should leave work. She stated that she would not recommend a person should leave work, unless it was causing them significant distress. The plaintiff had tried his best to do the new job which had been made available for him. Unless there had been a major issue, she would not recommend that he should leave work. However, in this case, the plaintiff was not happy. He was turning up for work, but he was distressed. He was being re-traumatised, which was causing him to experience symptoms of P.T.S.D. and heightened anxiety.
40. She accepted that when she had seen the plaintiff in January 2015, he had not told her that he intended to leave work. He was having a lot of physical anxiety symptoms at that time and was struggling at work. He had always enjoyed being in the workplace prior to the accident. He had returned to work quickly after previous accidents. Work was a big part of his life. It was put to the witness that none of the plaintiff’s doctors had advised him to give up work. She accepted that that was the case.
41. In his evidence, the plaintiff stated that he had had to give up work in February 2015, because he found the stress of working there too much. He was obliged to take pain relieving medication, but could only do so on his arrival at work, as the medication made him drowsy and he could not drive. When the medication wore off during the day, he would experience severe pain. He stated that he was exhausted at the end of the day and would go home, have his dinner and go straight to bed.
42. He stated that he also experienced considerable psychiatric difficulty with work. He stated that witnessing the two accidents had had a great effect on him. He became very frightened of being in the workplace. However, he accepted in cross examination that he had not told Dr. Corby, when he saw her in January 2015, that he intended to leave work the following month. He accepted that no doctor had specifically advised him to cease work. He accepted that when he had seen Mr. Gilmore on 16th February, 2015, he had not told him of his intention to leave work, but had told him that he hoped to be back in work the following week.
43. The plaintiff also accepted in cross examination, that the physical demands of his work were not that great. The sick certificates which he had submitted after February 2015, referred to shoulder, neck and back pain, but made no reference to any psychiatric problems. The plaintiff stated that he had had psychiatric problems at work for a number of months prior to February 2015. However, he accepted that he had not brought this to the attention of Mr. O’Brien and had not sought any time off from work. The plaintiff stated that he ceased work due to physical and psychiatric problems, although he did not admit the psychiatric problems to his employers. He accepted that he did not tell Dr. Quinn in July 2015, that he had stopped working. He accepted that Ms. Shanahan, the Chartered Physiotherapist who carried out the Functional Capacity Evaluation, had found that he was fit for light/medium physical demand work. He accepted that the quality control work which he did was light work.
44. The plaintiff stated that part of his distress was due to the fact that he thought that his work colleagues thought less of him, because he was doing administrative work. He said that when he ceased work, he missed the work and missed being with his colleagues. However, his mental health had improved. He was not as irritable and was less anxious. He was asked whether he had ever considered going back to work. He stated that he had considered that possibility, but he was too afraid to go back to work because he feared being involved in another accident and might possibly be killed. He accepted that he had not contacted Mr. O’Brien about any possible return to work.
45. The plaintiff also accepted that he had not done any training to do any other work, nor had he looked for any alternative light work. It was put to the plaintiff that he had told Dr. Corby that he felt that he had a meaningless job, that his reports were being ignored and he felt that his work colleagues resented his doing light work. The plaintiff stated that that was what he told his psychiatrist. He felt that his reports were being ignored. None of his work colleagues complained about his work but they said “you have a handy number”. He said that he was obliged in the course of testing the product to go out in all types of weather. He stated that he got a lot of chest infections. It was put to the witness that he had told Dr. Corby that he had ceased work, because he felt undervalued and felt resented; there was no mention of stress, fear avoidance, or psychiatric difficulties. The plaintiff said that there were a number of different reasons why he left work in February 2015.
46. Ms. Geraldine Gardner, the plaintiff’s wife, stated that he had had to cease work in February 2015 due to the fact that he would panic once he got to the gate to the yard. This was after he had witnessed the two accidents at work. He was not afraid of work, but was terrified of working in the defendant’s yard. She stated that he seemed more relaxed and at ease after February 2015.
47. Mr. Dermot O’Brien, was the manager of the galvanising plant at the time of the accident. He stated that he got on very well with the plaintiff. He stated that he relied heavily on the plaintiff’s knowledge of galvanising. He stated that the plaintiff was a very good worker.
48. After the plaintiff suffered the shoulder injury in November 2013, while assisting a colleague to lift a gate, he had told the plaintiff not to do any work in the Black Yard. He was to confine himself to quality control inspections of the finished product and produce reports thereon. He denied that the job was “made up” for the plaintiff, or that it did not serve any useful purpose. He said that the quality control reports were a feature that was unique to their company and was appreciated by their customers. It gave the company an edge over their competitors. Since the plaintiff had ceased working with the company, they had hired another man to fulfil that role. He stated that the plaintiff’s job was still open for him, if he wished to take it up and they would redeploy the other man elsewhere in the plant.
Conclusions on the Plaintiff’s Cessation of Work in February 2015
49. It is clear from a consideration of the evidence, that there were a number of reasons as to why the plaintiff gave up work in February 2015. While the work itself was not physically demanding, the plaintiff continued to have psychical symptoms in his neck and shoulders. He continued to need painkilling medication on a daily basis. However, he could not take this before he left home, as it made him drowsy and affected his driving. He stated that he would experience severe pain when the medication wore off during the day. A secondary reason was the fact that the plaintiff did not particularly like being restricted to light work. He felt that his former colleagues resented the fact that he was doing a “handy number” and did not have to do any heavy work. He stopped going to the canteen due to a perceived resentment on the part of his fellow workers. The third and probably the most significant factor leading to his ceasing employment, was the psychiatric difficulties, which he was suffering. He stated that he found it very difficult to continue working at the plant, particularly after he witnessed accidents to two fellow employees. He stated that he would be in a state of anxiety for some time before actually arriving at work. During work, he would have flashbacks if he heard loud noises, or had to work near the scene of the accident. He became very frightened for his own safety while at the plant. His evidence of heightened anxiety and irritability was supported by the evidence of his wife.
50. There are a number of facts which support the proposition that the plaintiff had a strong work ethic. He had a strong pre-accident work history. He had worked continuously since the age of thirteen years. He had demonstrated a strong desire to work. In particular, he had had six previous accidents while working with the defendant company. None of these had resulted in any claim being made by him. He always returned to work within a short period. After this accident, where he had suffered multiple serious injuries, he had returned to work after approximately one year. This showed a determination on his part to get better and to get back to work. It was commented upon favourably by the defendant’s medical experts.
51. The plaintiff’s evidence in relation to his psychiatric symptoms being aggravated by being present in the defendant’s plant, was supported by the evidence of Dr. Corby. She was also of opinion that his psychiatric symptoms had ameliorated considerably since he gave up work.
52. Taking all of these matters into account, the court reaches the following conclusions: the plaintiff was fit for light/medium physical demand work. This was supported by the medical evidence and by the evidence of Ms. Shanahan. The work which the plaintiff was given after the accident in the area of quality control was light work. The plaintiff has satisfied the court that he was well motivated to get better and to return to work. It is to his credit that he did so approximately one year after the accident, when many other plaintiffs would not have done so. I accept the evidence of the plaintiff, which was supported by the evidence of his wife, that it was primarily due to his psychiatric difficulties that he had to cease working at the defendant’s plant in February 2015. I am satisfied that a combination of the loud noises at the factory, the witnessing of two accidents to fellow employees and the closeness to the scene of the accident, all combined to cause the plaintiff to suffer intense anxiety symptoms and symptoms of P.T.S.D. while at the plant. In these circumstances, I am satisfied that the plaintiff acted reasonably in deciding to give up work in February 2015. I am satisfied that his inability to work after that date, was due to the psychiatric injury suffered by him as a result of the accident.
53. In February 2015, the plaintiff was 57 years of age. Having regard to the fact that he has very little educational qualifications, I find that he is unlikely to be taken on by an employer when he can only do light work. I accept the evidence as contained in Ms. Elva Breen’s report that in reality, the plaintiff is not likely to secure light work on the open market. Given his age, lack of educational qualifications and his physical limitations, I find that on the balance of probabilities, he is not likely to work again prior to reaching normal retirement age. In these circumstances, the plaintiff is entitled to damages in respect of his loss of earnings to date and for his loss of earnings into the future until age 67, which will be dealt with later in the judgment.
The Plaintiff’s Progress 2015- 2017
54. On 28th July, 2015, the plaintiff was referred by his solicitor to Dr. Brendan Conroy, Consultant Anaesthetist and Pain Management Specialist. He noted that much of the plaintiff’s pain was between the shoulder blades in his back, in the lower part of his neck and he also felt a sensation going up into his head of pain (almost describing headaches) which he found very worrisome. He also complained of shoulder pain, which had been bad on the right hand side.
55. Dr. Conroy noted that the plaintiff had a very supportive wife, but the relationship between the plaintiff and his wife had been strained because of both financial and intimacy problems, which he felt was very understandable. He noted that the plaintiff had previously been a very healthy man, who enjoyed his work and was very motivated. On examination, he found the plaintiff very stressed and had poor eye contact. It came across that he felt guilty all the time. On examination, he had a slight decrease in the range of motion of the neck and was tender around C6/7 and C7/T1 facets. He was tender at the medial aspect of his scapula, in the area of the costotransverse ligaments around T4 going down (it could be facet as well). He also had pain in his right shoulder and he had tenderness in the A.C. joint.
56. Dr. Conroy discussed the option of giving the plaintiff some cervical facet injections, costotransverse ligament/thoracic facet injections and also suprascapular nerve pulsed R/F lesioning.
57. In subsequent correspondence dated 10th November, 2015, Dr. Conroy set out the costs of this treatment and the duration of any benefits from the treatment. With cervical denervation, you would expect to get three to eighteen months. From pulsed R/F lesioning of the suprascapular nerve in the shoulder area, just a couple of months.
58. In May 2016, the plaintiff was admitted to St. John’s Hospital in Limerick where he had bilateral C6/7, C7/T1 cervical facets, left costochondral injections and also right suprascapular nerve pulsed R/F lesioning. Following that treatment, he was able to wean off some of his medication. The plaintiff was very happy with the results of that treatment. He was reviewed on 13th September, 2016, when he stated that he had got as far as the beginning of September, when the pain started to come back. Essentially, he got about three months of relief from the treatment.
59. Dr. Conroy discussed the treatment and the potential benefits of suprascapular nerve pulsed R/F lesioning. That was something that they could do going into the future. That treatment could be repeated every two to three months to get some prolonged relief, which would allow the plaintiff to have some physiotherapy treatment. Dr. Conroy stated that it would not alter the fact that he had A.C. joint type degeneration in that area. He hoped that the supraspinatus tear, as diagnosed by Dr. Stafford, would slowly resolve. In summary, the situation at that time was that there had been some benefit with injection treatment. He thought that two to three months relief was a good result. He noted that Mr. Colville felt that the plaintiff had an A.C. joint problem. Dr. Conroy stated that he could keep on doing suprascapular nerve injections to give the plaintiff relief going into the future, without any significant trauma to the shoulder itself and that was something that he was more than happy to offer, but he would not be able to fix the A.C. joint as such. That was something that would need to be repeated on a regular basis into the future.
60. On 8th December, 2016, the plaintiff was brought back into St. John’s Hospital where a right suprascapular nerve pulsed R/F lesioning was carried out. He explained that this was a procedure that was done to knock out one nerve which supplies a significant proportion of the shoulder. Some estimates around 90% of the shoulder joint. It was very useful for pain, where there was difficulty in treating it in any other way. Patients, for example, who are not tolerant of surgery, or who had surgery and still had residual pain. It was not a perfect solution, but it was useful. He stated that they administered this treatment to the plaintiff and he got very good stimulation at a low voltage, implying that they were near the nerve, that was where they did the lesioning. He stated that if they were lucky, this procedure could give people improvement in their pain. It was not a cure, but it would give improvement in the person’s pain for anywhere up to two and three months. It needs to be repeated on an ongoing basis, if the patient got a favourable result. He stated that at that time it was too early to see how long the plaintiff would get as a result of the procedure, but hopefully it would be an option they would have going into the future.
61. The plaintiff was reviewed by Mr. Gilmore on 8th September, 2015, just over three years since the accident. He complained of pain in the left interscapular area and was very uncomfortable there. He also complained of pain in the right shoulder. The left shoulder felt alright except for the pain felt in the interscapular area. He told the doctor that he had not been able to work since February 2015. Examination of the neck revealed that the range of movement was as before, with a 60% range of motion with pain on pushing it beyond that. He was again tender in the right and left trapezius and also tender in the left interscapular area. There was a clicking sensation on moving the neck. There was also a prominence and clicking at the right A.C. joint. There was variable alteration of sensation in the left little finger and to a lesser extent in the left ring finger. Mr. Gilmore was of opinion that he continued to have ongoing difficulties with his cervical spine and with his shoulder, which was then over three years post accident. He felt that the plaintiff would benefit from the injections into the A.C. joint which Mr. Colville had advised.
62. The plaintiff was reviewed by Mr. Gilmore on 31st March, 2016. Since his previous examination, he had had about five sessions of physiotherapy which was ongoing. He continued to require painkilling medication. However, he took Arcoxia as required, but tried to avoid taking this medication as it made him feel sick. He also took paracetamol occasionally. He was doing a home exercise programme.
63. He again complained that he had difficulty with the right and left shoulders and his neck. If anything, he felt that these areas were getting worse. He also experienced pain in the left subscapular area. Examination of the neck showed a 50% range of motion, with a lot of pain. He was tender in the A.C. joint on the right more than the left. He had restricted range of movements of the upper limbs, leading to pain in the left interscapular and scapular areas. He also complained that he had altered sensation in the left distal forearm and ulnar border of his little finger. Rotation of the thorocolumbar spine was poor. Forward flexion was to mid shin. Lateral flexion and extension were very poor. Straight leg raising, however, was normal bilaterally and there was no obvious neurological deficit in either lower limbs.
64. Subsequent to the examination, Mr. Gilmore had sight of the M.R.I. scans taken on 22nd April, 2016. These confirmed numerous fractures of the ribs posteriorly on the left side. There were also significant changes in the thoracic spine with both degenerative changes and modic changes in the end plates at T7, 8 and 9 with disc bulges at T6/7, T7/8, T8/9, T9/10 and T11/12, all of which seemed to give rise to some indentation at least of the thecal sac, if not of the spinal cord itself. However, there were no obvious changes of any significance in the spinal cord.
65. M.R.I. scan of the cervical spine dated 11th May, 2016, showed that there were degenerative changes throughout the cervical spine, with disc bulges at the C3/4, 4/5, 5/6 levels, which did indent both the thecal sac and the spinal cord. In the lumbar spine, there were degenerative changes throughout, with modic changes in the vertebral bodies also, indicating that these were of long standing, with significant narrowing of the L3/4 level, to a lesser extent the L4/5 level, and also of the L2/3 and L1/2 levels. At all of these levels, there was a moderate amount of disc bulging, which gave rise to some compression of the spinal canal and narrowing, but no definite nerve root compression.
66. Mr. Gilmore was of opinion that the plaintiff continued to have significant ongoing difficulties as a result of the injuries sustained in the accident in August 2012. He stated that not all of the degenerative changes had been totally caused by the accident, but they had certainly been aggravated and rendered symptomatic by it. At that stage, he felt that the plaintiff probably warranted assessment by a spinal surgeon to ensure that no further treatment might be indicated. Given the fact that it was then almost four years since the accident, he felt that the likelihood was that the plaintiff would continue to have ongoing difficulties. Only time would tell what further treatment would be required and whether or not he would require any surgical intervention.
67. The plaintiff was reviewed by Mr. Gilmore on 4th October, 2016. The plaintiff continued to take Ixprim for his ongoing pain. He continued to be on inhalers, Singulair tablets and Serotide Discus for his asthma complaint. He also required sleeping tablets at night. In terms of his complaints, he stated that his situation was much the same as at the previous examination. He found that he was tightening up more around his shoulders and upper back. He was doing the home exercise programme three times a day and this would normally help to loosen him out. He was not able to work. Occasionally, he found he was very painful in the right A.C. joint.
68. Mr. Gilmore noted that since he had last seen the plaintiff, he had been treated by Dr. Brendan Conroy in St. John’s Hospital and had had three injections in May – into his right shoulder, the base of his spine and the interscapular area. The plaintiff stated that these had given him very good relief for about two months. He was due to be reviewed again in December 2016. Examination of the neck showed a 50% range of motion, except for rotation to the left which was 75%, but all movements were accompanied by pain. He was tender in the right and left interscapular areas. There was decreased sensation in the left distal forearm, thumb and ulnar aspect of hand and forearm. His A.C. joint continued to exhibit crepitations on movement and was slightly prominent but did not require surgery. In the thorocolumbar spine, rotation to the right was less than to the left. Forward flexion was to mid shin. Lateral flexion and extension, all caused pain. Straight leg raising was tight but negative bilaterally. There was no obvious neurological deficit in either lower limb.
69. Mr. Gilmore noted that the plaintiff continued to have ongoing difficulties with his neck and back and right shoulder area as a result of the injuries sustained in the accident. He continued under the care of his own G.P. and under the care of Dr. Brendan Conroy. He would probably require ongoing treatment with them, at least in the short to medium term. Mr. Gilmore did not anticipate that there would be any significant change for better or for worse in his ongoing level of symptoms. The plaintiff would have to do his best to learn to adapt his lifestyle in order to accommodate these symptoms and limitations. From the point of view of any possibility of return to work as a galvanised steel worker, he did not see this as a possibility certainly at that time and given the fact that he had not responded adequately to treatment so far over a four year period, he felt that it was probably unlikely that the plaintiff would be able to return to such activity in the future. In terms of a future prognosis, Mr. Gilmore stated in his evidence that the plaintiff would have ongoing difficulties in his neck, shoulders and back. He would have to be very careful what activities he did. He did not think that the plaintiff would be able to return to his sport of fly fishing.
70. In relation to his psychiatric symptoms, the plaintiff was reviewed by Dr. Corby on 24th May, 2016, some three years and nine months post-accident. In terms of his mood, the plaintiff described it as being not so bad. He had responded well to antidepressant medication prescribed in 2015. However, he became low at times in relation to his physical limitations. He worried about the future in terms of how his injuries would progress and how he would possibly develop arthritis. He had been setting realistic goals for himself in relation to the physical activities that he could do. He was realistic and understood that he would never get back to what he was in 2012, before the accident. He continued to report having flashbacks to the accident. He had a very heightened startle response, especially to loud noises. When he heard a loud noise, he would have a flashback to the metal jib coming at him from behind. Even when he heard loud noises out on the street e.g. workmen using a drill, this would cause him to fear that he was going to be hit from behind. He would relive the experience of the accident. He still had nightmares. Dr. Corby stated that his startle response and reliving experience, were responses to noise. He continued to require medication. He was on paracetamol three times daily. He also took singulair tablets and a seretid diskus inhaler. He took two tylex at night and also took stilnoc at night.
71. In her opinion, Dr. Corby noted that the plaintiff continued to suffer pain on a daily basis related to his injuries. He took painkillers on a daily basis for his symptoms. He had also had a number of injections under the care of a pain specialist. He was functionally limited because of his injuries and had to obey certain limits in relation to activities. He continued to engage in rehabilitation exercises.
72. She noted that the plaintiff had ongoing psychological difficulties related to the accident. He suffered flashbacks and nightmares, but these occurred less frequently than before. They had less intensity than at the beginning following the accident. He was avoidant of certain unpredictable noisy places. She stated that he did not meet the full criteria for Post Traumatic Stress Disorder, because of the frequency of his symptoms and their intensity being lesser than in the past, but he did have post traumatic symptomology following the accident. Even though he was no longer exposed to workplace noises and feeling of risk associated with them, he continued to react to other noises in the environment, with a heightened startle response and experienced reliving phenomena every few weeks.
73. Dr. Corby stated that the plaintiff had previously been depressed following the accident, especially in relation to the injuries he suffered and the ongoing pain syndrome. He was aware of his physical difficulties and was actively engaged in a rehabilitation programme. He did not currently meet the criteria for a depressive disorder. His prognosis in the longer term was guarded, given the ongoing physical difficulties, as well as his inability to continue working, which was a very important part of his life.
74. The plaintiff was reviewed by Dr. Corby on 9th January, 2017. He continued to suffer pain on a daily basis and required painkillers regularly. He had been administered pain relieving injections from a pain specialist. He was limited physically and had been unable to return his much loved hobby of fishing, because of the accident. She noted that after the accident he had developed depression and Post Traumatic Stress Disorder. Although he had returned to work in an administrative role, he had had a very traumatic experience in the workplace and ended up leaving work in February 2015. He had been on illness benefit for a period of time and was then put on an invalidity pension. He found it very difficulty to accept the title “invalidity pension” as he did not want to think of himself as an invalid.
75. The plaintiff stated that over the previous few months, his mood had been very depressed. He was on medication when he went back to work and he stated that on some days he could not remember driving into work. He was on various painkillers, as well as medication for his breathing. He stated that when he had returned to work, he had the expectation and the hope that he would return to doing everything that he had done before the accident. He had suffered previous accidents in the workplace and had returned within as short a period as possible. However, he suffered a further injury while lifting a gate in November, 2013. He said that the boss spoke to him and advised him that he would not be able to continue on in the yard. He was given an administrative role at that stage. He indicated that he found the administrative work difficult as it was office based. In addition, he also found it difficult working within 70 or 80m from the area where he had his accident. He stated that he had witnessed two accidents in the workplace and these events had upset him greatly. Each time he witnessed an accident in the workplace, he was re-traumatised. He experienced ongoing flashbacks and nightmares to his own accident. He continued to have a heightened startle response and when he heard a loud noise, he became very anxious and suddenly fearful. He stated that after one of the accidents to a young man, he became fearful and was very upset. He would relive the hopeless feeling of his own accident, when he was exposed to similar events. He came to believe that in the future someone would die in the defendant’s plant, because of all the accidents that had happened there.
76. The plaintiff indicated that his mood had improved since he was away from the workplace. While he had been at work, he had been hyperaroused and was aware of everything in the vicinity of where he was working in the plant. He stated that if he were to go back to the plant, it would bring the accident all back to him. When he was out of the workplace, he described how he did not think of the accident as much. He was experiencing reliving symptoms alternate nights every week. Since he left the workplace, he described how he had had flashbacks or nightmares once or twice a month. During the day, however, he startled easily, whenever he heard a loud noise. At night time if he heard a loud noise, he would sit up and he described himself as freezing on the spot. His wife had told him that he was in a sweat some nights. He stated that he had recently been required to visit the plant to attend a meeting with a health and safety officer and an engineer. The man had not turned up on time and the plaintiff was in the workplace longer than he had anticipated. He stated that he did not feel comfortable and had thoughts of escaping from the plant. He described how he had an ongoing low mood. He stated he would get stupid thoughts in his head sometimes and had a death wish. He was frequently tearful when certain reminders of the accident took place.
77. Dr. Corby was of opinion that the plaintiff continued to struggle with significant physical symptoms. He had physical limitations and was required to take pain relieving medication on a daily basis. Although he had been away from the workplace since February 2015, he continued to suffer ongoing Post Traumatic Stress Disorder, with a heightened startle response and relieving experiences to the trauma. When he had returned to the plant for an engineering inspection, he reported having an increased level of anxiety. Discussing his accident also increased the frequency and intensity of his reliving experiences.
78. Dr. Corby noted that the plaintiff continued to suffer from ongoing low mood and had become quite withdrawn from his wife in the recent past. He described an intermittent death wish. He was not currently on any antidepressant medication. She thought that it would be advisable for him to commence same. She stated that given that he was suffered from ongoing pain and ongoing depressive features, the reintroduction of an antidepressant was warranted. She had prescribed Duloxetine 30mg daily for one week increasing to 60mg daily thereafter for a trial period. She felt that his long term prognosis was guarded, given the chronicity of his pain symptoms and the life threatening nature of the accident he suffered, as well as the ongoing effects of the injuries. She did not anticipate that he would be able to return to the workplace given the severity of his ongoing psychological and psychiatric difficulties in relation to this traumatic event.
79. Dr. Corby noted that the defendant’s psychiatrist, Dr. Sinanan, had suggested that the plaintiff might benefit from cognitive behavioural therapy. This was recommended for his depression rather than the P.T.S.D. The plaintiff had been to Abbey Physiotherapy Clinic and they had given him a C.B.T. programme, so he had already had that therapy. She did not feel that further C.B.T. would be that beneficial. Dr. Sinanan had also recommended that he might have therapy in the form of Eye Movement Desensitisation and Reprocessing (E.M.D.R.) in relation to his P.T.S.D. complaint. Dr. Corby noted that this was a treatment developed in the U.S. for P.T.S.D., for people who had seen visual traumas. This treatment can be useful to reduce the intensity of frequency of flashbacks. However, the plaintiff’s reaction was caused by sounds rather than visual stimuli, so E.M.D.R. would not be that helpful for treating sound based flashbacks. She thought that the best strategy was to avoid places where there would be loud noises.
80. Due to breathing problems since the time of the accident, the plaintiff was seen by Prof. Jim Egan, Consultant Respiratory Physician in June 2016. Prof. Egan noted that he had no history of pre-accident breathing or chest difficulties. His lung function studies in 2014 were normal. Follow up lung function studies in 2016 showed a deterioration in lung function. These studies revealed that the plaintiff had constriction in lung function. The doctor noted that because of shortness of breath following the accident, the plaintiff had been put on Seretide inhaler and Singulair in 2013. Both of these agents were used for the treatment of asthma. The plaintiff complained of shortness of breath on exertion intermittently. He also complained of having panic attacks when he was sitting in a stuffy room where he experienced gasping and had to leave. He had episodes of being short of breath, where he could not breath properly. This occurred approximately two to three times a month. Associated with the shortness of breath, he was often light headed. He stated that he could become short of breath while watching television and had to leave the room. He also noticed that he was wheezy at night when trying to sleep. Since the accident, he had been susceptible to respiratory tract and chest infections, which were characterised by cough and phlegm production.
81. Prof. Egan was of opinion that the plaintiff had experienced significant mechanical trauma to his chest. Since then he had had symptoms consistent with (a) late onset asthma; and (b) hyperventilation syndrome. There was a direct relationship between his symptoms and the episode of trauma. The asthma had been precipitated in a dynamic fashion because of his chronic pain related to his accident. Normal lung function studies, did not preclude a diagnosis of asthma. His symptoms on some occasions were related to hyperventilation syndrome, which in turn was related to pain relating to the trauma. This was typically characterised by his shortness of breath while watching T.V. and having to leave the room, with an associated sensation of light headedness. In terms of causation, Prof. Egan was satisfied that there was a direct relationship between the accident and the onset of asthma. In terms of a prognosis, from a pulmonary point of view, the plaintiff would have a normal lifespan, but would be prone to asthma and infections. He would require inhalers and tablets from time to time.
82. In cross examination, Prof. Egan said that he had seen the plaintiff shortly before the report dated 2nd June, 2016. He stated that in light of the lung function studies which he saw recently, he was of opinion that the plaintiff had late onset asthma. He said this was somewhat different to what he had said in his report, due to the later lung function studies. It was put to the witness that the defendant’s expert, Prof. Burke, was of the opinion that as the plaintiff had been a smoker for a large portion of his life, a large portion of his breathing difficulties were caused by smoking rather than by trauma. Prof. Egan did not agree with this assertion. He felt that the plaintiff’s past smoking was not that significant, as his initial lung function studies were normal after he had given up the smoking. The symptoms only came on after the accident. He was asked as to whether it was relevant that the plaintiff had taken up smoking again and was a smoker at the present time. Prof. Egan stated that the plaintiff had not told him that. His understanding when he examined the plaintiff, was that he was not smoking at that time. He stated that if the smoking was intermittent, it would not be that relevant. His earlier lung function studies had been normal, so the earlier smoking was not relevant. He stated that often people would smoke in situations of stress. He had been aware that the plaintiff had been a smoker in the past. Prof. Egan stated that the lung function studies in March 2014, did not show any drop in lung function. However, the tests done in 2016, did show a deterioration in his condition which he thought was due to late onset asthma. The witness stated that he accepted that the direct trauma to the chest and lungs had been resolved but the constriction of the airways as shown on the subsequent scans was referable to the accident. He was of opinion that the reduced function on the 2016 test was attributable to the chain of events caused by the trauma of the accident. He stated that the deterioration in lung function was significant. The plaintiff had deteriorated in this area, despite being on the treatment and medication he was on since the accident. He stated that if a patient was doing well, it would be standard procedure to wean them off medication. It was put to the witness that the plaintiff had no symptoms when seen by Prof. Burke. His examination at that time had been almost normal. The witness stated that in eight out of ten cases, it was usual to find asthma patients who had normal lung function.
The Defendant’s Evidence
83. The plaintiff was examined by Mr. Michael Maloney, Consultant Orthopaedic Surgeon, on behalf of the defendant on 23rd July, 2015. He noted that the plaintiff had ongoing problems with an impingement syndrome of the right shoulder. This was due to arthritic changes in the A.C. joint and degenerative changes in the rotator cuff. This predated the accident, but he had no doubt but that it was seriously aggravated by the accident. As the plaintiff did so well with the local injection, he felt that in time the plaintiff would benefit from arthroscopic debridement. The plaintiff also suffered a nasty fracture of the scapula. He noted that recent M.R.I. scans confirmed that the plaintiff had long standing arthritis of the A.C. joint. This probably contributed to his limitation of movements. Observation of dressing and undressing suggested that there was some functional element to the restriction of movement. Mr. Maloney noted that the plaintiff had limited movements of his cervical spine. M.R.I. scan confirmed that he had extensive degenerative spondylosis. He was of opinion that this predated the accident. Insofar as it was made symptomatic by the accident, it could be said to have been aggravated. The current findings were consistent with the radiological findings. There were no findings to suggest that it was accelerated or worsened by the accident.
84. Mr. Maloney stated that the plaintiff had made a good recovery from the fractures to his left ribs. The drain scar on the left side would be permanent. The plaintiff was somewhat “barrel chested”, which might explain his increased incidents of chest infections but interstitial damage to lung tissue can not be excluded.
85. The plaintiff was reviewed by Mr. Maloney on 20th May, 2016, at which stage he complained that his neck was very stiff and sore most of the time. He continued to have pain in the right shoulder, but it was not as intense since the injection treatment. There was a bony prominence in the right shoulder. He had a dull pain all the time in his left shoulder. The area between his shoulder blades was very sore. If he turned quickly he would get a sharp pain in his ribs. He took analgesic medication as prescribed by his G.P.
86. Mr. Maloney noted that the plaintiff suffered a very nasty and frightening injury. The jib of the crane had hit him on the upper left side of his back. It fractured his scapula and crushed the side of his chest. He had associated soft tissue injuries to his neck and upper back and both shoulders. With the exception of left shoulder movements, secondary to the fracture of the scapula, overall he had recovered reasonably well from the actual fractures. The plaintiff had serious underlying degenerative pathology in his neck and in both A.C. joints of his shoulders. Mr. Maloney stated that as was often the case, the aggravation of the underlying degenerative pathology caused more problems than the actual fractures. He thought that little could be done about the aggravation of the underlying pathology caused by the accident.
87. The defendant also submitted a report by Dr. Phillip A. Hodnett, Consultant Radiologist, in relation to the M.R.I. scans of the neck, upper back and lower back. In summary, Dr. Hodnett had was of the view that the M.R.I. scan of the neck identified multilevel cervical spine degenerative disc disease and degenerative facet joint arthrosis, most advanced at C5/6 level with evidence of severe left neural foraminal stenosis evident on prior examination. The M.R.I. scan of the thoracic spine showed multilevel thoracic spine degenerative disc disease and facet joint arthrosis, without significant central spinal canal stenosis. M.R.I. of the lumbar spine also revealed multilevel disc degeneration, most advanced at the L4/5 level where broad based defuse disc herniation asymmetrical to the left exacerbated by degenerative facet joint arthrosis, resulted in moderate left neuro foraminal stenosis.
88. The plaintiff was examined by Dr. Kenneth Sinanan, consultant psychiatrist, on 2nd November, 2016. He noted that in August 2012, the plaintiff had been involved in what he thought was a life threatening accident and following which he suffered some shock. This was followed by symptoms of a P.T.S.D., with a depressive adjustment reaction to the pain and his changed way of life. On returning to work, he witnessed further accidents and they may have reactivated some of his symptoms to the point that sometime after that, he felt he could no longer work in his place of work, where people were exposed to danger. He described ongoing chronic pain, which was not yet fully controlled. Dr. Sinanan recommended that the plaintiff might benefit from reintroduction of antidepressant medication, together with C.B.T. and/or counselling, which could help him diminish his symptoms of distress and assist him to cope with his depression, by helping him to reschedule his life by setting up a new daily programme. He thought that eye movement desensitisation and reprocessing therapy might be helpful to reduce the flashbacks and nightmares. He stated that the plaintiff could use Viagra, or similar medication, to help him and could attend couples counselling or sex therapy to reactivate his sex life. He thought that with some or all of the above interventions, the plaintiff could get a good deal of improvement and could even get well enough to return to the workforce in a place where there would be no element of danger to him or others.
89. Finally, the plaintiff was examined by Prof. Conor Burke, Consultant Respiratory Physician, on behalf of the defendant on 30th April, 2014, and again on 12th October, 2016. In summary, Prof. Burke was of the opinion that the diagnosis in this case was significant post traumatic and indeed, life threatening respiratory injuries, but thankfully the plaintiff had made a full recovery from these significant injuries. He was left with a minor decrement in lung function and his cigarette history was entirely sufficient to explain these minor decrements, as all major indices of lung function were within normal limits. His lung function was not a restriction on any further occupational, or recreational activities beyond those applying to all workers. The only remaining issue was his medication requirement and in this regard, he would recommend attempting to wean this medication in accordance with the usual guidelines in this area, given the plaintiff’s very good current results and in particular, given his absence of any significant respiratory symptomology.
Conclusions on Quantum of General Damages
90. In summary, the plaintiff suffered extensive serious injuries at the time of the accident. He was rendered totally disabled and experienced severe pain in the weeks and months following the accident. The plaintiff had pre-existing degenerative changes in his neck and shoulders. However, I accept the evidence of the plaintiff and of his G.P., Dr. Galvin, that prior to the accident, the plaintiff had been an extremely fit and active man. The degenerative changes were not causing him any symptoms at that time.
91. Prior to the accident, the plaintiff was able for heavy work in the galvanising section of the defendant’s plant. While he had had six previous accidents at his place of work, none of these resulted in a claim and the plaintiff returned to work shortly after each accident. Thus, it is clear that he was a highly motivated man, who was eager to work.
92. As has been set out earlier in the judgment, the plaintiff was rendered totally disabled after the accident. He required the constant care of his wife, who had to give up her work for a period in excess of three months to look after the plaintiff. By early January 2013, the plaintiff managed to walk short distances. He began by walking 0.5km to the park and having rested there, he would walk back to his house. Thereafter, he gradually built up his walking tolerance.
93. The plaintiff returned to work with the defendant in August 2013. He continued at work even though he experienced significant pain in his shoulders and neck. He required analgesic medication on a daily basis. He could not take the medication prior to work, as it affected his driving. The defendant made light work available for him, compiling quality control reports. He was able for the work for a period of eighteen months, after which he had to desist from working due to ongoing pain and more particularly, severe anxiety and P.T.S.D. symptoms. The debilitating effect of his psychiatric symptoms has been set out extensively earlier in the judgment. The plaintiff was obliged to cease work in February 2015.
94. The plaintiff gave an account of a typical day at present, when he attended Dr. Corby on 24th May, 2016. He stated that he gets up at approximately 07:00hrs and has breakfast with his wife. He then drives her to work for 08:20hrs. He returns home and does some domestic duties. He collects his wife again at 14:30hrs. He attends various appointments. He engages in daily exercises, which had been shown to him by his physiotherapist. In the afternoon, he might go down to the river to look at other fishermen engaging in their hobby. He tends to stay in during the evenings and does not socialise as much as he had done prior to the accident.
95. One of the unfortunate sequelea of his injuries, is that the plaintiff has been unable to resume his hobby of fishing since the accident. This was his great passion. He would rise very early and drive to Co. Kerry where he would fish for the day. On occasions, he brought his wife to Killarney for the weekend. During the day he would fish and in the evening they would socialise with friends. All that is now gone. He misses it greatly. I accept the evidence of Mr. Michael Gilmore that the plaintiff will never be able to return to fly fishing again. While the plaintiff is able to walk down to the local river and watch others fishing, any person who has played sports will know that watching others play sport, is a poor substitute for actually participating in the sport itself. The loss of this recreational pursuit represents a significant loss from the plaintiff’s life.
96. The plaintiff continues to have some symptoms of P.T.S.D. as outlined by Dr. Corby. Dr. Sinanan, the defendant’s psychiatrist, has recommended certain medication, which the plaintiff’s psychiatrist agrees might be worth a try. It would appear to be the case that, while the plaintiff had distressing symptoms while at his place of work, his symptoms have decreased since leaving work in February 2015. As noted by Dr. Corby in January 2017, the plaintiff suffers ongoing P.T.S.D. with a heightened startle response and reliving experiences to the trauma. When he returned to the workplace for the purpose of the engineering inspection, he had an increased level of anxiety. Discussing his accident also increased the frequency and the intensity of his reliving experiences. He suffers from ongoing low mood and has become quite withdrawn from his wife. He describes an intermittent death wish. It is hoped that the reintroduction of antidepressant medication will help ameliorate his symptoms. Dr. Corby’s most recent opinion states that the prognosis is guarded, given the chronicity of his pain symptoms and the life threatening nature of the accident he suffered, as well as the ongoing effect of the injuries. Dr. Corby did not anticipate that he would be able to return to his former place of work, given the severity of his ongoing psychological and psychiatric difficulties. The court is satisfied that the plaintiff has significant ongoing psychiatric sequelea, which will be with him into the medium to long term.
97. Another unpleasant sequelea of the accident is that the plaintiff has not been able to have full martial relations with his wife since the accident. This has been caused by pain initially and subsequently by psychiatric symptoms. This constitutes a serious impediment to his martial relationship.
98. The plaintiff has also developed late onset asthma as a result of the accident. While the defendant’s expert, Prof. Burke, ascribes much of his symptomology to his smoking for many years before the accident, Prof. Egan is of the view that, as his lung function studies were essentially normal in 2014, the plaintiff’s smoking was probably not that relevant. I accept Prof. Egan’s evidence that the trauma of the injuries sustained in the accident, set up a spiral of events, whereby the trauma of the accident caused significant injury to the lungs, which has led to a narrowing of the tubes in the lungs. The trauma to the lungs has set up a spiral whereby infection in the lungs causes the tubes in the lungs to become inflamed, thereby rendering it difficult for the plaintiff to breath. In addition, the plaintiff has become prone to suffer frequent chest infections. While the asthma and chest infections do not seem to cause the plaintiff inordinate difficulty at the present time, he is required to use an inhaler and take medication on a regular basis. Prof. Egan is of opinion that the plaintiff will require the use of inhalers and medication from time to time into the future.
99. In relation to the physical injuries, the plaintiff has been left at 59 years of age with continuing pain in his neck, upper back and shoulders, for which he will require injection treatment on an ongoing basis. Dr. Conroy has given the opinion that if the plaintiff gets two to three months pain relief from the injections, that will be a good outcome for him. It would appear that this treatment will be continuing into the long term.
100. In terms of work, while the plaintiff has been found fit for light/medium physical work, for the reasons already set out earlier in the judgment, I do not think that he is likely to obtain suitable employment on the open market having regard to his age, his physical limitations and his lack of educational qualifications. I find that on the balance of probabilities, he will never work again.
101. Taking all of these factors into account, I award the plaintiff the sum of €140,000 for pain and suffering and loss of amenity to date. I award the sum of €95,000 in respect of pain and suffering and the continuing disabilities as outlined above, which will continue for the rest of his life.
The Claim for Special Damages
102. The plaintiff and defendant have agreed a number of the past medical and treatment expenses in the sum of €11,750.
103. In respect of the claim for past loss of earnings, I have already determined that it was reasonable for the plaintiff to cease work in February 2015, and that this was due to his injuries sustained in the accident. I have further found that due to his injuries, the limitations on his work capacity, his age and his level of education, he had effectively been unemployable from the date of the accident until August 2013 and from February 2015 up to the trial of the action. In these circumstances, the parties have agreed that the appropriate sum for past loss of earnings is €78,927, less the appropriate R.B.A. amount, which at the date of judgment comes to €31,008.60, giving a net loss of earnings to date of €47,918.40.
104. For the reasons set out earlier in this judgment, I find that while the plaintiff is fit for light/medium work, on the balance of probabilities the plaintiff will not work again prior to reaching normal retirement age of 67. According to the report issued by Keogh Summers Chartered Accountants, the plaintiff would currently be earning €731.46 gross per week, had he not been injured. The net weekly equivalent of this sum, after tax, P.R.S.I. and U.S.C. deductions, is €576. As the plaintiff will not work again, his net weekly loss is this amount. I accept the evidence of Mr. Tenant, the actuary that the capital value of this loss from February 2017 to normal retirement date at age 67, is €211,580.
105. In relation to the future medical costs which will be incurred by the plaintiff, Mr. Conroy in his correspondence has stated that the costs of cervical denervation will be €1,000 per annum and the costs of suprascapular nerve pulse R.F. lesioning will be €2,800 per annum. Assuming a 1% real rate of return, the capital value of these costs come to €19,442 for the neck treatment and €54,438 for the shoulder treatment.
106. It appears that the plaintiff has current medication costs of €154.90 per month. Of this, the plaintiff has to discharge the drugs charge limit of €144 per month. Mr. Tenant has valued those costs on a 1.5% basis. I think that that is appropriate for these costs. The capital value of these ongoing medical costs for life is €31,669. This gives an overall capital value of medical treatment and medication costs of €105,549.
107. In addition to these treatment costs, it is likely that the plaintiff will incur G.P. fees of circa €250 per annum for the rest of his life. The capital value of this expense from February 2017 onwards is €4,860.
108. The remaining items concern the amounts that should be allowed for past and future care costs and whether it is appropriate for the plaintiff to be allowed the sum of €16,999.12 in respect of the cost of doing alterations to his dwelling. The defendants have agreed the quantum of the building costs, but not that they are properly claimable by the plaintiff.
109. In respect of the sums claimed for retrospective care costs, evidence was given on behalf of the plaintiff by Ms. Noreen Roche, Nursing Consultant. She set out the level of care that was provided to the plaintiff by his wife and brother in law and the level of care that was reasonably required by him at various stages, having regard to the extent of his disability in the months and years following the accident.
110. Ms. Roche’s assessment of the plaintiff’s retrospective care needs were set out at schedules 1, 2 and 3 in her report dated 30th May, 2016. Schedule 1 dealt with the first three months post accident. Given the severity and extent of his injuries, I think that it was reasonable to allow for the level of care set out at schedule 1. I accept Ms. Roche’s evidence that the hourly rates set out therein, were based on the standard H.S.E. rates for day and night time care. Accordingly, I find that the sum of €11,433.24 is appropriate for that period of time.
111. Schedule 2 deals with the period, 18th November, 2012 to 31st August, 2013. This is the period starting three months post accident and ending with the plaintiff’s return to work in August 2013. Ms. Roche noted that following the initial period of three months, the plaintiff was mobile within his home. However, he remained in severe pain. His upper limb strength was still poor and he required assistance mobilising outside his home. During this period he was extremely agitated and frustrated. Due to his pain levels, he was prescribed an increased dose of medication, which was administered and monitored by his wife. Her input during this period averaged four hours staggered assistance daily. The plaintiff remained largely confined to his home. He became extremely depressed. His wife contended that he had severe mood swings and exhibited anger outbursts which impacted on their relationship. Following a period, the plaintiff commenced physiotherapy treatment. He then began driving short distances. Ms. Roche has assessed that during this period the plaintiff would have required four hours care daily.
112. In cross examination, it was put to the witness that this was somewhat excessive, having regard to the fact that in January 2013, the plaintiff’s G.P., Dr. Gavin, had noted that the plaintiff was not able to life a 10kg bag of potatoes. Counsel suggested that this was a somewhat modest limitation. The report further stated that the plaintiff was able to walk a lot. However, he was not able to do fly fishing, nor could he sleep on his left side. The doctor was of opinion that he was making a good recovery. Examination revealed that he had full movement of the neck and back but some limitation of movement in the right shoulder. The witness was asked, how in these circumstances the plaintiff could be seen as needing ten hours care per week. Ms. Roche stated that in her opinion, he needed one hour per day for domestic duties and the remainder of the care was for his bad days. His wife and brother in law helped him a lot during this period. His wife had had to help him with going to bed, going to the toilet and bathing. Counsel stated that none of that was mentioned in the medical reports at that time. Ms. Roche stated that he did require assistance at that time. His brother in law drove the plaintiff prior to the time that he resumed driving. When the plaintiff’s wife returned to work, the plaintiff’s brother in law provided assistance on an “on call” basis.
113. Ms. Roche stated that even when the plaintiff returned to work in August 2013, he still required assistance in dressing and getting out to work. Counsel pointed out that he had been able for work for a period of eighteen months and he had never said that he needed help to get out to work in the morning. Ms. Roche stated that it was her understanding that he had a sedentary job. She did not get into the specific details of his work with him. She did not ask him what he actually did at work. She was led to believe that he had a sedentary administrative job.
114. Counsel put to the witness that her assertion that the plaintiff needed care during the eighteen month period when he was working, was not borne out by the medical report furnished by Mr. Michael Gilmore from an examination on 25th March, 2014. At that time, the plaintiff had complained of pain in the left shoulder and a lot of numbness in the left side of his neck and left arm. He had a decreased range of motion in the right shoulder with a lot of crepitous in the right shoulder on rotation. He had a feeling of the left scapular area being twisted. He had not been able to return to any angling. Examination revealed there was a 50% loss of movement in the neck. He was tender in the left trapezius and also at the right A.C. joint, which was dislocated and showed crepitous on moving the shoulder. There was decreased range of motion in the right shoulder and the plaintiff had decreased sensation in the left C5 dermatome and also in the right little finger. His ribs showed him to be tender in the left posterior and lateral aspect. Ms. Roche accepted that there was no reference to a lower back component in the medical report, nor was there any reference to the use of a stick. However Mr. Gilmore had stated at that time, that the plaintiff continued to be quite disabled in relation to the shoulder. He felt that the plaintiff needed to be reviewed with consideration of carrying out a possible arthroscopic assessment of the right shoulder and perhaps carrying out debridement and acromioplasty and rotator cuff repair. In relation to the question of using a stick, the witness stated that she had seen the stick in the plaintiff’s house and had asked him about it. She had been told that the plaintiff’s wife purchased the stick to give the plaintiff added support when leaning on her, while descending the stairs. Ms. Roche felt that the plaintiff’s pain in his back and shoulders would limit mobility and he would require the use of the stick on the stairs as the stairs, in his house were very steep. Counsel put it to the witness that the question of using a stick was not supported by the medical reports. The plaintiff did not use the stick, nor had he ever told any doctor that he needed one. Ms. Roche stated that he will not need the stick, if he is provided with accommodation downstairs, but he did require it when ascending and descending the stairs.
115. I am satisfied having regard to the extent of the plaintiff’s injuries, that the level of his disability during the period set out in Schedule 2, justified the level of care as set out by Ms. Roche. Accordingly, I will allow the sum set out in Schedule 2 which totals €16,026.08.
116. Schedule 3 deals with the period from when the plaintiff started back to work in the defendant’s plant in August 2013, up to the date of Ms. Roche’s assessment in May 2016. Ms. Roche has allowed for ten hours care per week for this period. In cross examination, it was put to the witness that it was the plaintiff himself who decided to return to work in August 2013, albeit doing a job that only involved light work. It was put to the witness that the plaintiff had coped with the demands of this work for eighteen months. Ms. Roche stated that the plaintiff still needed assistance in dressing and getting out to work.
117. Counsel for the defendant put to the witness that her assessment of the plaintiff’s care needs at that time i.e. when he was working for eighteen months, was not supported by the complaints made by the plaintiff to various doctors during this period. Counsel put to the witness the content of Mr. Gilmore’s report arising out of the examination in March 2014. Ms. Roche accepted there was no reference to any lower back complaint, or to the use of a stick in that report. The witness accepted that the plaintiff had been capable of his light work at the plant for a period of eighteen months.
118. Counsel put to the witness the content of Mr. Gilmore’s report arising out of the examination in February, 2015. Given the passage of time, the doctor felt that the plaintiff would continue to have ongoing difficulty and would require further treatment for the right shoulder in order to alleviate his symptoms. Ms. Roche stated that at this time, the plaintiff needed care, because he could not do upper limb tasks. He required the use of a stick on the stairs, in case he should stagger and fall. Due to his upper limb deficits and the narrowness of the stairs in his house, there was a risk of falling. It was put to the witness that this was not referred to in any of the medical reports. Ms. Roche stated that she had been out to the plaintiff’s house and had actually seen the stairs, which were quite narrow.
119. It was put to the witness that when the plaintiff was seen by Dr. Quinn in July 2015, examination only revealed a mild limitation of movement in the right shoulder. The doctor was of opinion that the plaintiff had improved since last reviewed. In terms of a prognosis, he thought that the plaintiff would have pain in the shoulder in the long term. He was not fit to return to work as a steel worker, or for any job involving heavy labour, but he would be capable of jobs that did not involve heavy lifting or heavy physical exertion. It was put to the witness that as his only deficit was a slight limitation of movement in the right shoulder, he did not require the level of care as indicated by Ms. Roche. The witness disagreed and stated that on the basis of that report, the plaintiff did require both domestic assistance and personal assistance, in particular when showering and dressing. Counsel pointed out that his only limitation at that time, was a slight limitation of movement of the right shoulder, in which he had a 75% range of motion. Ms. Roche stated that when he had periods of pain, he would need the level of care recommended by her. She accepted, however, that the plaintiff was fit for light work at that stage. It was put to her that Ms. Shanahan found that the plaintiff could do light/medium physical activity. Ms. Roche accepted that assessment.
120. It was put to the witness that when the plaintiff was examined by Dr. Gavin on 19th February, 2016, he had complained of pain and disability, particularly in the right shoulder. He had had some physiotherapy treatment and he took the occasional sleeping tablet. He was also noted to have psychiatric symptoms at that time. Ms. Roche accepted this as an accurate assessment of the plaintiff’s condition. It was put to her that on examination he had a range of movement in the right shoulder of 140 degrees out of a possible 180. The witness accepted that this was a significant range of movement. However, she was of opinion that the plaintiff still had difficulty getting dressed in the mornings. Counsel put to the witness that his range of movement in the shoulder joints was sufficient to enable him to dress. Ms. Roche stated that it depended on what he was wearing. Counsel asked her to indicate where in the medical report there was a suggestion that he could not dress, when he had a significant range of movement in the right shoulder and almost full movement in the left shoulder. Ms. Roche stated that he would have difficulty holding things above his head e.g. towel drying his hair.
121. It was put to the witness that the plaintiff had seen Dr. Quinn on the same day as he had been assessed by her on 21st April, 2016. At that examination, he had complained of pain in the right chest going into the neck. He told the doctor that he had medium pain in the shoulder and limitation of movement. However, he could do most routine domestic activities, once he avoided heavy lifting. Ms. Roche agreed with that summary, noting that the plaintiff would have pain setting fires and carrying buckets. Counsel pointed out that examination had revealed that he walked with a normal gait, he was tender in the lower back, his left shoulder was normal. His right shoulder was normal. Counsel asked, if the plaintiff had full movement in both shoulders, surely he would have no problem dressing? Ms. Roche stated that if the doctor found that the plaintiff had full movement in his shoulders, she could not dispute that. She stated that she did not have access to this report when preparing her report. She stated that despite Dr. Quinn’s findings on examination on 21st April, 2016, the plaintiff would still require domestic assistance and personal assistance when having periods of acute pain.
122. When looking at the plaintiff’s retrospective care needs, a number of things need to be kept in mind. The doctors are broadly in agreement that the plaintiff was rendered unfit for heavy physical work after the accident, but has been fit for light work. Ms. Shanahan, the Chartered Physiotherapist, who carried out the functional capacity evaluation, has found him to lack strength, but this has improved following completion of a rehabilitation programme. She has assessed him as being fit for light/medium physical work.
123. It should also be kept in mind that the plaintiff was able for the physical demands of his job in the area of quality control with the defendant company. The reason he had to give up work in February 2015, was mainly due to the P.T.S.D. caused by having to work in an area where he felt unsafe and where he was constantly reminded of his accident. While he did have pain in his neck and shoulders, which required him to take daily painkilling medication, he was able for the physical demands of his job.
124. The court accepts that the plaintiff cannot do any heavy work, such as lifting or carrying heavy loads, or manoeuvring large and heavy objects. The court also accepts that he cannot do tasks which require him to lift his arms above his shoulders. So he would not be able for cutting hedges, hanging wallpaper or painting ceilings. However, having regard to the findings on examination made by the doctors referred to above, the court is not satisfied that the plaintiff was disabled to such an extent that he required the personal and domestic assistance as set out at Schedule 3 of Ms. Roche’s report. At a time when the plaintiff was capable of doing a full week’s work, albeit of a light nature and when he could drive and go for reasonably long walks, the court is not satisfied that he required ten hours assistance every week. Accordingly, the court does not allow the sums claimed in Schedule 3 of the report. However, the court is satisfied that there probably were some DIY jobs and redecoration jobs which would have been undertaken by the plaintiff around the house, but in respect of which the plaintiff must have had to bring in tradesmen to do the work which he was unable to do because of his injuries. I propose to allow a modest sum of €6,000 to cover these expenses.
125. Ms. Roche has also advised that certain alterations be made to the plaintiff’s house to enable him to reside there for the rest of his life. In an email dated 12th July, 2016, Ms. Roche advised that the plaintiff will require full accommodation at ground floor level, to include a toilet and shower room. She based her opinion on the fact that the stairs in the plaintiff’s house is very steep and narrow. She thought that this would present him with particular difficulty as he gets older. In cross examination, it was put to her that no doctor, or other expert, had made any such recommendation. Ms. Roche stated that that may be due to the fact that she was the only person to view the stairs. She did not measure the goings and risings on the stairs, nor did she have any photograph of them. However, she was of the opinion that given their steep and narrow nature, they would constitute a risk to someone who was disabled. She was of opinion that due to his physical limitations and respiratory problems, it was necessary for the plaintiff’s safety that he should move downstairs.
126. This plaintiff has suffered serious injuries to the upper part of his body. He continues to experience constant neck and shoulder pain, for which he will require treatment in the form of painkilling injections for the foreseeable future. He also suffered late onset asthma and suffers from frequent chest infections. The court is of opinion that these ailments while being serious, are not such as to greatly affect his mobility around the house. The court is not satisfied that the plaintiff requires accommodation on the ground floor. It may be that given the steep nature of the stairs, this will present a difficulty for the plaintiff as he gets older. If in time, the plaintiff reaches the stage where he cannot manage the stairs, that will be caused by the natural aging process, and the particular configuration of his house, rather than by the injuries sustained in the accident. Accordingly, the court does not allow the sum claimed for carrying out alterations to the plaintiff’s house.
127. Finally, there is the question of future care costs. In order to see whether such care costs are likely to arise in the future, the court must have regard to the most recent evaluations and prognoses given by the various doctors. In this regard, Ms. Roche was at somewhat of a disadvantage, as she did not have access to the medical reports which post-dated her examination. It is not necessary to set out in detail the evidence given by the medical witnesses in relation to the plaintiff’s current state, as this has been set out in detail earlier in this judgment.
128. Having regard to the evidence given by the medical witnesses as to the plaintiff’s current condition and having regard to the most recent medical reports, the court is satisfied that the present position can be summarised as follows: the plaintiff is a 59 year old man, who continues to have constant neck, back and shoulder pain, which will require injection treatment on an ongoing basis. He has limitation of movement of the neck and shoulders. He also has respiratory symptoms and mental health issues. He cannot do heavy work, nor can he do his hobby of fishing. However, none of the treating doctors have said that the plaintiff will become disabled to such an extent that he will require domestic or personal assistance in the years ahead. In the circumstances, the plaintiff has not established a basis for allowing the level of future care as set out in Ms. Roche’s report. Accordingly, the court declines to make any award in respect of future care costs.
129. As noted earlier when dealing with retrospective care costs, the court does accept that the plaintiff cannot do any form of heavy work, or work which involves overhead movement of his arms. It is reasonable to assume that there will be repair and decoration jobs around the house which the plaintiff would have done but for the injuries sustained in the accident. In the future, he will have to hire in tradesmen to do these jobs. In these circumstances, the court is of opinion that it is appropriate to allow the sum of €25,000 in respect of these future expenses. Adding the various heads of damages which have been allowed, this gives the plaintiff a total award of €675,116.72.
O’Shaughnessy v Dublin City Council
[2017] IEHC 774
JUDGMENT of Mr. Justice Barr delivered on the 20th day of December, 2017
Introduction
1. This action arises out of an accident which occurred at approximately 01:00 hours on 4th November, 2007, at Cullenswood Road, Ranelagh, Dublin. The plaintiff had left his flat at No. 6A Oakley Road, Ranelagh, for the purpose of purchasing some cigarettes. Although it was late in the night, he thought that the Spar shop at the triangle in Ranelagh, might have been open. On the night in question, he had his neighbour’s dog, which was a small terrier, on a lead walking in front of him.
2. The plaintiff came out of his flat and turned left onto Oakley Road. He proceeded to the end of the road and then turned right onto Cullenswood Road, where he walked along the right hand footpath going towards the triangle in Ranelagh village.
3. It is the plaintiff’s case that while walking under the Luas bridge, he was caused to trip and fall to the ground, when his right foot came into contact with portion of a stone block, which was projecting from the right hand side of the Luas bridge at ground level. The offending piece of stone is shown in photographs Nos. 3, 4 and 5 which were taken by Mr. Alan Conlan, Engineer, on 5th December, 2007.
4. The defendants were jointly represented at the trial of the action. Each of the defendants denied liability for the accident and also put quantum in issue. The defence also contained a plea of contributory negligence to the effect that the plaintiff was the author of his own misfortune, he had failed to maintain any or any proper lookout, had failed to look at the footpath upon which he was walking, had failed to observe the presence of the stone on the footpath in front of him and had exposed himself to a risk of injury or damage of which he knew, or ought to have known. Thus, all matters were in issue between the parties.
Summary of the Evidence
5. The plaintiff is sixty-one years of age. He had spent most of his working life in Britain, working as a plumber. He returned to Ireland in or about 1994, when his mother became ill. He had worked for various construction firms on and off during the years that followed. He was ultimately made redundant by a company called Tenec in 2001. He had not worked in the interval between that time and the time of the accident.
6. The plaintiff stated that on the night in question, which was a Saturday night, going into the early hours of Sunday morning, he had spent the day in his flat watching television with his friend, Mr. Noel Nugent, who also resided there. The plaintiff stated that he had gone out during the day to purchase cigarettes and some cans of beer. He explained that on that particular evening, he and Mr. Nugent had a neighbour’s dog staying with them, as the neighbour would often leave his dog with them, as he was elderly and did not like walking the dog at night.
7. At approximately 01:00 hours the plaintiff put the dog on a lead and proceeded out to go to the Spar shop in Ranelagh village to purchase some more cigarettes. He left his flat on Oakley Road and turned left and walked down the road to the junction with Cullenswood Road, where he turned right and proceeded towards the triangle in Ranelagh village. The plaintiff indicated that by reference to photograph No. 13, of the photographs taken by Mr. Conlan, he had come down Oakley Road which was to the left of the junction, where the blue house could be seen. He then turned right and started to walk towards the camera. He proceeded down the road and went under the Luas bridge, as shown in photograph No. 8. He stated that the dog was walking some 4/6ft in front of him, tight against the wall. He was following directly behind the dog and was also very close to the wall. As he was going under the Luas bridge going in the direction of the triangle, as shown in photograph No. 2, the wall itself jutted out at the far-end of the bridge. As he came to the very end of that section, his right foot caught on a piece of stone, which was protruding from the wall, causing him to trip and fall forwards onto the ground. He turned to his right as he was falling and landed on his right shoulder.
8. The plaintiff stated that he tripped on the piece of stone which was jutting out from the bottom section of the wall as shown in photograph No. 3, and in closer view in photographs 4 and 5.
9. The plaintiff stated that he was lying on the ground for a few moments. He was in shock and also in severe pain. However, after a few moments, he was able to get himself sitting up. He had managed to keep hold of the lead, so the dog had not escaped. While he was sitting on the ground, a female garda, who had been walking on the far side of the street, saw him and came across. She enquired if he was alright. He assured her that he was all right and told her that he would just rest there for a few moments before proceeding on. The female garda then proceeded on her way. The plaintiff stated that he was unable to get himself into a standing position, so he shuffled on his backside along the pavement to a doorway, or entrance, which was shown beneath the “For Sale” sign in photograph No. 8. He was hoping that by using the aid of the wall, he might be able to stand up. However, he was not able to do so.
10. After some time, the female garda returned. The plaintiff asked her to help him up and she did so. She then escorted him back to his flat on Oakley Road. She used his key to open the front door and left him sitting in the sitting room. The plaintiff was unable to sleep that night due to pain in his right shoulder. His arm became very swollen and sore. Later that day, he went to the Accident and Emergency Department of the Mater Hospital. That was on Sunday 4th November, 2007. They told him to return on the following day to the fracture clinic. When he returned on 5th November, 2007, his arm was placed in a collar and cuff. He was instructed to return a week later. When he did so, he was seen by a Dr. Sinnott, who referred him to the care of Mr. Darragh Hynes, Consultant Orthopaedic Surgeon.
11. X-rays revealed that the plaintiff had a comminuted fracture of the right shoulder. Having examined the plaintiff and reviewed the x-rays, Mr. Hynes admitted the plaintiff to hospital on 13th November, 2007. Two days later, the plaintiff was brought to theatre, where open reduction and internal fixation was carried out to the shoulder. However, due to the grossly comminuted nature of the fracture, it was not possible to insert any screws into the shoulder itself. Post-operatively, the plaintiff’s wound healed. The fracture went on to make a satisfactory, though incomplete, union.
12. The plaintiff had physiotherapy treatment, where he was shown movements of the shoulder joint and was given a home exercise program and was also told to squeeze a rubber ball, so as to increase strength in his arm and shoulder. He stated that he followed this program, until he realised that he was not getting any better, at which stage, he stopped doing the exercises. In terms of pain, he stated that while the pain had been severe during the initial stages, it had pretty much settled after 2008.
13. The plaintiff returned to the U.K. in February 2008. He currently lives there in sheltered accommodation, which has been provided to him by the local authority, on the basis that he has a permanent disability. Having assessed his needs, they installed a wet-room in the house. He is currently on Disability Allowance and Employment Support Allowance from the U.K. government.
14. The plaintiff stated that although he does not have much pain on an ongoing basis, he does require injections from his G.P. from time to time when his shoulder is stiff and sore. He remains quite disabled in the ordinary aspects of his life. He states that he is unable to use his right arm and hand. He had been right hand dominant. Now he is obliged to do everything using his left hand. He finds this difficult and is a lot slower doing ordinary tasks. It affects him when washing and toileting. The toilet seat has been raised and he has rails in the bathroom and shower. He is unable to tie his shoelaces and requires the assistance of a neighbour to do this for him. He has to shave with his left hand. When eating, he uses a fork in this left hand. He does not do much cooking, as he tends to put ready meals into the microwave. He is able to dress himself, but it takes longer than normal. Prior to the accident his hobbies had been snooker and table tennis. He is not able to do these things since the accident. The other aspect of his injury which causes him considerable embarrassment is the fact that as a result of the fracture and the operative treatment thereto, his right arm is 6cm shorter than his left arm. As he is not able to use the right arm, the muscles on the arm have become wasted away. Movement of the right shoulder is limited. He indicated that he was only able to raise his arm approximately at an angle of 45 degrees from the side of his body.
15. In cross-examination, the plaintiff was asked about a number of seizures that he had prior to the time of the accident. While he was unsure of dates, he thought that he may have had a seizure in 2004 or 2006. It was put to him that he had been admitted to the Mater Hospital in February 2007 after suffering a seizure, while in a public house. In the hospital admission records in relation to that event, it was recorded that he may have had a seizure some eight months previously, which would put it circa June 2006. The plaintiff accepted that as accurate. It was put to the plaintiff that in February 2007, he had in fact had two seizures while in the pub. He had had one earlier in the evening, but had recovered and remained on in the pub and then had had a second seizure, which required his removal by ambulance to the Mater Hospital. The plaintiff stated that that was correct. The plaintiff was asked as to the medical diagnosis for the seizures. He stated that the doctors had told him that it might have been epilepsy, which might have been alcohol related. He accepted that he had a brother who also had alcohol related epilepsy.
16. It was put to the plaintiff that during his admission to the Mater Hospital, he had been prescribed a large amount of medication. The plaintiff agreed. He was not able to recall what exact medication had been prescribed. He had also had a drip inserted into his arm on that occasion. It was put to him that from the notes, it would appear that he was prescribed a drug called Cabonax, which was for vitamin deficiencies caused by alcoholism. The plaintiff agreed that he had been given that drug. It was also put to him that he had been prescribed Librium for anxiety and acute alcohol withdrawal. It was put to him that the side effects of Librium, included dizziness and difficulty walking. The plaintiff stated that he was not made aware of any such side effects. He had only been given Librium while in hospital. It was put to him that he had also been prescribed Atoplan and Diazepam for the seizures. The plaintiff did not remember those medications, but accepted that he may have been given them. The doctor had told him that he could have alcohol related epilepsy, due to the fact that he was drinking too much. The plaintiff accepted that he had discharged himself from hospital against medical advice on that occasion in February 2007.
17. The plaintiff was asked as to whether he had been treated by his G.P. after his discharge from hospital in February 2007. The plaintiff stated that he had gone to his G.P., Dr. Joyce. He had seen him after the seizures and before the time of his fall. He had placed the plaintiff on medication to calm him down, which could have been Diazepam. The plaintiff did not think that he was on Librium at that time. He recalled that he may have been told of the side effects of Diazepam, being dizziness, blurred vision and possible ataxia. He was not told anything about possible vertigo. He thought that he took the medication which had been prescribed, possibly up to the time of the accident, but he was not sure.
18. The plaintiff was asked what he had done during the day prior to the fall. He stated that he had just been sitting around his house with his friend Noel Nugent. He may have gone out to the shops during the afternoon to get cigarettes and cans of beer. He could not actually recall going out. He was not sure at what time the dog was left in by his neighbour during that evening. They would have kept the dog overnight. In relation to going out to get the cigarettes, the plaintiff stated that he just decided to go out to get the cigarettes for himself and, his housemate, Noel. He thought that the Spar shop in Ranelagh village had late opening hours. However, he was not certain of that, because he did not get to the shop that night. His intention was to take the dog for a walk and to get cigarettes in the Spar shop, but he was not sure if the shop would actually be open.
19. The plaintiff described that the dog was on a leather lead, which was some 4/6ft long. The dog was walking close to the wall and was cocking his leg against it from time to time. The plaintiff stated that he was walking directly behind the dog and almost touching the wall. He was asked whether he would have taken such a path, given that that would have involved him walking through the urine that had been left by the dog. The plaintiff stated that he did walk along that route, as the dog was very small. He stated that he tended to walk close to the wall, as he did not like to walk near the edge of the footpath close to the road. He was asked why he had not seen the portion of stone sticking out onto the footpath. The plaintiff stated that it was very dark under the bridge and there was no lighting in the area. On this account, he had not seen the piece of stone sticking out from the wall.
20. The plaintiff was asked why in both the solicitor’s initial letter, in his form submitted to the Injuries Board and in his engineer’s report, following an inspection of the locus on 5th December, 2007, the incorrect date of the accident had been given as 9th November, 2007. The plaintiff accepted that that was the wrong date. He could not explain how that mistake had occurred. It was put to him that in his form submitted to the Injuries Board, he had merely stated that he had tripped and fallen at the Luas bridge near the triangle in Ranelagh. He accepted that that account did not mention anything about any stone sticking out from the wall. However, the form had not been filled in by him, although he accepted that it was his signature at the foot of the form. It was put to him that a similar mistake in relation to the date of the accident had been set out in a letter which had been sent to the first named defendant on 30th November, 2007. The plaintiff accepted that the date was mistakenly stated therein, but he could not explain how that had happened.
21. The plaintiff was asked about the female garda, who had come to his assistance. He stated that she had attended on him twice that evening. On the second occasion, she had escorted him home. However, he had not asked her, her name.
22. The plaintiff was asked why his engineer had stated in his report that the plaintiff was “not a 100% sure of the exact accident location. However, he considers it highly probably that he tripped at the protruding stone (photograph 5).” The plaintiff stated that when he went to the locus with the engineer on 5th December, 2007, he told him that he had met with the accident “around about there”, pointing to the accident locus. He stated that he did point out the exact locus to the engineer. He stated that the engineer was wrong to say that he was not sure of the locus. The plaintiff was asked to explain why the engineer had stated that the plaintiff considered it “highly probable” that he tripped on the stone. The plaintiff stated that he was sure of where he had fallen, and that it was most likely because of the stone sticking out from the wall.
23. The plaintiff was asked about his conduct on the evening after the operation had been carried out to his shoulder on 15th November, 2007, while he was still in the Mater Hospital. In particular, it was put to him that the hospital records showed that he was recorded as being missing at 22:00 hours on the evening of 15th November, 2007. The plaintiff initially stated that he had gone out to the gazebo to smoke a cigarette and had fallen asleep out there. When it was pointed out that the hospital records noted that he had returned at 1.15 hours on the 16th, with his girlfriend, Sharon, and had stated that he had been to O’Connell Street to get a lift for his girlfriend, but when she had missed the lift, they had gone to a pub instead; the plaintiff accepted that that had happened. He stated that he had gone out for a smoke and he and his girlfriend had ended up going for a pint.
24. It was put to the plaintiff that his account lacked credibility; that he would be walking so close to the wall to trip on the piece of stone, which was only jutting out 4.75 inches onto the footpath and if he had been that close to the wall and had tripped, he would have struck the wall, when in reality the accident had happened due to the consumption of alcohol. Counsel for the plaintiff objected at this point, pointing out that there was no allegation made in the pleadings, that the accident had occurred due to any consumption of alcohol, or due to taking prescription medication, or was due to alcohol related epilepsy.
25. In relation to his pre-accident work record, the plaintiff accepted that he had returned to Ireland in 1994, and worked for various employers subsequent to that time. Although he had been present in Ireland during the so-called Celtic Tiger years, he had not in fact been working since being made redundant in or about 2001. He confirmed that he had not worked since the accident. In relation to taking prescription medication, the plaintiff stated that while certain medication had been prescribed for him in the Mater Hospital at the time of the seizure in February 2007, he had discharged himself from the hospital and had not taken any prescription for medication with him. Accordingly, he had not taken any of the medication that had been prescribed for him in the hospital, after he had left the hospital on that occasion.
26. Evidence was given by the plaintiff’s sister, Ms. Carmel O’Shaughnessy-Martin. She had been with the plaintiff when he had been brought from the pub to the hospital suffering from seizures in February 2007. This had occurred on the night that their brother, who had died just prior to that time, had been taken to the church in preparation for the funeral. She had kept the plaintiff in her house, so that he would not drink. He had not been drinking during the day and had only had two pints that evening. As far as she knew, the doctors put him on a detox program in the hospital. He subsequently signed himself out of the hospital. He had not had problems since that time. This witness was not cross-examined.
27. Evidence was given on behalf of the plaintiff by Mr. Alan Conlan, consulting engineer. He confirmed that he had taken photographs Nos. 1-7 at the time of his inspection of the locus on 5th December, 2007. The remaining photographs had been taken on 23rd November, 2017. He stated that prior to the opening of the green Luas line for operation on 20th June, 2004, a thorough survey and assessment would have been carried out of the tracks and bridges along the route. It was clear that fairly substantial works had been carried out to reinforce the bridge. These were particularly evident on the far side of the road as shown in photograph No. 14, where an entirely new wall and a concrete plinth had been put in situ to support the overhead bridge. On the side on which the accident had occurred, it appeared that the reinforced concrete plinth had been placed on top of the existing stone wall.
28. Mr. Conlan stated that any visual inspection of the structure of the bridge, would have revealed the protruding piece of stone as shown in photographs 2 – 5. He could think of no reason why the defendants had left the stone protruding out onto the footpath. It could easily have been removed. It served no function at all. In his opinion it ought to have been removed, as it constituted a danger on the public footpath.
29. The protruding stone was approximately 370mm long. Its front facing edge was 50mm high. At the back edge the stone was 100mm high. The stone extended out from the wall of the Luas bridge onto the footpath by 120mm (4.75in).
30. In cross-examination, Mr. Conlan accepted that a person would have to be up against the wall in order to trip on the piece of stone. They would have to be walking along the line of the wall itself and would have to have been almost touching the wall in order to make contact with the stone. He accepted that it was not the usual way in which pedestrians would walk along the footpath. However, in this case the plaintiff stated that he had been following the dog, which had been walking tight to the wall.
31. Mr. Conlan outlined how he had attended at the locus on 5th December, 2007 with the plaintiff and his solicitor. The plaintiff had described the accident as set out in his report. The plaintiff stated that he could not be 100% sure, but as a matter of “high probability” he thought that he had tripped on the piece of stone. Mr. Conlan thought that in phrasing it that way, he was just being honest. He identified the stone as being highly probable as the cause of his fall. Mr. Conlan confirmed that the plaintiff has given him the date of the accident as being 9th November, 2007. He accepted that the plaintiff was wrong in that regard.
32. Mr. Conlan stated that he did not consider the lighting of the locus, as that had not come up at the inspection. That was why it was not mentioned in his report. He accepted that given the particular location, it would be highly unlikely that the plaintiff would not have been able to see his dog at the end of the lead. It was put to the witness that if the plaintiff had told the court that it was so dark, that he could not see the dog at the end of the lead, this implied that he was totally confused. Mr. Conlan accepted that the plaintiff should have been able to see the dog at the end of the lead.
33. No evidence was called on behalf of the defendants.
Submissions of Counsel
34. At the conclusion of the case, counsel for the plaintiff, Ms. Patricia Dillon, S.C., submitted that having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, the third and/or fourth named defendants were the owners and occupiers of the bridge in question and as such, were liable for the nuisance created on the public highway, which caused the injuries sustained by the plaintiff. She submitted that the entire of the railway line known as the Harcourt Street Line had originally been owned by CIE. By virtue of s. 33 of the Transport (Railway Infrastructure) Act 2001, all of the property which had been owned by CIE, was transferred on the establishment day to the third named defendant. The third named defendant had subsequently entered into a contract, which provided that the operation and maintenance of the Luas line, including the Green Line running to Ranelagh, was to be operated and maintained by the fourth named defendant. It was the third named defendant, or the fourth named defendant, which was responsible for surveying the Harcourt Street line to ensure that it was capable of carrying the Luas and it was they who had carried out the works to the bridge in question, as set out by Mr. Conlan in his report and in his evidence.
35. Counsel submitted that in the circumstances, the third and/or fourth named defendant had created or maintained a nuisance on the public highway in letting the piece of stone, as shown in photographs 3 – 5, extend out from the foot of the wall by some 120mm (4.75 inches). The portion of stone that jutted out onto the pavement, served no functional purpose at all. It could easily have been cut away. Based on the evidence of Mr. Conlan, that is what the defendants should have done, in order to render the locus safe.
36. Counsel further submitted that the defendants, and each or either of them, were the owners and occupiers of the bridge and the footpath and as such they owed the common duty of care as defined in the Occupier’s Liability Act 1995 to the plaintiff, who was a visitor on their premises. It was submitted that in permitting the locus to be in a dangerous condition, with the piece of stone jutting out from the wall onto the footpath in the manner that it did, constituted a breach of the common duty of care owed to the plaintiff. In these circumstances, it was submitted that the defendants were liable for the injuries sustained by the plaintiff.
Conclusions
37. There are three issues on liability in this case, as follows: (a) did the defendants, or any of them, create or maintain a nuisance on the public highway; (b) did the plaintiff fall to the ground on the night in question, as a result of tripping against this piece of stone; and (c) if the answers to the two previous questions are yes, was the plaintiff guilty of contributory negligence in failing to see the stone?
38. It is settled law that even a small impediment on the public highway can constitute an actionable nuisance. In Hassett v. O’Loughlin [1943] 78 ILTR 47, O Briain J. stated:-
“A nuisance is not confined to an obstruction on the highway; it may consist of anything which makes the use of the highway unsafe or dangerous to the public.”
39. In the Hassett case, liability was imposed on the defendant for placing a tiny heap of stones on the highway. In Stewart v. Governors of St. Patrick’s Hospital 73 I.L.T.R. 115, it was held that the occupier, of unfenced vacant land adjoining a highway, was liable in nuisance to a person lawfully using the highway, for injuries caused to that person by a pipe projecting from the land in close proximity to the highway.
40. I am satisfied from the evidence given by Mr. Conlan, that the piece of stone, which jutted out from the foot of the wall, as shown in photographs Nos. 3 – 5, constituted a nuisance on the public highway. It may well be that as the stone only jutted out some 120mm onto the highway and as people do not normally walk tight against a wall, for this reason accidents may not have occurred in the past. Just because the vast majority of people will walk some distance from a wall, when walking along the footpath, this does not mean that some people will not walk tight against the wall for whatever reason. I accept Mr. Conlan’s evidence that when this bridge was being assessed in preparation for the commencement of the Luas operation, those carrying out the assessment should have seen that the stone projected out onto the footpath and that the projecting portion served no function whatsoever. I accept Mr. Conlan’s evidence that even on a casual visual inspection, the danger should have been noted and the offending piece of stone should have been cut away. Accordingly, I am satisfied that the third and fourth named defendants created or maintained a nuisance on the public highway, by allowing this piece of stone to jut out onto the footpath.
41. I am also satisfied having regard to the provisions of the Transport (Railway Infrastructure) Act 2001, that the third and/or fourth named defendants were the owners and occupiers of the lands consisting of the Luas line and in particular of this bridge. As such, they were the owners of the highway out to the midpoint in the road. I am further satisfied that in allowing the stone to project out onto the footpath in the manner that it does, they have failed to extend the common duty of care as defined in the Occupier’s Liability Act 1995, to persons using the footpath, who are visitors on their property.
42. The central issue in this case is whether the plaintiff has established that he met with his accident as a result of tripping against the piece of stone in the manner described by him. Having observed the plaintiff carefully giving his evidence and in particular when giving his evidence on cross examination, a number of things are clear to the court. Firstly, he has difficulty with dates. He was unsure in relation to the dates on which he returned to Ireland and was somewhat unclear in relation to the specific dates on which he had actually worked while in Ireland. It would also appear that he had been, at least unsure, in relation to the date of the accident, as it appears that the incorrect date was set out in the initial warning letters from his solicitor and in his form submitted to the Injuries Board. It would also appear that the incorrect date was given to his engineer at the time of the inspection on 5th December, 2007.
43. Secondly, it would appear that the plaintiff has had problems with alcohol in the past. From the records which were referred to in cross examination, it would appear that the seizures suffered by the plaintiff in 2006 and in February 2007, may well have been alcohol induced epileptic attacks. The plaintiff accepted that his brother had also been diagnosed with a similar problem. The plaintiff’s sister gave unchallenged evidence to the effect that she had to take him into her house, so as to ensure that he did not drink to excess at the time of his brother’s funeral. Thirdly, it appears that on the day on which the plaintiff had undergone fairly substantial operative treatment to his right shoulder, he actually left the hospital grounds and spent a number of hours drinking in a pub with his girlfriend. All of this is indicative of the plaintiff having a problem with alcohol. Although not asked specifically how much alcohol he had had to drink on the day and night in question, the plaintiff had candidly stated that during the day he may have gone to the shop to buy some cans of beer for himself and his flatmate.
44. There was also a suggestion in cross examination, that the plaintiff may have been taking certain medication at the time of the fall, the side effects of which may have caused him to suffer from dizziness, loss of balance and/or ataxia. However, two things need to be noted about these assertions; firstly, no medical evidence was called by the defendant to establish what are, in fact, the side effects of the medications that were mentioned in the medical records, nor as to what dosage of medication would normally be required in order to produce these side effects. Nor was it established that the plaintiff had been furnished with a sufficient quantity of medication to induce these side effects. Secondly, it would appear that while certain medication is mentioned in the hospital records from the time he was admitted with the seizure in February 2007, it appears that the plaintiff discharged himself from the hospital against medical advice and as such, he left without any prescription for medication. Thus, the only medication that he may have been on at the time of the accident, and this was not proven, was whatever medication may have been prescribed by his G.P. at that time.
45. Counsel for the defendants, also laid great stress on the fact that in the plaintiff’s engineer’s report, it was stated that he was not a hundred percent sure of the exact accident location. However, the plaintiff was adamant that he fell at that location and considered it highly probable that he tripped on the protruding stone as shown in the photographs. When questioned on this apparent lack of clarity, Mr. Conlan was of the view that the plaintiff was probably just being honest. Having watched the plaintiff give his evidence and in particular in the manner in which he answered questions put to him by counsel on behalf of the defendants, some of which would have been somewhat uncomfortable for him to answer, he was not generally evasive, or lacking in candour.
46. While the court cannot ignore the fact that the plaintiff gave the wrong date for the accident in his initial instructions to his solicitor and to his engineer, thereby causing the incorrect date to be stated in the initial warning letters from his solicitor and in his Injuries Board form, this does not necessarily mean that he is lying about his account of the incident. Not all plaintiffs will present with a well-rehearsed and neatly packaged story. The court must take account of human frailties, whether caused by age, poor memory, or the effects of excessive alcohol consumption over a number of years.
47. It is greatly to the credit of Ms. Gallagher, the plaintiff’s solicitor, and Mr. Conlan, the plaintiffs’ engineer, that they did not try to “nudge” the plaintiff to give a more definite account of his accident, when he attended the locus with them in December, 2007. I am satisfied that Mr. Conlan had faithfully reported what was said to him by the plaintiff on that occasion.
48. Save with the exception of his initial answer in relation to his conduct on the night of his operation, I am satisfied that the plaintiff has done his best to tell the truth in relation to the circumstances of the accident. I think that Mr. Conlan was correct, when he said that the plaintiff was probably just being honest, when he gave his description of the accident to the engineer at the inspection in December 2007. It seems to me that if the plaintiff was going to do a “ready up” in relation to the cause of his fall, the very least he would have done was, that he would have been emphatic as to what he had tripped over and how he had tripped, when giving instructions to his solicitor and engineer. If it was a “ready up” or fraudulent claim, he would also probably have acquired the assistance of a “witness”, who would corroborate his version of events. The plaintiff did neither of these things.
49. A further matter pointing to the truthfulness of the plaintiff, is the fact that he did not try to exaggerate, or embellish his account of his injuries or disability to date. In fact, he very candidly stated that he had not had much pain after 2008. His account that he was not able to use his right arm and on that account has had to learn to use his left hand, is supported by the fact that on a visual examination, the muscles on his right arm are almost totally wasted. This suggests that he is telling the truth, when he states that he does not use the arm at all.
50. Taking all of these matters into consideration, I am satisfied that the plaintiff has told the truth in relation to how he met with his accident. While it is certainly unusual, I accept his account that on the night in question he was walking very close to the wall, directly behind the dog. In these circumstances it is entirely reasonable that his right foot would have come into contact with the protruding piece of stone. While it may be unusual for a pedestrian to walk so close to the wall, it is not indicative of contributory negligence for them to do so. A pedestrian may use the full width of a footpath to walk on. Accordingly, I find that the accident occurred in the manner alleged by the plaintiff. That being the case, having regard to the findings already made in relation to the creation of the nuisance on the footpath and the breach of the common duty of care owed by the defendants as owners and occupiers of the locus, I find that the third and fourth named defendants are liable to the plaintiff for the injuries sustained.
51. The final issue on liability, is whether the plaintiff was guilty of contributory negligence. It has been pleaded that the plaintiff failed to take reasonable care for his own safety; in particular, that he failed to watch where he was going and ought to have seen the portion of the stone which was projecting out onto the footpath. Pedestrians, when walking along the footpath, must take reasonable care. They must keep a proper lookout of the path in front of them and take care to avoid obstacles, or dangers which are readily apparent on the footpath. However, given that the average person is approximately 5ft 8 inches tall, their eyes are at some distance above ground level. Pedestrians are not expected to walk along looking down at their feet, in case there might be obstacles or other dangers on the surface of the footpath.
52. In this case, where the danger existed at ground level and where it would appear that the locus was somewhat badly lit and having regard to the fact that the projecting stone was of the same colour and material as the walls above it and surrounding it, I do not think there was any negligence on the part of the plaintiff in failing to see this particular obstacle on the footpath. Given that the wall and the projecting stone were both grey in colour and the surface of the footpath was of a similar colour, I do not think that it can fairly be said that the plaintiff failed to take reasonable care for his own safety, when he failed to see the stone jutting out onto the surface of the footpath. In these circumstances, I decline to make any finding of contributory negligence against the plaintiff.
53. Turning to the injuries, it is not necessary to repeat the account of the injuries and the account of the disability flowing therefrom as given by the plaintiff in his evidence. The only medical evidence in the case were the two reports and the letter furnished by Mr. Darragh Hynes, Consultant Orthopaedic Surgeon. It is not necessary to set out the content of those reports in detail.
54. In summary, the plaintiff has suffered a grossly comminuted fracture to the right shoulder. This required operative treatment. However, due to the extent of the comminution of the fracture, it was not possible to internally fixate the fracture itself. The fracture has gone on to make a satisfactory, although incomplete union. The plaintiff suffered pain in the shoulder at the time of the injury and for approximately one year thereafter. Since then, any pain or stiffness that the plaintiff has had, has been satisfactory treated by the administration of injections to his shoulder by his G.P. in the U.K. When seen on 18th August, 2015, Mr. Hynes noted that the plaintiff had had an injection approximately three years prior to that i.e. in 2012 and had had a further injection circa September 2014. The plaintiff in evidence, stated that he had had further injections at the rate of approximately two per year.
55. Mr. Hynes is of opinion that the plaintiff’s current position, as set out in his report dated 26th August, 2015, is permanent. The plaintiff will continue to have a significant functional deficit as a result of decreased use of the right arm. He will continue to have difficulties with elevated use of his right hand. Mr. Hynes is of the view that there is unlikely to be any improvement in the future. The good news from the plaintiff’s point of view is that he is of the view that, having regard to the progress made by the plaintiff up to that time, it is probable that the plaintiff will not develop a progressively more painful condition in the shoulder. However, he may require injection treatment from time to time from his G.P. Mr. Hynes enters the caveat that it is possible that the plaintiff may develop sufficient pain, such that surgical intervention would have to be undertaken. This would involve a shoulder replacement procedure. However, he did not feel that the plaintiff’s condition in 2015 was bad enough to warrant that course of action.
56. Thus, the plaintiff has suffered a comminuted fracture to the right shoulder which required operative treatment. While pain in the shoulder had largely subsided with the administration of intermittent injection treatment by his G.P., the plaintiff has been left with a significantly disabled right arm. I accept his evidence that he does not use the right arm and hand. This has required him to use his left hand and as a result, he is considerably slower in doing normal activities of daily living.
57. However, the court must also have regard to two things. Firstly, while Mr. Hynes has stated in his report from August 2015, that the plaintiff “will continue to have a significant functional deficit,” he does not say that as a result of the fracture to the shoulder, the arm is incapable of any use. I accept that as a result of his injury, the plaintiff is functionally limited in his right arm, but I do not accept that the arm is incapable of any use at all. The medical evidence does not go that far.
58. The second point is that the plaintiff was shown a set of exercises by his physiotherapist to strengthen the muscles in his shoulder and arm. On his own evidence, he discontinued doing these exercises, when he came to the conclusion that they were not doing him any good. In these circumstances, the court has to come to the conclusion that on the balance of probabilities, a significant degree of his continuing disability and muscle wasting, has arisen as a result of his failure to follow the rehabilitation programme advised by his physiotherapist, rather than being due to any wrongdoing on the part of the defendant.
59. I accept that he is unable for his pre-accident hobbies of snooker and table tennis. I also accept the plaintiff’s evidence that he is very embarrassed by the fact that his right arm is significantly shorter than his left arm. Some loss of function in the right arm and its being shorter in length, will be permanent. In these circumstances, I award the plaintiff €40,000 for pain and suffering and disability to date, together with €27,500 for disability and loss of function into the future. There are no items of special damage. In view of the fact that the defendants did not separately contest liability, but have reached some arrangement whereby they were jointly represented, the plaintiff is entitled to a joint and several judgment against all of the defendants in the sum of €67,500.
Pop v C Morton and Sons Ltd
[2016] IEHC 594
JUDGMENT of Mr. Justice Barr delivered on the 27th day of October, 2016
Introduction
1. This action arises out of an accident which occurred on 9th August, 2012, when the plaintiff, who was employed as a manager at the defendant’s shop premises in Ranelagh, suffered injury to her left knee, while pushing a trolley with goods in it past a sink, where she was caused to slip due to the presence of water on the floor surface. Her left leg shot forward when her foot came in contact with the water. Her leg did not strike against any object and she did not fall to the ground.
2. Liability has been conceded by the defendant and there is no plea of contributory negligence made against the plaintiff.
3. Special damages have been agreed in the sum of €2,200.
The Plaintiff’s Evidence
4. The plaintiff is a Romanian national and was born on 24th November, 1986. She started employment with the defendant in or about August or September 2008. At first, she had been employed as a shop assistant, but by the time of the accident, she had risen to the position of store manager. She is a married lady and has one son, aged two years and eight months.
5. On 9th August, 2012, the plaintiff was pushing a trolley with some goods in it past a sink in the shop premises, when her foot was caused to slip due to the presence of water on the floor surface. As already stated, her foot shot forward, but she did not strike her leg against anything and she did not fall, due to the fact that she had the trolley to hold onto.
6. In her evidence, the plaintiff stated that she felt immediate pain in her left knee. Her knee became quite swollen. Initially, she put ice on the knee for 15/20 minutes. She then went to see a local physiotherapist. He gave her treatment and also showed her exercises to do at home. He stated that if improvement was not made, it would be necessary for her to go to a doctor. In the initial period after the accident, she used crutches and also took analgesics and anti-inflammatory medication.
7. When her knee pain did not settle in the weeks and months following the accident, she came under the care of Mr. Gary C. O’Toole, Consultant Orthopaedic Surgeon, on 1st November, 2012. She went to see him privately, but when it transpired that she did not have medical insurance, he transferred her to his public list in St. Vincent’s University Hospital. She was seen there on 8th November, 2012. Mr. O’Toole decided that the plaintiff required an arthroscopic examination and an arthroscopy was carried out on 19th November, 2012. At this operation, she was found to have suffered a tear in her medial meniscus and a partial tear of her anterior cruciate ligament. The plaintiff stated that after the arthroscopy, she had physiotherapy treatment in St. Vincent’s Hospital on two or three occasions. She also took anti-inflammatory medication.
8. The plaintiff was reviewed in the out patients’ clinic on 13th November, 2012. At that time, she was reassured that everything should settle down with time and she was discharged from further follow up.
9. On 20th December, 2012, the plaintiff and her husband returned to Romania. This was not due to the injuries sustained in the accident, but was something which they had been thinking about for a considerable period. The plaintiff stated that she continued to have further physiotherapy treatment in Romania where she had approximately eight sessions of physiotherapy and her GP also gave her some physiotherapy treatment. She stated that while this treatment helped in reducing her pain, she still experienced pain on a constant basis, and it was particularly severe if she wore high heels or engaged in any long walking. The plaintiff had intended looking for work as a manager of a supermarket, doing work similar to that which she had done in Ireland, but she did not take up any such employment, due to the fact that she felt that she would not be able to manage standing for up to nine hours per day. Instead, she took up employment as a secretary in a taxi company.
10. The plaintiff became pregnant in March 2013. She stated that her leg continued to be painful and her knee became swollen during the pregnancy. She stated that she continued to receive physiotherapy treatment during 2013. After the birth of her son on 20th January, 2014, she was on maternity leave for approximately two years. She stated that she had difficulty looking after her son due to the pain in her knee. In particular, when her son became mobile and was able to walk and run, she was unable to run after him. Her knee became more painful at this time.
11. In cross examination, it was put to the plaintiff that when she saw the defendant’s expert, Mr. Hurson, in January 2014, she had only complained of intermittent pain. The plaintiff did not agree with this assertion and stated that at that time she was suffering from daily pain. However, some days would be worse than others. She stated that some of her symptoms became more severe as her pregnancy went on.
12. The plaintiff stated that in or about June 2014, she made an attempt to return to running. She stated that she had cleared this first with her GP, who had stated that it would be alright for her to do some running, but that she should not go on any long runs. The plaintiff stated that she had managed to do some short running on four days between Monday and Thursday, but that by the end of the fourth day, her knee was giving her considerable pain, such that she was not able to go running on the Friday.
13. After this attempt at returning to activity, the plaintiff then consulted two doctors in Romania. The first doctor advised that she should adopt conservative treatment, while another doctor stated that she needed a second arthroscopy of the left knee. The plaintiff also had an MRI scan taken at that time. This scan was taken on 10th June, 2014. It showed a partial tear of the anterior cruciate ligament and a small horizontal tear in the posterior horn of the medial meniscus.
14. It was put to the plaintiff in cross examination that when she saw Mr. Hurson again in March 2015, she had stated that she had no symptoms of knee pain on less active days. The plaintiff stated that this was not accurate, she stated that she had, in fact, said that the pain was much reduced on less active days.
15. It was further put to the plaintiff that on examination on that occasion, her knee had been found to be stable, without any swelling. It was put to her that she only complained of intermittent knee pain. Mr. Hurson was of opinion that the findings on the MRI scan were not caused by the accident. The plaintiff stated that all she could say was that before the accident she had never had any problems with her knee. The left knee pain only came on after the accident.
16. It was put to the plaintiff that in October 2015, she had told Mr. Hurson that on some weeks her knee was symptom free. The plaintiff did not agree that this was accurate. She stated that there was always some knee pain present, although on some weeks it was not that severe. It was put to her that on examination on that occasion, she had full movement of the knee and it was stable. Mr. Hurson was of opinion that she had recovered from the injuries to her knee which had been caused by the accident. He was further of the opinion that the plaintiff could have become symptomatic in her knee even without the accident. The plaintiff reiterated that all she could say was that she had never had any problems with her knee before the accident and she only had a problem with her left knee.
17. The plaintiff was reviewed by Mr. O’Toole on 13th October, 2015. At that time, she complained of pain in her left knee, which was exacerbated by going upstairs, but was tolerated coming downstairs. There was no history of the knee locking or giving way, although the plaintiff did say that the knee could feel loose at times. She was able to sleep at night, provided she used a pillow in between her legs to prevent it from any forced valgus stressing. If she twisted on the knee, she would feel pain medially. Her left knee pain was exacerbated by her pregnancy and associated with swelling within her knee. She felt that if she did any kind of exercise, the knee would swell up and become painful, this pain radiated behind the anterior aspect of her knee and could radiate laterally. If she stood for long periods of time, she would start to feel pain in the anterior aspect of her knee. Prolonged driving would cause the knee to become painful and swollen. Mr. O’Toole noted that the plaintiff had tried to get back to active pursuits, but that after three consecutive days of walking, she had found that the swelling was too much and had to refrain from continuing this activity. It should be noted that in her evidence, the plaintiff had stated that she had tried to get back to short running on the days in question.
18. On clinical examination, the plaintiff had a full range of motion in the knee. The knee joint felt stable to clinical examination, with a good end point to her anterior drawer test. She had some residual tenderness over the medial joint line. There was no effusion of the knee present at that time. She had stability of the knee in the coronal plain, but admitted to some pain over the medial aspect of the knee with forced varus stressing. She had an excellent range of motion of her hip and a good posterior tibial pulse. She walked with a normal gait.
19. In his medical report, Mr. O’Toole noted that the plaintiff was suffering ongoing sequelae in her left knee as a result of the accident on 9th August, 2012. She had undergone surgical intervention in Dublin for the injury. At the time of the arthroscopy, it was found that she had a tear of the posterior horn of the medial meniscus, as well as a small partial intra substance tear of her anterior cruciate ligament. The medial meniscus tear was debrided. The most recent MRI scan revealed evidence of a residual tear in this medial meniscus in the horizontal plain, as well as referring to the previously alluded intra substance tear of her anterior cruciate ligament. He noted that it was almost three years since the accident and the plaintiff was failing to achieve her pre-morbid status. Mr. O’Toole stated that unfortunately it would appear that the small horizontal tear, which normally would be relatively insignificant from a clinical point of view, was causing her some distress and blocking her ability to achieve the functional status that she desired. He felt that the current status of the knee pain would persist without further arthroscopic evaluation, he did not expect this pain to be alleviated via conservative measures.
20. In April 2016, the plaintiff had a further arthroscopy operation carried out in Romania. She stated that this had made her knee much better. Following this she had had physiotherapy treatment until the end of May or beginning of June 2016. She had required medication for approximately two weeks post-surgery. She stated that at the present time, her left knee is much better and she did not have any continuing problems with it. She confirmed that in or about June 2016, she and her husband had opened a coffee shop in her home town in Romania. She stated that she was able to cope with the demands of working in the coffee shop.
21. Evidence was given on behalf of the plaintiff by Mr. Gary O’Toole, Consultant Orthopaedic Surgeon. The essence of his findings from the examinations carried out in November 2012 and October 2015 have been set out above and will not be repeated here. In relation to the plaintiff returning to running on four consecutive days in June 2014, he stated that he would not normally advocate that a patient should go running four days in a row. He thought that that was a bit excessive. However, he stated that if a patient felt able for that level of activity, he would not prevent them doing so. He stated that the running would bring any pathology that remained in the knee to clinical attention. He stated that when he saw her in October 2015, she had said that after three days walking she had developed pain. He agreed that running would be more intrusive.
22. He stated that the MRI scan revealed the partial tear of the ACL, that they had seen at the time of the first arthroscopy. It was not something new. However, there was also a small horizontal tear of the horn of the medial meniscus. This was new, as they had treated a vertical tear in the meniscus at the time of the previous operation. He stated that there was no horizontal tear in the meniscus at the time that he had carried out his operation. He stated that if there had been a horizontal tear present in 2012, he would probably have left it alone. He stated that this horizontal tear could have been caused by attrition. It could have developed after the surgery and may not be related to the accident. However, there was degeneration evident on the MRI scans. It was put to the witness that Mr. Hurson was of opinion that the chondromalacia in the knee joint was unrelated to the injury in the accident. Mr. O’Toole stated that he agreed with Mr. Hurson that people can have chondromalacia in the patella, without being involved in an accident. To that extent he agreed with Mr. Hurson. However, Mr. O’Toole stated that while the trauma in the accident may not have caused the chondromalacia, it may have made something which was previously quiescent, into something symptomatic. In this regard, the witness pointed to the fact that the plaintiff had stated that prior to the accident in 2012, when she was 25 years of age, her knee had been pain free. The pain only related to her left knee and had only come on after the accident in 2012. Mr. O’Toole noted that Mr. Hurson shared his view that the accident may have rendered the chondromalacia symptomatic.
23. He stated that while he had not advised the plaintiff to have the second arthroscopic procedure, this was due to the fact that he was not her treating doctor by that time. However, in October 2015, he agreed with the proposal from the doctor in Romania that the plaintiff should have a second arthroscopy. He stated that when such surgery is carried out for chondromalacia patella, the results can be unpredictable. In this case, as the plaintiff appeared to have achieved a good outcome as a result of the surgery. Mr. O’Toole stated that when he saw her in September 2016, she was doing well after the second arthroscopy. Her symptoms had resolved and her knee was comfortable and had a full range of movement. This was a good outcome from the plaintiff’s point of view.
The Defendant’s Evidence
24. The evidence on behalf of the defendant, were the medical reports furnished by Mr. Brian J. Hurson, Consultant Orthopaedic Surgeon, which were handed into the court by agreement of the parties.
25. It is only necessary to summarise these reports very briefly, as the salient parts thereof were put to the plaintiff in the course of cross examination. When first seen by Mr. Hurson on 30th January, 2014, he noted that the plaintiff complained of intermittent aching pain on both sides of her knee cap after prolonged walking or standing. She was unable to return to the gym. She had a home exercise programme, which she performed regularly. Massage also helped her knee symptoms. The plaintiff had told him that she had had more severe symptoms in her left knee when she was pregnant. Examination revealed that she had two well healed arthroscopy scars. She had a normal range of knee movement. Forced movements were not painful. Her knee was stable in all directions.
26. Mr. Hurson was of opinion that the plaintiff had suffered a hyperextension injury to the left knee in the accident in August 2012, following which she complained of considerable pain and swelling. Her symptoms had persisted. She had had an arthroscopy carried out in November 2012. He was of opinion that she had made a very good recovery from her injury and her surgery. She had residual symptoms as outlined in the report. Examination was normal. He expected her symptoms to gradually resolve over the next six months. Thereafter, he anticipated that she would make a full recovery.
27. When reviewed on 12th March, 2015, Mr. Hurson noted that the plaintiff complained of intermittent aching in the anterolateral and anteromedial aspect of her left knee. She experienced these symptoms if she was doing a lot of stooping, bending or lifting of her one year old baby. He noted that she had no symptoms during a less active day. It should be noted that the plaintiff did not agree with the accuracy of this assertion. The plaintiff had told him that she had had an episode of severe symptoms in July 2014. Examination of the knee on that occasion was normal.
28. An MRI scan performed in March 2015, was reported to show that the plaintiff had a previous partial medial menisectomy and some signal abnormality in her anterior cruciate ligament, which was deemed to be stable. It was also reported that she had “femoral/patella dysplasia” with lateral tilting of her kneecap and a high riding kneecap with grade one chondromalacia of the lateral facet of her kneecap. It was noted that the Romanian doctor had recommended further arthroscopic surgery.
29. Mr. Hurson noted that the plaintiff complained of intermittent anteromedial and anterolateral knee pain when she was very active, particularly with activities which required stooping, bending and lifting her one year old child. He noted that when she was inactive, she was asymptomatic. Examination of her knee was normal. Examination of the kneecap showed that it was clinically normal i.e. it rides normally in her patella/femoral joint. Compression of the kneecap was not painful. Her MRI study was reported to show a high riding kneecap and some wear of the lateral aspect of her patella.
30. Mr. Hurson stated that her symptoms were consistent with a person with wear in her patella/femoral joint/chondromalacia. The high riding kneecap was not caused by the accident. It was also unlikely that the wear in her kneecap was caused by the accident. It was more likely that her natural patella/femoral configuration had led to her patella wear.
31. In a letter dated 8th June, 2015, Mr. Hurson stated that essentially the plaintiff had sustained a partial tear of her anterior cruciate ligament and a small tear of the posterior medial meniscus in the accident in August 2012. These injuries were consistent with the nature of the accident. She had made a very good recovery from these injuries. He stated that the ongoing intermittent aching in her knee, was nonspecific. Specifically, her knee was stable. She was not likely to suffer any adverse sequelae such as arthritis or instability as a result of her accident. He stated that she may have some on-going mild intermittent aching in her knee.
32. Mr. Hurson noted that she had no evidence of clinical patella/femoral instability. The high riding kneecap reported to be seen on her MRI scan was not caused by the accident. It was congenital. The mild patella/femoral chondromalacia would not have been caused by the accident. Any surgery to her kneecap that was proposed, was not considered to have resulted from her accident of August 2012. He stated that, as an aside, he was not sure what the indication for that surgery was.
33. The plaintiff was next examined by Mr. Hurson on 15th October, 2015. She continued to complain of intermittent aching in the distal anterior aspect of her kneecap tendon. This might also have been associated with aching pain behind her kneecap. She stated that she was fine in the morning. She may experience symptoms of pain after a long day’s activity. She stated that her knee would swell and become stiff at times. Her symptoms varied in intensity. Mr. Hurson stated that some weeks she was symptom free. It should be noted that the plaintiff did not agree with this assertion when giving her evidence.
34. Examination on that occasion was normal. She walked normally. There was no swelling in the knee. She had a full painless range of knee movement. Her knee was stable in all directions. She had a negative anterior draw sign. She had a negative Lachman test. She had normal strength in her quadriceps muscles. Her quadriceps muscle bulk was the same on both sides. There was some mild pain behind the kneecap on active extension against resistance.
35. Mr. Hurson stated that his opinion was the same as in previous reports. Essentially, the plaintiff had recovered from her partial anterior cruciate ligament injury and medial meniscus tear. Her knee was stable and was likely to remain so. She was not likely to suffer any long term problems as a result of a partial tear of her medial meniscus. The MRI scan had been reported to show that she had mild “grade one chondromalacia of her lateral patella with femoral/patella dysplasia”. Mr. Hurson stated that her symptoms were consistent with somebody with such dysplasia and chondromalacia. He stated that in all likelihood, she would have become symptomatic with this condition independent of whether or not she had an accident. Certainly, there was no indication for surgery. He stated that whether or not the accident brought forward these symptoms was moot.
36. Mr. Hurson’s final examination was on 29th September, 2016. He stated that the plaintiff had stated that since her second arthroscopy in April 2016, her symptoms had resolved entirely. She had some physiotherapy treatment following the surgery. Prior to that operation, she had been complaining of pain in the front of her knee and swelling after running. She also felt that her knee was unstable. Examination of the knee on that occasion was entirely normal. At that time, she was working in her coffee shop in Romania.
37. Medial records furnished from Romania recorded that she had had an arthroscopy on 11th April, 2016, which revealed “an injury to her internal meniscus, partial fracture of the cross ligament…femoral patella in congruence with lateralisation of the kneecap”. The record further stated that she had “sectioning of the lateral knee cap wing, trimming, lavage”. She was prescribed the patella centering knee orthosis.
38. Mr. Hurson was of opinion that the plaintiff had sustained a hyperextension injury to her knee in the accident of 2012. She was subsequently found to have sustained a minor injury to her anterior cruciate ligament and “small tear” of her medial meniscus. The symptoms related to these injuries fully resolved. When last reviewed, she had symptoms consistent with her documented chondromalacia patella i.e. some mild wear at the back of her kneecap, which was not likely to have been caused by the accident. However he was of the opinion that, the accident may have rendered it symptomatic. Since then her surgery had successfully addressed her patella problem. She was currently symptom free. In his opinion, the plaintiff had made a full recovery from her hyperextension injury.
Conclusions
39. At the time of this accident on 9th August, 2012, the plaintiff was a young lady of 25 years of age. She suffered an injury to her left knee, when her foot shot forward as a result of coming into contact with water on the floor surface. She did not fall to the ground, nor did she strike her leg against anything, nevertheless she suffered an injury to her left knee. Initially, this was treated conservatively with the application of an icepack followed by physiotherapy treatment. She was unfit for work for a period of two weeks. Thereafter, she returned to work whilst still on crutches and while still experiencing pain in her knee.
40. The plaintiff came under the care of Mr. Gary O’Toole, FRCS, who carried out an arthroscopy on 19th November, 2012. This revealed a tear in the medial meniscus and a partial tear of the anterior cruciate ligament. After the operation the plaintiff had physiotherapy treatment, at first in St. Vincent’s Hospital and thereafter, in Romania, when she returned there in December 2012.
41. The plaintiff stated that in early 2013, she had wanted to get back to work in a managerial role in a supermarket, but felt that she was unable to do so due to continuing pain in her knee. She felt that she would not be able for a long day standing on her feet. Accordingly, she took up employment as a secretary in a taxi company.
42. The plaintiff stated in evidence that she continued to experience constant and, at times, severe pain in her left knee. This was evident if she wore high heels, or if she should walk long distances. She continued to receive physiotherapy treatment.
43. She became pregnant in March 2013, and stated that she had further pain and swelling in her knee during the pregnancy. After the birth of her son in January 2014, she stated that she had difficulty minding her son and, in particular, she had difficulty stooping to pick up her child. In this regard, the court only had the evidence of the plaintiff. However, having observed the plaintiff give her evidence, I am satisfied that she is a truthful witness, who has not attempted to overstate her injuries either to the court, or to the doctors who treated or reported on her. In this regard, the plaintiff volunteered to the court that she had in June 2014, attempted to go back running. To this end, she had gone on short runs on four consecutive days. However, she was obliged to desist from this activity due to the onset of severe pain on the fourth day. The court is entirely satisfied that the plaintiff has given an honest account of this attempt to get back to activity. The court is satisfied that the plaintiff was motivated by a genuine desire to try to get better from her injuries.
44. The plaintiff’s symptoms continued during 2015, in the manner already outlined earlier in this judgment. In April 2016, the plaintiff had a further arthroscopy carried out in Romania. Fortunately, this treatment has brought about considerable improvement in her condition. Indeed, the plaintiff very candidly stated that as a result of this second operation, she has gone on to make a full recovery. She did not have any complaints in relation to her knee at the time this matter came on for hearing in October 2016. She freely admitted that she was capable of dealing with the demands of her work as the owner of a coffee shop.
45. There does not appear to be any great dispute between the medial experts as to the initial injury sustained as a result of the accident. That was a tear of the medial meniscus and a partial tear of the ACL. The issue which this Court has to determine is whether the plaintiff’s continued symptoms until the second arthroscopy in April 2016, were due to the accident in August 2012. Both doctors accept the findings as shown on the MRI scan, to the effect that the plaintiff continued to have the tear of the ACL, which had been seen on the previous arthroscopy, but had gone on to develop a second horizontal tear of the medial meniscus and also had evidence of chondromalacia in the patella. Both Mr. O’Toole and Mr. Hurson were in agreement that the chondromalacia was probably not caused by the accident, but was simply evidence of wear and tear in the knee joint. However, both doctors were of the view that this condition, which may have pre-dated the accident, and which was asymptomatic prior to that time, was probably rendered symptomatic as a result of the accident. At the end of his final report, Mr. Hurson stated that the documented chondromalacia patella was not likely to have been caused by the accident and went on to say “However, the accident may have rendered it symptomatic”. Mr. O’Toole agreed with this assessment and stated in evidence that the trauma of the accident may not have caused the chondromalacia, but may have rendered something which had been quiescent into something symptomatic. This would appear to be the case, as I accept the plaintiff’s evidence that she had not experienced any pain in her left knee prior to the accident.
46. In these circumstances, it seems to me that it is reasonable to conclude that the symptoms which the plaintiff experienced in her left knee from the time of the accident up until the date of the second arthroscopy in April 2016, were attributable to the injury sustained in the accident.
47. In arriving at the sum which I award for general damages, I have had regard to the guidelines laid down by the Court of Appeal in Payne v. Nugent [2015] IECA 268; Nolan v. Wirenski [2016] IECA 56; and Shannon v. O’Sullivan [2016] IECA 93. I have also had regard to the general guidelines as set out in the second edition of the Book of Quantum published by the Injuries Board. I award the plaintiff the sum of €45,000, as general damages for the injuries sustained in the accident. To this must be added the sum of €2,200 as agreed special damages giving an overall award of €47,200.
Shaughnessy v Nohilly
[2016] IEHC 767
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 21st day of December, 2016.
1. This is an action brought by the Plaintiff against the Defendants in trespass to the person and in negligence for damages for personal injuries and loss arising as a result of an alleged assault and battery which occurred on the 15th October, 2010, at or about the Shambles, Tuam, Co. Galway.
2. A full Defence has been delivered to the Plaintiff’s claim. That an incident took place on the date at or near the place in question is not in issue, however, the Defendants plead that it was they and a member of their family who were assaulted by the Plaintiff in response to which they acted in self defence and in defence of others using no more force than was reasonable. In addition, the Defendants seek to meet the claim on the grounds that the Plaintiff was guilty of negligence, including contributory negligence, and by way of defence founded on the maxim Ex Turpi Causa Non Oritur Actio.
Background
3. Having considered all of the evidence I am quite satisfied that the “incident”, as it is described in the Defence, was an affray in which the Plaintiff, the Defendants and other individuals were involved. There was an almost complete conflict of evidence between the parties as to the circumstances as well as the reasons for and the causes of the affray, moreover, each side called into question the credibility and character of the other.
4. I had an opportunity to observe the demeanour of the parties as they gave their evidence. The accounts given by them of what, why, when and where the events in question happened were, perhaps understandably in some respects, self serving and partisan; for reasons which appear later in this judgment none of them impressed as witnesses upon whose evidence alone the Court could rely.
5. In these circumstances I consider it necessary to a full understanding of the matters in question that they are placed in context and that features of the principal events common to the parties at the centre of the proceedings should be identified.
Locus in quo
6. Circular Road bisects Vicar Street on the northwest side of which it proceeds in the shape of a horseshoe before rejoining Vicar Street. This horseshoe shaped part of Circular Road is known as the Shambles and is habitually used as a car park. A Google map of the Shambles and adjoining streets was admitted in evidence. Just outside a building in the Shambles which makes up the corner of the Circular Road where it rejoins Vicar Street is a single storey public toilet above and to the right of which, on the wall of the building, is a sign which reads “The Sportsman’s Inn”. It was in the vicinity of this location and close to a restaurant also located in the Shambles, and then known as Lorenzo’s, that the affray commenced.
7. There are a number of shop premises located in the corner building. The first of these, which faces onto Vicar Street, is ‘Aidan’s Menswear’ opposite to which is ‘The Spice of Life’. It was in this area, shortly after the affray had ended, that the Plaintiff was found by the police lying up against a wall and unable to stand. Approximately 100 to 150 metres to the north of the Shambles there is a junction between Vicar Street and the Dublin Road; a Supermac’s restaurant occupies the northeast corner.
8. Traffic proceeding along Vicar Street turning right onto and continuing along the Dublin Road may in due course turn right onto Circular Road the eastern exit of which intersects with Vicar Street before going on to form the Shambles as previously described. This route was referred to in evidence as “going around the block”.
9. Tuam railway station (now disused) is located some distance down Vicar Street south of the Shambles. Shortly after 5.30 pm on the evening of the affray the Plaintiff and some friends went to a carnival which was being held on grounds adjacent to the old railway buildings. The group left the carnival around 9.30 pm and walked up Vicar Street to the vicinity of Supermac’s. In the course of this journey an interaction of an abusive nature occurred between some members of the group and Prionsias McComiskey when a car driven by his then girlfriend Charlene Nohilly, in which he was a passenger, drove past. Prionsias McComiskey and some of the group were shortly afterwards to become involved in the affray. Whether the Plaintiff and other members of this group or Prionsias McComiskey initiated what developed into the affray is one of the questions in issue.
10. Finally, it was agreed between the parties that:
(i) the distance from the Defendants’ home in Cummer to the ‘Shambles’ is 9.5 km;
(ii) the road passes through an area known as the ‘Rusheens’, and,
(iii) the distance from the ‘Rusheens’ to the ‘Shambles’ is 6 km.
Dramatis Personae
The Defendants:
11. The first Defendant is a farmer and car dismantler who resides on a family farm at Cummer, Co. Galway. Himself, his wife, their daughter Charlene and their son Alan, the second Defendant, live in a farmhouse on the lands adjacent to which is another dwelling occupied by another son of the first Defendant, Martin Nohilly Junior. It was suggested in the course of the Trial that he too was present and participated in the affray but I am not satisfied on the evidence that this was so.
12. Both Defendants were charged with serious criminal offences arising from the affray. Their trial on those charges, which took place in early 2012, collapsed; a new trial, which has since been listed from time to time, has yet to take place.
13. The first Defendant was convicted of a criminal offence in 1999. He appealed and was given a suspended sentence. The second Defendant is also facing other criminal charges, unrelated to those arising from the affray, which he denies. Neither of the Defendants called the Gardaí for assistance at the time of the affray or reported it afterwards nor did either subsequently seek to have the Plaintiff held criminally or civilly responsible for the actions alleged against him in the Defence delivered in these proceedings.
The Plaintiff
14. The Plaintiff was born on 16th September, 1991, and resides at 11 Black Acre, Tuam, Co. Galway. This is the address of the family home where he resides with his parents. The medical notes and records discovered by the Plaintiff and introduced into evidence establish that he has a propensity to exhibit violent behaviour, particularly under the influence of alcohol; in this regard entries for 1st January, 2012, 21st June, 2014, and 24th February, 2015, refer. The Plaintiff accepted that he had on one occasion been placed on a juvenile liaison scheme and that he had also been the subject matter of a public order offence in early 2014.
15. In relation to his propensity to violence the Defendants called Darren Keogh as a witness. He gave evidence that on the 15th August 2016, he had been struck by the Plaintiff on the side of his head with a bottle as a result of which he sustained injuries including a laceration which had bled profusely.
16. As to that his evidence was that he had made a complaint to the Gardaí some two months prior to the trial in these proceedings. However, it transpired that the Plaintiff has never been approached by the Gardaí in connection the complaint. Moreover, and notwithstanding his injuries, he accepted that he had yet to attend a doctor in respect of those. Furthermore, it also transpired that he had been asked by the second Defendant, whom he knew, to give evidence on behalf of the Defence. His explanation for a conversation with the second Defendant about the Plaintiff and the alleged assault was less than convincing and having had an opportunity to observe his demeanour while he gave his evidence I am not at all satisfied that he is a reliable witness.
17. In the course of the Plaintiff’s cross examination he was asked whether he knew an individual by the name of Newell and whether or not he had invited him to fight for money. The Plaintiff denied that he knew such a person and rejected the suggestion that he had issued an invitation to fight for money.
18. Mr. Newell was called as a witness on behalf of the Defendants. He gave evidence that following a hurling match on 22nd August, 2016, he had been spat at by the Plaintiff and that on 28th August, he had invited the witness to fight him for money.
19. A page from Mr. Newell’s Facebook account, dated 28th August, 2016, was subsequently admitted in evidence. The page contained two entries under the Plaintiff’s name each of which was accompanied by a photographic image of the Plaintiff; the second of these entries stated “I hear ur a good fighter will u fight for a few quid”. I accept that evidence.
20. During the course of the trial two heavily set individuals came into Court and occupied two front row seats on the side of the Courtroom facing the Plaintiff; they were plainly visible to him and to the Court. The Plaintiff instructed his counsel, Mr. Madden, S.C., that he considered the presence of these individuals was designed to intimidate him. When Mr. Madden brought this matter to the attention of the Court and explained the reasons why he was doing so the individuals concerned immediately got up and left.
21. While recognising that the presence and departure of these individuals could have been entirely innocent and co-incidental, this event occurred during a fiercely fought and controversial case where the parties called into question the credibility and character of the other thus making it more likely an event capable of bearing the sinister purpose suggested by Counsel.
The significance of these distances is relevant to the determination of some of the questions in issue.
The ‘Hood Rats’
22. Shortly after the affray ended the Gardaí attended at the Shambles and Vicar Street. Garda Costello was one of the investigating officers. He gave evidence, which the Court accepts, that the ‘Hood Rats’ were a gang of older teenagers in Tuam who regularly engaged in disorderly conduct which sometimes involved attacks on people at random and late at night. In his opinion any teenager in Tuam aged 18 or 19 at the time would have known about this particular gang; the name “Hood Rats” applied to the gang because its members all wore hoodie sweatshirts, often with the hoods drawn up over their heads.
23. The Plaintiff denied that he knew of or was a member of the ‘Hood Rats’. While I reject as highly unlikely his evidence that he did not know of the gang and although there was evidence on behalf of the Defence that several of those involved in the affray identified themselves as ‘Hood Rats’, I am not satisfied that the evidence supports a conclusion that the Plaintiff was actually a member of the gang.
Charlene Nohilly
24. Charlene Nohilly was born on the 7th October, 1993. She is the daughter of the first and the sister of the second Defendant. In October, 2010 she was living in the family home. She left school at sixteen and embarked on an agricultural college course in Mount Bellow; the course generally required her to work at home on the family farm. She was unhappy at school and had been the victim of bullying. On her evidence she had had a texting relationship with an individual identified as Alfie O’Mahony.
25. That relationship had a totally unsavoury ending; subsequently both he and others subjected Charlene Nohilly to threatening behaviour which caused her distress and upset; she lost weight became depressed and had to seek treatment from her GP. The effects of the abusive and bullying behaviour caused her parents and her brothers to become particularly protective towards her. A number of stratagems were employed to reduce or avoid unwelcome contact. One of these involved changing the sim card on her mobile; another was to avoid socialising in Tuam. I was impressed by the evidence which Charlene Nohilly gave in regard to these matters and having had an opportunity to observe her demeanour as she did so I am satisfied that it is truthful evidence and may be relied upon by the Court.
26. Against this background the Plaintiff fairly accepted the proposition put to him that if she was being attacked or was under threat that it would have been understandable that the Defendants, her father and brother, would come to her aid. For reasons which follow later I am satisfied that this was the most likely explanation for the arrival and participation of the Defendants in the affray.
Proinsias McComiskey
27. Proinsias McComiskey was born on the 11th May, 1990. A few months prior to 15th October, 2010, he had become involved in a relationship with Charlene Nohilly. He and Charlene had got on well together and they remained friends until approximately two months after the events giving rise to these proceedings when he emigrated ultimately settling in New Zealand.
28. He emigrated because he was unable to find employment as a construction worker when the construction industry collapsed following the global financial crisis. He did not make a complaint against the Plaintiff or anyone else involved in the affray nor did he give evidence at the trial, however, he was interviewed by the Gardaí in connection with complaints made by the Plaintiff, Eanna Donnellan, and Paul Cahill on foot of which the Defendants where charged with certain offences pursuant to the Criminal Justice Public Order Act 1994 and the Non-Fatal Offences Against the Person Act 1997.
29. Notes which were taken by the Gardaí in the course of their interview with Prionsias McComiskey were admitted in evidence. The interview took place on the 16th November, 2010; significantly, in my view, he was still in a relationship with Charlene Nohilly at that time and so remained until he emigrated.
30. Evidence was given that the Nohilly’s were hostile towards Alfie O’Mahoney because of the effects which his behaviour, including the threats made by him, had had on Charlene Nohilly and that this was known to Prionsias McComiskey, Eanna Donnellan, the Plaintiff and others. The Plaintiff accepted that he and Alfie O’Mahony were friends and had been in one another’s company on the evening of the affray.
Eanna Donnellan
31. He was a friend of the Plaintiff, was centrally involved in the affray and was interviewed by the Gardaí. A statement of the evidence to be giving by him in the criminal proceedings was introduced into evidence during the cross examination of the Plaintiff. Although he was called to the witness box, another witness was then interposed; he was not subsequently called to give evidence. In these circumstances the Defendants invited the Court to draw an adverse inference, namely, that he would not have corroborated the evidence given by the Plaintiff.
Garda Ian Kelly
32. Garda Ian Kelly was accompanied by Garda Declan Costello to the scene shortly after the end of the affray. A statement of the evidence to be given by him in the criminal proceedings was admitted in evidence although the Plaintiff had asserted that he had previously given false evidence about the Defendants. He was not called as a witness in this case.
33. In the course of these proceedings I made an order directing the production of telephone records relating to calls made or purported to have been made by Charlene Nohilly to the first Defendant on the 15th October, 2010. The Plaintiff’s solicitors had sought the same records on foot of a letter dated 23rd July, 2012, a date after the collapse of the first trial and before the retrial was first listed. That request proved fruitless. Vodafone declined to furnish any records without a Court order. By the time the Order was made it transpired that the records of calls on the date in question had long since been disposed of.
The Plaintiff’s Case
34. Having worked out in a gym the Plaintiff met up with a few friends in a park at approximately 5 pm. There were eight or nine people in the group which included Paul Cahill, Donnellan, Niall Quinn and Alfie O’Mahoney. On his evidence Plaintiff had consumed two or three cans of cider before he and the group moved on to the carnival which was being held in the grounds near the old railway buildings. Between 9.30 pm and 10 pm the Plaintiff and some of his friends, including Eanna Donnellan, Niall Quinn and Paul Cahill, left the carnival and walked the whole way up Vicar Street to Supermac’s where Paul Cahill met his girlfriend. On the way up Vicar Street a car owned by Charlene Nohilly and driven by Proinsias McComiskey passed them; as it did so he shouted something abusive and drove on. (The Plaintiff subsequently accepted that he may have been mistaken about the identity of the driver).
35. The Plaintiff and Eanna Donnellan walked back down Vicar Street from the direction of Supermac’s to Lorenzo’s take away in the Shambles. Just as they turned into the Shambles, and were passing the public toilet, Proinsias McComiskey jumped out of Charlene Nohilly’s car and attacked them. The Plaintiff says that he was struck a number of blows to the head with a baton by Proinsias McComiskey and that as he attempted to get away by running into Vicar Street he was knocked to the ground by the first Defendant in the vicinity of ‘Aiden’s Menswear’.
36. He tried to get up but was knocked across the street; altogether he was hit five or six times by the first Defendant with a bat to the right hand side of his body including to his right knee which he described as the worst blow following which he was beaten by the second Defendant with a hurley. At that stage a girl who had been with him earlier in the evening came down the road and stood in the way of the attack. The Gardaí were called and he was subsequently brought to hospital where he was admitted.
37. The Plaintiff did not know Charlene Nohilly personally but he had seen her walking around town with Alfie O’Mahoney some months prior to the affray. Whilst he had heard of the Defendants he didn’t know them personally but was aware of talk around the town that they were intent on beating up his friend Alfie O’Mahoney. As far as the Plaintiff was concerned he had no personal dealings with nor did he know why Proinsias McComiskey and the Nohillys would want to attack him other than because he was friendly with Alfie O’Mahony a former boyfriend of Charlene Nohilly. The attack was unprovoked.
The Defendant’s case
38. The Defendant’s case is that at around 10 pm Charlene Nohilly and Proinsias McComiskey left the Nohilly household to go into Tuam to get a large number of takeaway meals for the family. This involved ordering and collecting meals from Supermac’s and from Lorenzo’s in the Shambles. A group of seven or eight people, including the Plaintiff and Eanna Donnellan, shouted abuse at them when they attempted to come and collect the takeaway from Supermac’s. Eanna Donnellan threw something at the car. Charlene Nohilly drove on and phoned her father giving him an account of what had occurred. He told her to forget about collecting the takeaway from Supermac’s and to go and get the takeaway from Lorenzos. He told her that he would come in and collect the takeaway from Supermac’s. She did as she was asked and drove around the block into the Shambles where she parked near Lorenzos.
39. She had just come to a stop when the Plaintiff and Eanna Donnellan came around the corner from Vicar Street. They came over to the passenger side of her car and called on Proinsias McComiskey to get out. Although she begged him to stay where he was, he got out when the door of the car was kicked by the assailants. This behaviour frightened Charlene Nohilly who once again phoned her father. At that stage the Defendants were passing the ‘Rusheens’ on their way into Tuam.
40. Charlene Nohilly gave her father an account of what was happening; she was in a distressed state and begged him to come quickly. When the Defendants arrived at the scene Charlene Nohilly, who by then had also become involved in the affray, had been pulled by her hair to the ground by the Plaintiff; there were also a number of individuals fighting with Prionsias McComiskey. The second Defendant went to break up the fight; he struck a number of individuals with his fists.
41. The first Defendant went to the assistance of his daughter and in the process pulled one of the assailants away by grabbing his jumper at the back. He also grabbed a number of individuals to stop them getting involved in the fight. Neither of the Defendants had weapons of any sort nor did either of them strike the Plaintiff with a weapon. In so far as they were physically involved in a physical way that was in defence of themselves, their daughter and her boyfriend. The Plaintiff and Eanna Donnellan were joined by others who also started to fight with Prionsias McComiskey and the Defendants; some of these individuals identified themselves as ‘Hood Rats.
42. The most serious injury sustained by the Plaintiff was a dislocated fracture of his right knee. The Defendants contend that this was most likely inflicted by Proinsias McComiskey. He struck the Plaintiff all over his body with a bat whereas the Defendants were unarmed and could not possibly be responsible for that injury in particular.
43. Significantly, in my view, it was not suggested that any individuals, apart from the Defendants and Prionsias McComiskey, were involved in fighting with or were responsible for striking the Plaintiff. In a broad sense the cases made by the parties involve two scenarios which are that:
(i) The Plaintiff and others were the subject of an intended and concerted but unprovoked attack by the Defendants and Prionsias McComiskey; or
(ii) Prionsias McComiskey and Charlene Nohilly were attacked by the Plaintiff and others which in turn provoked a response by Prionsias McComiskey and Defendants which involved the defence of themselves and Charlene Nohilly.
Events common to the parties; corroborative and circumstantial evidence
44. Although there was a complete conflict between the parties concerning as well as the reasons for and the initiation of the affray, many features of the events were common to both cases in addition to which there was corroborative and circumstantial evidence which was of assistance to the Court in reaching a determination on the issues and which maybe summarised as follows.
45. Garda Declan Costello and Garda Ian Kelly attended at the scene shortly after the affray. They found the Plaintiff lying up against a wall on Vicar Street near the premises ‘Spice of Life’. He had a very severe injury to his right knee. It appeared to Garda Kelly that the Plaintiff had suffered a dislocation of the kneecap as a result of which he was unable to stand.
46. Although he had been hit a number of times whilst he was in the Shambles as a result of which he had fallen to the ground, the Plaintiff’s evidence was that he was able to get up and that having done so he had been able to run from the Shambles into Vicar Street to try to get away from his attackers. He made it to ‘Aidan’s Menswear’ where he was hit by the first Defendant with a bat, was knocked across the Street and once again fell to the ground where the second Defendant hit him a number of times with a hurley.
47. Following the affray the Plaintiff was taken to hospital where he was admitted under the care of Mr. Ken Karr, Consultant Orthopaedic Surgeon. Mr. Karr prepared medical reports which were admitted and he also gave evidence at the trial. The most serious injury was a displaced fracture of the right patella which necessitated surgical treatment. An open reduction and internal fixation was carried out by Mr. Karr on the 16th October, 2010.
Conclusion as to where the Plaintiff sustained his injuries
48. Having due regard to the medical evidence I am satisfied that whatever injuries the Plaintiff sustained as a result of blows delivered by Proinsias McComiskey they did not include a fracture of the right patella. If the Plaintiff had sustained a displaced fracture of his right patella at that stage it is, in my view, highly improbable that he would have been able to get up and run from the Shambles into Vicar Street where he was found by the Gardaí disabled to the point of being unable to stand. The undisputed evidence of the Gardaí concerning the Plaintiff’s inability to stand when they found him in Vicar Street is explained by the medical evidence.
49. On the medical evidence and the evidence of the Gardaí, which I accept, it is highly likely that the blow or blows which resulted in a displaced fracture of the Plaintiff’s right patella occurred while he was in Vicar Street, moreover, I am satisfied that the nature of that injury is consistent with a heavy blow or blows from an instrument such as a piece of timber, a bat or a hurley.
50. On his evidence, apart from pulling one or two individuals away from his daughter and preventing anyone else from getting at her, the first Defendant had no involvement in the affray at all. The second Defendant accepts that he was involved in the affray and exchanged blows with a number of individuals; he accepts that he may have kicked the Plaintiff in the back when he was on the ground. On their evidence neither Defendant was armed nor did either follow the Plaintiff into Vicar Street. I cannot accept that evidence. It is significant that although there was Defence evidence that other individuals, some of whom identified themselves as ‘Hood Rats, joined the affray there was no evidence that anyone other than the Defendants and Prionsias McComiskey were involved in an altercation with the Plaintiff nor was it suggested that anyone else was responsible for his injuries.
Reasons for and Initiation of the Affray
51. A feature of the events leading up to the affray which is common to the case on both sides is the occurrence of an interaction which arose when Charlene Nohilly drove her car past a group of individuals which included the Plaintiff, Eanna Donnellan and Alfie O’Mahony .
52. According to the notes of the Garda interview with Prionsias McComiskey, when he and Charlene Nohilly drove past the group to go to Supermac’s, Donnellan called him out and proceeded to throw something at the car, possibly a coin or a stone. Charlene Nohilly told the Gardaí that as she drove past members of the group started roaring and that Alfie O’Mahoney spat at the car.
53. The Plaintiff and Eanna Donnellan made statements in which they say that as the car drove past Prionsias McComiskey stuck his head out of the window and shouted something abusive at them. Whichever version is correct, whoever was responsible and whatever was said it is clear that an antagonistic interaction occurred as the car drove by the group.
Place where the affray commenced
54. Another feature of the events involved in the affray common to the evidence given on both sides concerns the positioning of the Plaintiff, Eanna Donnellan and Prionsias McComiskey at the passenger side of Charlene Nohilly’s car.
55. The Plaintiff’s evidence was that Prionsias McComiskey jumped out of the car with a pale coloured baton with which he was struck a number of blows as a result of which he fell to the ground near the passenger side door of the car.
56. In his statement Eanna Donnellan says that he witnessed this attack and responded by slamming the passenger door against Prionsias McComiskey in attempt to stop him hitting the Plaintiff.
57. Prionsias McComiskey’s interview notes contain a description of what happened. He told the Gardaí that as he opened the door of the car Eanna Donnellan and another person who was with him (most likely the Plaintiff) started kicking the door in on him. This account partly corroborates what is contained in Eanna Donnellan’s statement. However, there was evidence that the door was damaged externally and was subsequently repaired by a Mr. Sean Walsh of Cruaghwell, County Galway, at the cost of €450. That the door was forced against Prionsias McComiskey in one way or the other is also a feature common to both sides; whether by reason of the door being slammed or being kicked is, however, in issue.
Reason for the attack
58. The explanation proffered by the Plaintiff as to why he thought he had been attacked by Prionsias McComiskey and the Defendants was that he had been hanging around with Alfie O’Mahony, the former boyfriend of Charlene Nohilly. The attack on him was unprovoked and what the Defendants told the Gardaí and had pleaded in their Defence was a concoction.
59. There was a suggestion made on his behalf that a trap had been set for him by the Defendants and Prionsias McComiskey because they considered him and others, including Alfie O’Mahony, to be responsible for the effects which the threatening behaviour had had on Charlene Nohilly. The suggestion that a trap had been laid was hotly disputed. However, of some significance is the answer given by Prionsias McComiskey to the Gardaí when asked as to why he thought he had been attacked. He thought it was because he was going out with Alfie O’Mahony’s former girlfriend, Charlene Nohilly.
60. The previous relationship between Charlene Nohilly and Alfie O’Mahony, whom the Plaintiff admits was a friend who had been in his company that evening and the relationship between Charlene Nohilly and McComiskey extant at the time of the affray is another feature common to the explanations offered. On either explanation the previous relationship with Alfie O’Mahony, the consequences for Charlene Nohilly of the abusive behaviour which followed when it ended and her ongoing relationship with Prionsias McComiskey at the time is central to the reason for the occurrence of the affray.
61. Contrary to the suggestion that the Defendants had set a trap for the Plaintiff their evidence was that they responded to a plea for help and had gone to the defence of Charlene Nohilly and in the circumstances that they encountered her boyfriend who was being attacked.
Conclusions
62. Insofar as it was suggested that the initial reason for the first Defendant’s journey into town was to collect takeaways from the Supermac’s I consider that to be unlikely. The second Defendant gave evidence that after the first telephone call the first Defendant came out into the yard and asked him to come quickly. He did so and jumped into the first Defendant’s car where he was given an account of what had happened when his sister had driven past the group.
63. His understanding of the account was that something had been thrown at his sister’s car and that she had been hit. I consider the presence of the second Defendant in the first Defendant’s car to be much more consistent with a response to the account which was given to him than with a journey for the purposes of collecting a takeaway from Supermac’s.
64. As stated earlier I was impressed with the forthright manner in which Charlene Nohilly gave her evidence; I am satisfied that the consequences which flowed from the ending of her relationship such as it was with Alfie O’Mahoney and the subsequent threatening behaviour to which she was subjected ultimately necessitated medical treatment and resulted in her family becoming very protective of her; strategies were developed to shield her from unwelcome communications including withdrawal from socialising in Tuam and changing sim cards on her mobile phone.
65. The fact that she had been subjected to abusive behaviour from Alfie O’Mahoney and others and that she was going out with Prionsias McComiskey, is, on my view of the evidence, a much more likely explanation for the interaction which occurred as she drove past the group on her way to Supermac’s and for the initiation of the affray in the Shambles rather than the explanation offered by the Plaintiff that he was the victim of an unprovoked attack by Prionsias McComiskey and the Defendants because he was hanging around with Alfie O’Mahoney.
66. There were a number of inconsistencies between the evidence given by the Plaintiff and the statement of his evidence given for the purposes of the criminal proceedings. His answers to questions concerning his medical history arising from his medical notes and records, which had been admitted, were less than convincing.
67. The Plaintiff had a subsequent accident in December, 2010 as a result of which he again fractured his right knee. He gave an account of that accident in evidence which was different to the account recorded in the notes but which when put to him he accepted as being correct, namely that he had fallen when his father had pushed him in a temper. However, he was not prepared to admit the accuracy of a hospital note made the day after the affray to the effect that he had consumed five pints. His evidence was that he had consumed two or three drinks at most. His explanation for the entry was that the nurse must have been tired or had made a mistake.
68. The Plaintiff rejected any suggestion that he’d been party to an invitation to fight Mr. Newell for money or that he knew Mr. Newell. At the end of the trial Mr. Newell’s facebook page was admitted in evidence. This corroborated Mr. Newell’s evidence that there had been a communication between them involving an invitation to fight for money. The entry is dated the 28th August, 2016.
69. I accept the evidence of Charlene Nohilly that the affray was initiated by the Plaintiff and Eanna Donnellan when they entered the Shambles and came over to her car. I reject as unlikely the evidence of the Plaintiff that the affray commenced when Prionsias McComiskey jumped out of Charlene Nohilly’s car, bat in hand, and engaged in an unprovoked attack.
70. I am satisfied, on the balance of probabilities, that the affray commenced when the Plaintiff and Eanna Donnellan came over to Charlene Nohilly’s car, called on Prionsias McComiskey to get out and that in the process the passenger door was kicked causing damage that was subsequently repaired. On the evidence this is more likely and consistent with damage repair than with the door being slammed by Donnellan in on Prionsias McComiskey to stop the Plaintiff being struck.
71. That Prionsias McComiskey grabbed what has variously been described as a piece of timber or a baton as he was getting out of the car and that he used this to defend himself against the blows of Eanna Donnellan and the Plaintiff and that he struck the Plaintiff in the process causing him to fall to the ground is not in question. I am also satisfied on the evidence that what happened next was that the Plaintiff having had enough of the altercation proceeded to run out of the Shambles into Vicar Street.
72. There was conflicting evidence as to the period of time involved between the beginning and the end of the affray with estimates ranging from less than a minute to half an hour.
73. The significance of the time involved is that if the affray started and finished within a few minutes it would have been a physical impossibility for the Defendants to drive from the ‘Rusheens’ into the Shambles within that time. The first Defendant owns and was driving a turbo charged Lexus. If the Defendants received a telephone call from Charlene Nohilly in a distressed state asking for their help while they were passing the ‘Rusheens’ it is highly likely that the vehicle would have been driven, and I am satisfied was driven, at speed and that they would have been able to travel the six km involved within 10 minutes depending on traffic and traffic lights.
74. I accept Charlene Nohilly’s evidence that she made a telephone call to her father and that she gave an account of what had happened when she had driven past the group on her way to Supermac’s; it is highly likely that there would have been and the Court finds that there was an immediate response by the Defendants who drove into town.
75. It would have taken a few minutes for Charlene Nohilly to drive from the vicinity of Supermac’s around the block and back into the Shambles during which time the Defendants had left their home some 9.5 km distant. When the exchange of blows commenced and Prionsias McComiskey got out of the car, Charlene Nohilly phoned her father. I find that when she made that call the Defendants were already passing the ‘Rusheens.
76. On the Plaintiff’s evidence, having been involved in the affray from the outset, it was not until he ran away into Vicar Street that he first encountered the Defendants. In my view, the delayed arrival and subsequent involvement of the Defendants in the affray is consistent with the time it would have taken them to travel from the ‘Rusheens’ to the Shambles.
77. On their evidence the Defendants abandoned the car at the entrance to the Shambles in a way which ultimately caused traffic to back up. That action is more likely consistent with a father and son answering the distress calls for help from Charlene Nohilly than with a carefully conceived plan to set a trap for the ‘Hood Rats’ or anyone else associated with them.
78. The question remains as to whether the Defendants were involved in what amounted to a vicious beating of the Plaintiff as he sought to escape from the Shambles.
79. There are a number of matters arising from the evidence given by and on behalf of the Defendants which gives rise to concern about the veracity of certain aspects of that evidence and to which I now turn.
80. The second Defendant accepted that he was involved in a physical altercation with a number of individuals in the course of the affray and that he may well have kicked a person now identified as the Plaintiff in the back. He denied that he was armed with a hurley or any other kind of weapon or that he used it to strike the Plaintiff or anyone else. I reject that evidence.
81. According to Prionsias McComiskey’s interview notes he didn’t see the Defendants being involved in the affray, however, he saw the second Defendant holding what he described as a stick which he described as being like the handle of a yard brush. Eanna Donnellan in his statement of evidence identified the second Defendant as being the person who hit him several times with a hurley.
82. The first Defendant told the Gardaí that the affray lasted about fifteen minutes and that some of those involved ran off towards Supermac’s. One individual was described as lying on the ground up towards the exit. (from the Shambles onto Vicar Street). Their evidence was that after the affray ended they left the area and that when they got home there was no discussion about what had just happened; they had tea and had all got back to normal. I find that to be highly unlikely and do not accept that evidence. In this regard although not repeated the evidence she gave, Charlene Nohilly told the Gardaí during interview that she had spoken to her mother when she got home and that there had also been a family discussion that evening which included Prionsias McComiskey and the Defendants.
83. The first Defendant gave evidence that while he accepted Prionsias McComiskey was present at the scene, he did not see him. I don’t find that credible. In the account which she gave to the investigating Gardaí, Charlene Nohilly described a number of individuals crowding in around the Defendants and hitting them. This is inconsistent with the evidence of the first Defendant that he stayed with Charlene Nohilly at the car and with the evidence of the second Defendant’s that the first Defendant had no involvement in the affray.
84. In the course of his evidence the second Defendant described Prionsias McComiskey as a truthful person. Given his significant involvement in the affray and his opinion as to the truthfulness of Prionsias McComiskey and having regard to what both Prionsias McComiskey and Eanna Donnellan told the Gardaí, I reject the second Defendant’s evidence that he was unarmed, moreover, I find that the stick which Prionsias McComiskey said he saw the second Defendant holding was in all likelihood a hurley which he used to strike the Plaintiff.
85. On the Defendant’s evidence a number of individuals ran into Vicar Street. The Plaintiff said he ran out of the Shambles into Vicar Street in order to get away. Eanna Donnellan and Prionsias McComiskey ended up fighting in the Shambles down near Lorenzos. There was no evidence given or suggestion made by the Defendants that the Plaintiff was involved in a physical confrontation with another third party. The only evidence of a physical confrontation involving the Plaintiff is with Prionsias McComiskey and the Defendants, accordingly, and having due regard to the conclusions already reached concerning the disabling affect of the knee injury on mobility and the place where he was found by the Gardaí and the fact that Prionsias McComiskey ended up fighting with Eanna Donnellan near Lorenzo’s, I am satisfied that the individuals whom the Plaintiff encountered as he ran from the Shambles were in all likelihood the Defendants.
86. I am not satisfied that the evidence of the Defendants can be relied upon, moreover, having regard to the circumstantial and corroborative evidence, the findings made and the conclusions reached, I consider it highly probable and understandable in circumstances where they were responding to calls from Charlene Nohilly, towards whom they had become very protective and whom they knew to be in a distressed state, that when the Defendants arrived at the Shambles and witnessed an affray in which they knew that she was in some way embroiled, that they were armed and that it was they who inflicted the injuries sustained by the Plaintiff in Vicar Street.
Submissions
87. Written and oral submissions were made on behalf of the parties; these have been read and considered by the Court and will not be summarised here. Suffice it to say that in so far as matters of law are concerned the case made on behalf of the Defendants comes under the following headings:
(i.) The defence of the use of force in defence of oneself or another person;
(ii.) The principle of ex turpi causa non oritur actio;
(iii.) The consequences in relation to the assessment of damages, if any, of the failure on the part of the Plaintiff in permitting a claim against a concurrent wrongdoer, Mr McComiskey, to become statute barred.
(iv.) The consequences of any finding that the Plaintiff’s injuries were inflicted in Vicar Street rather than the Shambles, being the locus in quo pleaded by the Plaintiff.
(v.) The consequences of the Plaintiff’s failure to call a witness to corroborate his evidence. I shall deal in the first instance with this question.
88. It was submitted by the Defendants that, in reaching a determination on the facts and resolving the conflict of evidence between the parties, the Court should draw an adverse inference from the failure on the part of the Plaintiff to call Eanna Donnellan as witness. In this regard the Defendants rely upon the decisions in Whelan v. AIB [2014] 2 I.R. 199 and Bergin v. Walsh & othrs [2015] IEHC 594. The Plaintiff submitted that the facts and circumstances of the case did not admit the drawing of such an inference.
89. The adverse inference which the Court has been invited to draw is that Eanna Donnellan, who was present throughout the events with which these proceedings are concerned, would not have given evidence corroborative of the evidence given by the Plaintiff.
90. There was some dispute in the course of oral submissions as to why Eanna Donnellan was not in fact called as a witness. There was a question raised in the course of argument at the close of the case as to whether more than one schedule of witnesses had been served by the Plaintiff and if there were several, whether one of these had not included Eanna Donnellan on foot of which an entirely understandable objection had been taken by Counsel for the Defendant’s to his being called to give evidence. I do not consider it necessary to resolve that matter since I am quite satisfied that a schedule did exist on which Eanna Donnellan’s name appeared, moreover, I am also satisfied that he was present in Court and was called to the witness box to give evidence on behalf of the Plaintiff when another witness was interposed.
91. Eanna Donnellan’s statement of the evidence to be given by him in the criminal proceedings against the Defendants was handed into the Court by the Defendants without objection during the cross examination of the Plaintiff who was then cross examined on matters contained in it.
92. In these circumstances I do not accept the submission made on behalf of the Defendants that what was relevant in determining the issue was that he was not called and in particular that no distinction was to be drawn between a situation where the witnesses was not present in Court nor called and a situation where the witness was present and was called but another witness was interposed.
93. The law on the question which arises for consideration here can be succinctly stated thus: If there is a reason to explain the absence of the witness which satisfies the Court then an adverse inference which might otherwise arise from the absence may not be drawn. See Fyffes PLC v. DCC PLC [2009] 2 IR 417 at p. 507 and Whelan v. AIB [2014] 2 I.R. 199.
94. In the circumstances of this case, and apart altogether from any disagreement as to whether or not Eanna Donnellan did or did not appear on a schedule of witnesses served on behalf of the Plaintiff, once his statement was introduced into evidence, handed into the Court to be read without objection and used to cross examine him, the Plaintiff is, in my view, perfectly entitled to rest on that should he so decide and so he did.
Permitting proceedings to become statute barred
95. It was submitted on behalf of the Defendants that Prionsias McComiskey was a concurrent wrongdoer against whom the Plaintiff had failed to institute proceedings either in negligence or for assault and battery within the relevant limitation periods, namely (a) two years from the accrual of the cause of action in respect of negligence and breach of duty pursuant to s. 3 of the Statute of Limitations ( Amendment) Act 1991 as amended by s.7 of the Civil Liability and Courts Act 2004, and, (b) six years in the case of the accrual of the cause of action in respect of trespass to the person under s. 11 (2) (a) of the Statute of Limitations Act 1957 .
96. Having failed to institute proceeding in respect of either cause of action the Defendants submit that for the purposes of determining contributory negligence under s. 34 of the Civil Liability Act 1961,( the Civil Liability Act), the Plaintiff should be identified with and made responsible for the acts of Prionsias McComiskey pursuant to s. 35 (1) (i) of that Act.
97. The Plaintiff gave evidence that he sought to make Prionsias McComiskey civilly and criminally responsible but that had proved not to be possible because he had emigrated to New Zealand. I took it from this that no protective writ was ever issued. In any event it was submitted on behalf of the Plaintiff that Prionsias McComiskey and the Defendants were not concurrent wrongdoers and the Defendants never sought to join him as a third party.
98. Section 34 of the Civil Liability Act, provides for the apportionment of liability in the case of contributory negligence. Section 35 (1) (i) provides for the purposes of determining contributory negligence that
“where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;”
99. Chapter 1 of the Civil Liability Act provides for the liability of concurrent wrongdoers. Section 11 (1) defines persons who are concurrent wrongdoers:
“(1) For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this Part called the injured person or the plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.
(2) Without prejudice to the generality of subsection (1) of this section—
(a) persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of joint duty, conspiracy, concerted action to a common end or independent acts causing the same damage;
(b) the wrong on the part of one or both may be a tort, breach of contract or breach of trust, or any combination of them;
(c) it is immaterial whether the acts constituting concurrent wrongs are contemporaneous or successive.
100. It is apparent on the face of the provision that it is an essential requirement for the purposes of s. 35 (1) (i) that the damage suffered by the plaintiff “…was caused by concurrent wrongdoers…”.
101. There can be no doubt on the evidence but that the Plaintiff was struck several times by Mr. Prionsias McComiskey with a piece of timber shortly after the initiation of the affray. In her interview notes with the Gardaí Charlene Nohilly described Prionsias McComiskey knocking the Plaintiff to the ground and hitting him forcibly five or six times with a piece of timber from the stomach downwards.
102. The Plaintiff told the gardaí that he had been hit a number of blows to the head as a result of which he fell to the ground and that at that stage he sustained a number of blows to his right side, on his back, legs and on the back of his head. Prionsias McComiskey told the Gardaí he had hit the Plaintiff at shoulder level. The Plaintiff confirmed in evidence that he feared for his life and that having got up he ran from the Shambles into Vicar Street. That the Plaintiff sustained injuries to his shoulder, back, legs and the back of his head is not in question on these descriptions of what happened to him in so far as they concern the actions of Proinsias McComiskey. The question, however, is whether these injuries and the injuries which he sustained at the hands of the Defendants in Vicar Street constitute “…the same damage…”
103. In circumstances where the damage may have been caused by the acts of any one of several wrongdoers or as a result of a combination of wrongdoers where it is possible that each act whether simultaneous or successive could have caused the same damage, even if to a different degree, then the tortfeasors are concurrent wrongdoers. See Lindsay v. Finnerty, Kelly & the MIBI [2011] IEHC 403.
104. Subject to the provisions of ss. 14, 38 and 46, s. 12 of the Civil Liability Act provides that concurrent wrongdoers are each liable for the whole of the damage in respect of which they are concurrent wrongdoers.
105. Where the acts or omissions of two or more tortfeasors cause independent and different damage each is liable solely for the damage caused by that tortfeasor. The decision in McCarron v. O’Brien and Bradley and McCarron v. MIBI (Unreported, High Court, Butler J., 7th November, 2001), which is known to the Court, illustrates the point. The plaintiff was a cyclist hit by a car driven by the first Defendant on a dark country road. Minutes later, having regained his feet, the Plaintiff was hit by another car the driver of which remained unidentified and untraced. As a result of that collision the Plaintiff was thrown across the road and ended up lying on the opposite carriageway where he was struck by a motor car driven by third Defendant. The Plaintiff suffered multiple very serious identifiable and different injuries as a result of each collision. Butler J. held that the drivers were not concurrent wrongdoers and apportioned damages in respect of the injuries and loss attributable as a matter of probability to each driver.
106. Where independent items of damage of the same kind are caused by two or more wrongdoers who are not concurrent wrongdoers, and therefore not liable for the whole of the damage suffered by the Plaintiff, the extent of the liability of each for the damage caused maybe apportioned to the wrongdoer concerned . Section 12 (2) of the Civil Liability Act provides: “Where the actions of two or more persons who are not concurrent wrongdoers cause independent items of damage of the same kind to a third person or one of their number, the court may apportion liability between such persons in such manner as may be justified by the probabilities of the case, or where the plaintiff is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.”
Conclusion
107. Having found that the Plaintiff was able to get up and run from the Shambles into Vicar Street notwithstanding the blows delivered by Prionsias McComiskey and that it was a result of a blow or blows delivered by one or other or both of the Defendants in Vicar Street which resulted in the most serious of the Plaintiff’s injuries, a displaced fracture of the right patella, the Court finds that Prionsias McComiskey and the Defendants are not concurrent wrongdoers in respect of that injury.
108. As to the remainder of the injuries, given the nature and location of the blows to his body I am satisfied that a combination or anyone of the several blows delivered by Prionsias McComiskey and the Defendants caused those injuries. Having regard to the provisions of s. 11 (2) (a) and (c) of the Civil Liability Act I am satisfied that the Defendants were involved in a concerted action to a common end and that it is immaterial for present purposes that the blows delivered by them succeeded those delivered by Prionsias McComiskey, accordingly, in respect of those injuries the Court finds that Prionsias McComiskey and the Defendants are concurrent wrongdoers.
Apportionment
109. Having regard to the descriptions of the beating of the Plaintiff by Prionsias McComiskey and the Defendants and to the medical evidence so far as it goes in connection with the injuries in respect of which they are concurrent wrongdoers, the Court considers it appropriate in the circumstances that responsibility should be apportioned equally between them.
Identity
110. It follows from the forgoing and having regard to the fact that the Plaintiff’s causes of action against Prionsias McComiskey for the injuries and loss in respect of which he is a concurrent wrongdoer have become statute barred, that for the purposes of these proceedings the Court deems the Plaintiff responsible for and is to be identified with the actions of Prionsias McComiskey under s. 35 (1) (i) of the Act.
Assault and Battery; self defence and defence of another
111. Counsel on behalf of the Defendants, Mr. Kiely S.C. submitted that with regard to the defence of self defence and the defence of others that the Defendants did no more than was permitted by law in the circumstances of the case the circumstances being those where a father went to the aid of his daughter and a brother to the aid of his sister whom both knew was in some way embroiled in a violent physical attack on her boyfriend and as a result of which she was in a frightened and desperate state.
112. It was submitted on behalf of the Plaintiff that the amount of force used by the Defendants in responding to the situation was disproportionate and excessive and went far beyond what was permissible. Prionsias McComiskey and the Defendants were armed with implements which they used with excessive force to beat unarmed individuals including the Plaintiff.
113. Commenting on the defence in Dullaghan v. Hillen [1957] I.R. Jur. Rep 10 His Honour Judge Fawsitt stated:
“When one is wrongfully assaulted it is lawful to repel force by force, provided that no unnecessary violence is used. How much force and what kind is reasonable and proper to use, in the circumstances, is a question of fact. Resistance must not exceed the bounds of mere defence and prevention or…the force used in defence must be not more than commensurate with that which provoked it.”
114. The adage that each case must be decided on its own facts and circumstances is particularly apposite in an action involving assault and battery. It was submitted on behalf of the Defendants that where there is a risk of serious personal violence considerable force may be used by a person in defence of himself or another provided that the actions taken do not constitute reckless disregard for the safety of the assailant. See Ross v. Curtis (Unreported, High Court, Barr J., 3rd February, 1989).
115. It was also submitted that in considering the defence of self defence the defendant’s state of mind was relevant. In all the circumstances given the situation which confronted the Defendants at the time of the actions taken by them which they honestly thought to be necessary in the anguish of the moment the question or test was whether the Defendants believed on reasonable grounds that it was necessary in self defence to do what they did. See New South Wales v. McMaster [2016] 328 ALR 309 and Cross v. Kirkby [2000] EWCA Civ 426.
116. Whatever about the actions of Prionsias McComiskey who used a baton to defend himself when he was attacked by Eanna Donnellan and the Plaintiff, I am satisfied that by the time the Plaintiff encountered the Defendants in Vicar Street he was fleeing the affray in the Shambles and was no longer a threat to Charlene Nohilly or to Prionsias McComiskey. He was at all times unarmed and I am satisfied that by the time he entered Vicar Street that the Defendants were not under threat of attack from him or otherwise in a position where it was necessary to defend themselves. Whatever occurred or might be said about the affray or any involvement in it which occurred around the car in the Shambles, the actions of the Defendants in Vicar Street could not have been grounded on nor could they have held a reasonable belief in the heat of the moment that what they did there was necessary either in defence of themselves or others including Charlene Nohilly and Prionsias McComiskey.
Conclusion
117. I accept the submissions made by the Plaintiff that even if it could be said that it was employed in self defence, the force used in the circumstances, involving as it the Defendants striking the unarmed Plaintiff with weapons, was both disproportionate and excessive. In my judgment the events which happened in Vicar Street were more consistent with an act of retribution than with self defence or defence of others and constituted an assault and battery.
Consequences of a finding that the Assault and Battery occurred in Vicar Street
118. The case pleaded by the Plaintiff was that the assault and battery occurred “…at or about the Shambles, Tuam, County Galway.” Having given evidence and sworn an affidavit of verification in the course of the proceedings it was submitted on behalf of the Defendants that the Plaintiff was confined by this pleading to the events which occurred in the Shambles. The consequences of a finding by the Court that the events in respect of which he brings these proceedings occurred in Vicar Street were, it was argued, that those events were extraneous to the case pleaded and on foot of which the Plaintiff could not recover against the Defendants. Had the Plaintiff wanted to make a case against the Defendants arising out of events in Vicar Street then it was necessary that such be expressly pleaded. The Plaintiff argued that there was no merit in the submission and that the description of the locus in the pleadings was sufficiently wide to include Vicar Street as it was in the immediate vicinity of the Shambles.
119. When used in conjunction with all manner of identified topographical features premises and places the phrase “at or about” or “in or about” means the immediate location as well as the vicinity of the feature, premises or place. That the vicinity of an identified place or dwelling house could be an extensive area see Re: Labron (29 S.J. 147) where Kay J. held that a residuary bequest of personal property “in or about” a dwelling house included personal property on the 40 acres of land in the vicinity of the house.
Conclusion
120. I accept the submission of the Plaintiff and find that the use of the phrase “at or about” in conjunction with the Shambles, Tuam, County Galway, includes property or places in the vicinity of the Shambles and therefore sufficient to encompass within the proceedings the events which occurred in Vicar Street.
Ex turpi causa non oritur actio
121. Under the old common law it was a defence to an action for damages if the cause of action was founded upon an immoral or illegal act of the Plaintiff. In Holman v. Johnson (1775) 1 COWP. 341 Lord Mansfield commenting on the defence stated “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act if from the plaintiff’s own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country then the court says he has no right to be assisted. It is upon that ground the court goes: not for the sake of the defendant but because they will not lend their aid to such a plaintiff.” See also Wasson v. Chief Constable, Royal Ulster Constabulary [1987] N.I. 420 at p 433 et seq.
122. This broad statement of the law has long since been refined in terms of application though where applicable can and does result in the proceedings being dismissed. The defence based on the maxim ex turpi causa is founded on public policy and so in an appropriate case the Court itself may raise the issue even if it is not expressly pleaded by the defendant. See Anderson v. Cooke [2005] 2 IR 607 at p 615. The onus of proof rests on the defendant. Even where the defence is established it does not follow that public policy requires the proceedings be dismissed rather the contrary is the case the requirement being that the suit should be entertained and decided on its merits. See Cakebread v. Hopping Brothers (Whetstone) Ltd [1947] Q.B. 641 at p 654, where in the context of the Factories Act 1937, it was held that such a defence would be inconsistent with the policy intention of Parliament expressed in the Act. See also Anderson v. Cook and Carr v. Olas and another [2012] IEHC 59. As was observed by the President in Anderson, the maxim in modern times is more likely to have application in circumstances such as that of joint illegal activity.
123. Whatever about the effectiveness of the maxim as a defence at common law prior to 1961 it is clear that the provisions of s. 57 of the Civil Liability Act are relevant to developments in the law which have occurred since that provision was enacted and which provides:
“(1) It shall not be a defence in an action of tort merely to show that the plaintiff is in breach of the civil or criminal law.”
124. The Plaintiff places particular reliance on this provision and submits that on the facts and in the circumstances of this case the maxim ex turpi causa has no application, accordingly there is no basis for the defence. In this regard it was argued that the Plaintiff was never questioned, arrested or charged with any offence nor was there any allegation or complaint of wrongdoing made against him or against Eanna Donnellan arising form the affray; no breach of the civil or criminal law was established by the Defendants.
125. Having regard to the provisions of Article 40.3.2 of the Constitution it was argued that the Plaintiff was entitled to the protection of the law in relation to any assault to his person and was entitled to maintain a claim for compensation in respect of any consequent injuries, if any, sustained as a result of that assault. Even in circumstances where the Plaintiff initiated the affray, and therefore provoked what followed so as to give rise to the defence being pleaded, it could not operate to defeat or otherwise provide a defence to the claim which arose as a result of the assault and battery which the Defendants visited on the Plaintiff.
126. It is quite clear from decisions such as Anderson and Cooke and Carr v. Olas that s. 57 (1) of the Civil Liability Act modified, but did not abolish the defence based on the Maxim of ex turpi causa.
127. In The People v. Barns [2007] 3 IR 130 the Court of Criminal Appeal held that insofar as the common law had permitted the householder to kill a burglar merely because he was such, this rule had not survived the enactment of the Constitution in view of the State’s obligation under Article 40.3.2 to protect the life of all citizens. Similarly a rule of tort law which permitted a defendant to avoid tortious liability merely because the victim of the tort involved had committed an unlawful act would not be consistent with the duty of the State under that Article to vindicate the person. As was observed by Hogan J. in Carr the common law must, where necessary, be remoded and refashioned in order to reflect and accommodate itself to the precepts and values of the Constitution and that it is against these that the provision in s. 57 of the Civil Liability Act is to be considered.
128. In Hackett v. Calla Associates Ltd [2004] IEHC 336 Peart J. considered that the modern day ex turpi causa principle is confined to those cases where the conduct of the Plaintiff had been “so egregious that he ought not to be allowed recover damages for an injury sustained which results from that behaviour”.
129. Even without the benefit of the precepts and principles deriving from Article 40.3.2 of the Constitution it is clear from the decisions in other common law jurisdictions that a complete bar to recovery by way of defence on the basis of the maxim ex turpa causa should only be permitted in very limited circumstances. See Wasson v. Chief Constable, Royal Ulster Constabulary [1987] N. I. 420 and Hall v. Herbert [1993] 2 S.C.R. 159.
130. The basis and exercise of the power to bar recovery in tort on the ground of the Plaintiff’s immoral or illegal conduct is founded in the duty of the Court to preserve the integrity of the legal system; the exercise of that power should be confined to circumstances in any given case where concern for that matter arises. In the context of a civil suit for damages such would arise in circumstances where the party bringing the proceedings, if permitted to recover would, in effect, profit from illegal or wrongful conduct. However, as MacLachlin J. in her judgment in Hall stated:
“It follows … as a general rule, the ex turpi causa principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation, and will not seek damages as profit for illegal or immoral acts.”
131. The decision in Wasson, illustrates the point. The plaintiff had been a participant in a serious riot as a result of which he was subsequently charged with and convicted of riotous behaviour. In the course of the riot a police officer fired a plastic baton round which struck the plaintiff in the head causing him serious injury in respect of which he issued proceedings against the Chief Constable for damages for assault and battery. The defence raised was similar in several respects to the defence in this case, namely that the force used was reasonable was in self defence, defence of other police officers and that the plaintiff was guilty of contributory negligence. Hutton J., held that the defendant had failed to discharge the onus of proof to establish that the firing of the baton round was justified in self defence or in defence of other police officers or in the prevention of crime or that the use of such force was reasonable in the circumstances but held the plaintiff to be guilty of contributory negligence to a high degree of fault, namely, 50 %.
Conclusion
132. While the events which occurred in the Shambles cannot be ignored or disassociated from what happened to the Plaintiff in Vicar Street, having regard to the findings already made and to the authorities relied upon, it would be wholly wrong to bar the Plaintiff’s claim on the basis of this particular plea. Instead, it seems to me that in the circumstances of this case the approach adopted in Wasson, in Hackett, and in Gammell v. William Doyle trading as Lee’s Public House & Anor [2009] IEHC 416 commends itself and is appropriate; accordingly, this aspect of the defence should be dealt with by way of and as a matter of contributory negligence on the part of the Plaintiff.
Contributory negligence
133. The initiation of the affray by the Plaintiff and Eanna Donnellan provoked a chain reaction which ended in the assault and battery of the Plaintiff in Vicar Street. The initiation of the affray by the Plaintiff and Eanna Donnelan was intentional, deliberate and led to the consequences which gave rise to these proceedings for which in my judgment the Plaintiff must share responsibility.
134. Whatever may have been the law before the passing of the Civil Liability Act, there is no rule of law that contributory cannot be relied upon as a defence in an action for trespass to the person. The definition of “wrong” in s. 2 (1) of that Act includes a crime and a wrong which is intentional, accordingly, it follows from the provisions of s. 34 of the Act, that, in appropriate circumstances, the Court may find a plaintiff guilty of contributory negligence in an action brought for assault and battery.
135. In determining the reduction in the Plaintiff’s damages attributable to contributory negligence the criterion to be adopted is that of blameworthiness and not that of causation. See Iarnród Éireann v. Ireland [1996] 2 ILRM 500 (SC). The Court is not concerned with the causative potency of the causative contributions of the Defendants on the one hand and the Plaintiff on the other to the injuries and loss rather it is the blameworthiness of the causative contributions to the happening of the event giving rise to the injuries and loss which is the basis for the apportionment, the blameworthiness being measured by reference to what a reasonable man or woman would have done in the circumstances.
136. Nothing in the initiation or participation in the affray by the Plaintiff excuses the actions of the Defendants, however, in the circumstances of this case the Plaintiff must carry, to a significant extent, the blame for what ultimately led to the unlawful use of force by the Defendants which resulted in his injuries. In weighing the degrees of fault to be apportioned on the basis of the blameworthiness of their respective contributions to the damage the fact that the Plaintiff was in the process of extricating himself from the affray at the time when he encountered the Defendants, who were intent on striking him, has to be taken into consideration, accordingly, the Court will apportion fault to the extent of 40% against the plaintiff and will reduce the damages to be awarded accordingly.
The Injuries
137. The Plaintiff suffered multiple soft tissue injuries in addition to a displaced fracture of his right patella. The emergency department notes of the 16th October, 2010, relating to the Plaintiff’s admission and treatment in UCH hospital show that in addition to the complaints of pain swelling and pain referable to the main injury to the knee, tenderness and pain was noted over the left shoulder in the region of the left acromio clavicular joint, over the thoracic vertebrae at T7, T8 and T9. He also had a one inch laceration in his scalp around which there was some swelling and tenderness. There was no loss of consciousness, headache, visual disturbance, nausea, vomiting, neck or lower back pain recorded.
138. The Plaintiff came under the care of Mr. Karr, Consultant Orthopaedic Surgeon who carried out an open reduction and internal fixation of the displaced fracture of the right patella. The Plaintiff was discharged on crutches with his right leg placed in a plaster of Paris cast. The laceration to the scalp was closed with steri strips and healed uneventfully. Initially, his left shoulder was very sore with limitation of shoulder movement for a number of days. After removal of the cast his leg was placed in a brace which he said was worn for a number of months though he wasn’t sure how long his leg was in a cast.
139. The Plaintiff re fractured his right knee on the 4th December, 2010, when he fell in the course of a row with his father during which had been pushed. The right knee began to swell immediately; further surgery was required. This involved a repeat open reduction and internal fixation with revision of the previous internal fixation. The operation was carried out on the 6th December, 2010, at UCH by Mr. Karr. The Plaintiff was mobilised on crutches and discharged on the 7th December, 2010, with his right leg again in a plaster of Paris cast. He was reviewed on the 15th December, 2010, and again on the12th January, 2011. At that stage the cast was removed. The surgical wound was healing satisfactorily and the Plaintiff was referred for physiotherapy. A review on the 2nd February, 2011, showed some prominence of the metalwork.
140. On the 11th March, 2011, the Plaintiff presented with a two week history of pain and swelling around his right knee. He was again readmitted to UCH in Galway. Because of the amount of swelling around the anterior aspect of the right knee a decision was made to proceed with the removal of the metalwork and exploration of the platella fracture. At surgery it was found that the fracture site was not healing. The Plaintiff was again treated with immobilisation post operatively and then mobilised on crutches. He was reviewed on the 23rd March, 2011. The operation wound was healing well and repeat x-rays reported the fracture healing as satisfactory. Further review on the 27th April, 2011, showed the Plaintiff improving with a better range of motion of the knee with a full range of motion being achieved by May, 2011 though with wasting of the quadriceps muscle.
141. When the Plaintiff was reviewed on the 15th August, 2012, it was noted that there was some persistent wasting of the quadriceps muscle. He was not reported as having any significant pain at that stage and he was able to straight leg raise with full flexion in the knee. The Plaintiff did complain that prolonged sitting, such as sitting in a car trying to drive long distances or trying to kneel caused him difficulty. He told Mr. Karr at that time that he was limping and that he still had some pain over the anterior aspect of the knee. Repeat x-rays taken in August, 2012 showed that the fracture had united. There is permanent scarring from the surgeries to the knee. The Plaintiff also told Mr. Karr that he could not pay field sports such as football or hurling because of his knee injury.
142. Mr. Karr gave evidence that the displaced fracture suffered by the Plaintiff as a result of the assault and battery was very serious and that the Plaintiff has a risk of developing post traumatic arthritis in the platella femoral joint. X-rays taken following a further injury to the knee on the 23rd September, 2015, showed that the fracture had united although with a slight irregularity of the articular surface of the platella.
143. Vocationally, the Plaintiff gave evidence that he was unable to fulfil his ambition to join the army because of his knee injury, however, on cross examination he accepted that he had not in fact made an application to join the army because at the time the defence forces were not recruiting though he couldn’t join now because of the knee injury still continues to be painful. He accepted that he had had another accident involving the same knee of which Mr Karr was not aware in September, 2015 when he fell on a kerb. His evidence was that he would be unable to climb a ladder but would be able to do what he described as semi construction type of work.
144. The Plaintiff accepted that he was able to undertake the relatively heavy manual work which was captured on surveillance video that was shown to the Court. This video displayed the ability by the Plaintiff to bend his knees, pull a trolley up a ramp and generally undertake what appeared to be comparatively heavy manual work.
145. Having regard to the subsequent injuries sustained by the Plaintiff to his right knee and the prognosis that the Plaintiff does have a risk of developing post traumatic arthritis in the patella femoral joint, a question arose as to the contributory effect on prognosis in particular of the subsequent accidents, including the re fracture of the right patella on the 4th December, 2010.
146. Mr. Karr was unable to quantify in percentage terms the relative contributions, however, whilst acknowledging that the re fracturing of the right patella in December 2010 would not have helped he was quite definite when pressed that the original displaced fracture was the more serious injury the consequence of which was a risk of post traumatic arthritis in the patella femoral joint developing at some stage in the future; If that were to develop there was a possibility that the Plaintiff might require further reconstructive surgery. He could put the matter no further than that.
147. The soft tissue injuries resolved in a comparatively short period of time and the Plaintiff made very little of them at the trial. Dr. Cahill, his GP, prepared a medical legal report dated the 28th June, 2012, at which stage the main complaint related to the right knee. The Plaintiff did complain of some intermittent left shoulder pain occurring once every two weeks; generally if he lay on his left side in bed at night; clinical examination of the shoulder showed a full range of movements and no tenderness was elicited. There was a one inch scar noted at the back of the scalp above the hairline which was not cosmetically disfiguring and again the Plaintiff made nothing of it at trial.
Conclusion.
148. It is quite clear from viewing the surveillance evidence that the Plaintiff is able to engage in comparatively heavy manual work and that he appears to be able to do so without restriction notwithstanding the nature of the injuries sustained to the right knee. The soft tissue injury to the right shoulder has evidently fully recovered. The soft tissue injuries, such as they were, are all in the past and the only ongoing sequelae which remain are an ongoing complaint of pain in the knee and the risk that the Plaintiff may develop post traumatic arthritis in the platella femoral joint at some indefinite point in the future.
149. Having regard to the conclusions reached by the Court in relation to liability and apportionment, the Court will assess damages separately in respect of the soft tissue injuries and in respect of the fracture injury to the right patella. It is necessary to exclude from the assessment process the pain and suffering as well as any other consequence attributable to the subsequent accidents. I accept the medical evidence of Mr. Karr and applying the well settled principles of tort law to the assessment of general damages in respect of the injuries for which the Defendants and Prionsias McComiskey are concurrent wrongdoers, and having had regard to the revised Book of Quantum, the Court considers that a fair and reasonable sum to compensate the Plaintiff for pain and suffering consistent with the soft tissue injuries sustained is €15,000.
150. In relation to the right knee injury caused by the assault and battery, which principally involved a displaced fracture of the right patella carrying with it a definite risk of the development at some point in the future of post traumatic arthritis in the femoral joint, the Court considers that a fair and reasonable sum commensurate with those injuries to compensate the Plaintiff for pain and suffering to date is €35,000 and in respect of future pain and suffering the sum of €15,000, making in aggregate a total of €65,000 for general damages which will be reduced in accordance with the respective apportionments already determined; the Court will so order.
151. Having due regard to the terms of this judgment I will discuss with Counsel the final form of the orders to be made.
O’Sullivan v Depuy International Ltd
[2016] IEHC 684, Cross J.
JUDGMENT of Mr. Justice Cross delivered on the 29th day of November, 2016
1. Introduction
1.1 The plaintiff was born on 26th February, 1964. She has three children born in 1992; 1999; and 2002. As an infant, the plaintiff recalls being under the care of an Orthopaedic Surgeon and being placed in traction on a Spica which is a cast covering the top part of her limb up to her tummy. This is because she suffered from a condition known as bilateral acetabular dysplasia which is a congenital deformity of her hips.
1.2 The plaintiff states and I accept that after her treatment she lived a normal life going to school which she left at sixteen. She worked in a gun shop in Waterford and then travelled around Europe working in London and Amsterdam where she was a “runner” for a hotel, which involved positioning herself in the Central Railway Station and inviting tourists to stay in the hotel she worked for and bringing them back to it. She then returned to Ireland and worked as a school secretary for a number of years and then worked in a public house in Waterford performing all the physical tasks associated with work in a public house apart from lifting beer barrels.
1.3 She was in a steady relationship until approximately 2004 and had three children as stated. The plaintiff agrees that when she was in Amsterdam, in particular, friends and acquaintances referred to as walking like “John Wayne” which I believe means that she had a somewhat rolling gait.
1.4 Up to about 2002, the plaintiff states that she did not have any difficulty with her hips but around that time developed increasing problems due to arthritis.
1.5 She was ultimately referred to Mr. O., a well known Orthopaedic Surgeon.
1.6 In September 2002, Mr. O. first saw the plaintiff, he found her hips had limited movement and he concluded in his letter to her GP that she required both her “knees” (sic) done. The plaintiff’s stiffness and incapacity continued and worsened and the left hip was not replaced until 19th October, 2005, the right hip was replaced in May 2006.
1.7 The plaintiff states and I accept that before the surgery she did not use a crutch and her recollection is that she was able to walk at her own pace, manage to go upstairs and everywhere though she agreed that she had “little rheumatisms” in winter time.
1.8 It is accepted that the plaintiff is a honest historian who in no way consciously exaggerated but it is also accepted by all sides that memories of patients tend to combine different events and are not to be trusted entirely especially as to timelines. I find that the plaintiff was more incapacitated prior to her replacement than she recalled.
1.9 Accordingly, I accept that the plaintiff was in need of her hip revision and was in pain and had stiffness and some disability by the time of her first operation in 2005, though I also accept that she managed to get about generally unaided.
2 The First Operation – Left Hip Replacement, October 2005
2.1 Mr. O. was not alone an Orthopaedic Surgeon, he was also on the design team of the defendant company in relation to their innovative Metal on Metal (MOM) hips. He advocated the use of DePuy hips and advised the plaintiff that it was a “once in a lifetime” job and that she would have hips like “Brian O’Driscoll” (this I understand, was, at the time, meant to be suggestive of great future mobility).
2.2 The MOM DePuy product known as ASR and ASR XL promised greater flexibility and greater durability. It contained chromium and cobalt and was characterised by two essential features, a shallower cup and a smaller clearance between the cup and the ball.
2.3 The plaintiff was some ten days in hospital after this procedure and returned home with a walking frame and felt that she had to drag her left leg after her. She then mobilised first with two crutches and after that with one.
2.4 After the first operation, the plaintiff had to sleep downstairs, as she could not readily climb her stairs. Her relationship with her partner had terminated some time in 2004, but after the operation, and up to this day, her partner provided great care and assistance for her working around the house and garden, assisted her in dressing and performing bodily function and doing heavy shopping and the like.
2.5 In the operation, the plaintiff’s left leg was lengthened by about 3 to 4cm and the operation itself was a difficult one.
2.6 It is correct that the inference could be drawn from the plaintiff’s evidence that the operation was of no assistance to her and that she was just the same after it as she was before. As stated above, it is agreed that she tended to combine different events and her recollection is to timelines may not be satisfactory.
2.7 However, the plaintiff specifically pointed out that her problems did not remain the same but gradually got worse stating that in 2007, she started to get grinding sensation “continuously in both legs” which her children heard especially when she moved and she was particularly sore, a pain which she differentiated from rheumatic or arthritic pain. I accept this evidence in conjunction with the evidence of her medical and doctors notes that she did get relief after the replacement and that her problems gradually got worse.
2.8 The plaintiff’s notes from Mr. O. point to an “excellent recovery” and her problems and difficulties, as stated by her, were not recorded to Mr. O. The plaintiff stated that her relationship with Mr. O. broke down and she did not find him an easy person to talk to. I believe that this breakdown of relationship with Mr. O. probably occurred after the second operation and not after the first. I accept that in the initial two years or so after the operation, the plaintiff did experience relief from her pain. She was, however, required to engage in stretching of her legs and muscle building in order to get a good clinical result and this, of course, was distressing. I also accept her evidence that her mobility did not return to what she had anticipated.
3 The Second Operation – Right Hip, May 2006
3.1 Mr. O. performed a replacement operation on her right hip on 17th May, 2006, and she was discharged after nine days. Complications are not mentioned in her medical notes and up to 2007, Mr. O’s records indicates that the plaintiff had returned to a lot of her pre-operation activities of swimming and walking etc. The plaintiff, however, stated, and I accept, that all of these activities were very limited.
3.2 Around 2007 or 2008, some surgeons including Mr. N. who gave evidence on behalf of the plaintiff began to have doubts and suspicions in relation to the efficacy of the defendant’s ASR and ASR XL hips and in 2009, the defendant’s withdrew their product from Australia and subsequently, there was a worldwide recall of the product.
3.3 The cause of the problem, it is alleged, is the presence of excessive metal ions by reason of the grinding of the prosthesis due, it is believed, to the shallow cup and small clearance between cup and bell. These ions get into the blood supply and then can cause significant damage to the patient including metallosis i.e. metal fibres from the implant and fluid builds up and damage is caused to the bones and possible soft tissue damage which is deemed to be Adverse Reaction to Metal Debris (ARMD) which is sometimes also referred to ALVAL.
3.4 It is alleged that the cause of the problems in relation to the defendant’s MOM hips was the peculiar and particular design of these hips but for reasons they would be later explained is not necessary to give any determination on that point.
3.5 In late 2007, the plaintiff attended Mr. O. and complained there was something significantly amiss in relation to her hips. The plaintiff had attempted to contact Mr. O. some period before she managed to get a consultation. He recorded that she was quite symptomatic and stiff and has “a lot of grinding of the left hip and flex to 30 to 40 degrees”. The plaintiff in her evidence referred to the grinding as being a noise which her children could hear, being particularly loud when she moved and it was particularly very sore. It was not similar to arthritis or a rheumatoid type of pain but was a pull on her legs and her lower leg felt as if she was wading in water and she was not moving properly. She was very fatigued and tired.
3.6 Mr. O. reassured the plaintiff and advised her that as far as her hips were concerned that the “God of Orthopaedics” had done the operation. I accept that the relationship between the plaintiff and Mr. O. was not good from this time on, she says that she was constantly ringing his clinic but could only secure an appointment when she got a letter in 2010, saying that the DePuy products had been recalled. In the meantime between 2007 and 2010, she was very seriously debilitated and was in pain and was unable to climb steps and her balance was affected.
3.7 The plaintiff attended Mr. O. in January 2011 and tests were carried out. Blood level revealed a cobalt of 131ug/L and chromium of 31.3ug/L and in April 2011, the cobalt was 140ug/L and chromium 31.3ug/L. These levels were described as “fantastically high” by Mr. N. Mr. N. stated that these levels of ion were higher than in any other case he had examined. The normal level for someone with a bilateral metal on metal hip should be between 2 and 3ug/L. The evidence, which I accept, is that not alone is this level “fantastically high” but that it is dangerous as to possible bone and other damage to the plaintiff. With iron levels this high, the risk of poisoning is also real.
4 The Third Operation – Revision of the left hip which had been replaced in October 2005
4.1 On 18th May, 2012, Mr. O. performed a revision surgery on her left hip. The DePuy hip inserted in 2005 was removed and a new hip was installed. Mr. O. filled in a revision hip form supplied by the defendants which read “ALVAL/soft tissue damage ++ with metallosis”.
4.2 Mr. N. on behalf of the plaintiff is of opinion that Mr. O. found a hip “which was full of fluid which was metallic looking with metallosis and that when he removed the head from the stem, there was obviously some changes which to him suggested a taper problem”. This is disputed by Mr. T.O., the Orthopaedic expert on behalf of the defendant.
4.3 The plaintiff indicates that as soon as she woke from the revision operation on her left hip, she experienced a significant severe pain in her knee which was so bad that she thought that her knee was broken. This incident is not recorded in the notes but the plaintiff was adamant that this significant pain which persisted is related to that incident.
4.4 Mr. N. on behalf of the plaintiff believes that the revision of her left hip resulted in damage to her sciatic nerve and that her symptoms are classic in relation to such damage. Such damage is a normal risk of revision. Mr. T.O. on behalf of the defendant disputes that her symptoms are consistent with sciatic nerve damage and adds that if she did suffer such damage, it was more likely in the initial hip replacement operation in October 2005.
4.5 The plaintiff has significant symptoms which are severely disabling in relation to her knee when both Mr. N. and Mr. T.O. believed that the present position with these symptoms is likely to be permanent.
5 The Fourth Operation – Revision of right hip which had been replaced in 2006
5.1 The right hip manufactured by the defendants and placed in 2006 was revised on 19th February, 2013. A small amount of clear fluid was found but this operation seems to have proceeded with better results than the left hip.
6 Issues
6.1 The plaintiff claims damages for negligence, breach of duty, breach of statutory duty and liability for defective product. A full defence was filed denying liability for injury, loss or damage, denying that any injuries were caused by reason of the bilateral implantation of the defendant’s device, denying any defects and pleading that there was no breach of s. 2 of the Liability for Defective Products Act 1991, in relation to the manufacture sale and supply of the product or that the products were defective under that Act.
6.2 By letter of 18th October, 2016, delivered by email on the morning this case was first listed for trial, the defendants wrote as follows:-
“Our client’s position is that they have no liability to your client in relation to the claims made by her in these proceedings. Nevertheless, in order to avoid the substantial costs likely to arise during a full trial of the action, our client hereby agrees to the trial proceeding on the basis that your client will not be required to establish that the DePuy product supplied to her were defective, leading to the necessity for early revision, which offer is made without admission of liability. The claims can therefore proceed as an assessment of compensatory damages only without any admission of liability.
In these circumstances, the only issue required to be dealt with by the court is the issue of the quantification of damages along with any issues of causation in relation to the quantification of damages. For the avoidance of doubt, our client contends that your client’s pre-existing medical condition was such that she would in any event have suffered increased difficulties following her surgery and any subsequent revision.”
6.3 Counsel for the defendant in making final submissions in this case stated that the issues in this case are “What is the extent of the plaintiff’s problems? Would those problems have been present in any event? If they wouldn’t have been present what proportion of them would have been present in any event? What special damages were caused by the 2005/2006 implants?”
6.4 It is important to note that it is no part of either side’s case to criticise the initial or subsequent surgery of Mr. O. Mr. O. is a experienced and highly reputable surgeon who was, as has been stated, not alone an early advocate of the DePuy MOM hips but was also on the design team. Mr. O. is not a party to these proceedings and was not called as a witness. The plaintiff had lost confidence in Mr. O. and did not call him as a witness. The defendants requested the plaintiff to make Mr. O. available to them for consultation and, as was their right they declined. The defendants, though they had the benefit of Mr. O’s notes, did not call Mr. O. to give evidence “sight unseen”. In the circumstances, I fully understand why neither party called Mr. O. to give evidence.
6.5 The defendant suggests that I should draw inferences hostile to the plaintiff from the failure of the plaintiff to call Mr. O. but I do not draw any such inferences other than to state, the obvious, that it is for the plaintiff to establish on the balance of probability ever matter that is required to be proved and if, having considered all the evidence, I cannot make up my mind on any point between conflicting evidence then I must conclude that on that point the plaintiff has failed to establish her case.
6.6 The defendant concedes that the plaintiff is entitled to damages in respect of the necessity for the early revision of both hips but the defendant’s dispute liability in respect of the plaintiff’s nerve damage which affects her knee or as to the general present state of the plaintiff. Indeed, it is fair to say that notwithstanding the letter of 18th October, 2016, virtually ever other matter in this case was in issue and indeed a hotly contested issue.
6.7 The plaintiff now has significant problems and disabilities. She is very disabled in what Mr. N. said (and Mr. T.O. did not disagree) was in an “awful” state.
6.8 She is in significant pain. She has significant limitations of movement. She walks with a very difficult gait. She requires crutches. She is unsteady on her feet. She cannot walk any distance. She cannot perform normal bodily functions such as washing or dressing. She is very limited in the amount of cooking or housework she can do and she is in severe pain. The position of the plaintiff is entirely different from and much worse than any other case, I have seen, involving allegedly defective hips and a need for hip replacements.
6.9 It is likely that this condition is going to be permanent but she will require further revisions.
6.10 The main issue in this case is Causation of what both sides agree to be, the plaintiff’s present “awful” state.
6.11 Briefly put, Mr. N. on behalf of the plaintiff is of opinion that 90 to 95% of her current and future problems are due to the defendant’s hip which through the raised iron levels caused a significant metallosis and osteollosis involving infection and loosening of the cup and an Adverse Reaction to Metal Debris (ARMD) (also known as ALVAL). Mr. N. believes that 5 to 10% of the plaintiff’s problems were caused by the dysplasia which pre-existed, the hip replacements.
6.12 On the other hand, Mr. T.O. on behalf of the defendant said that 90 to 95% of the plaintiff’s present and future condition and problems are related to her congenital dysplasia and that only 5 to 10% are related to the defendant’s hip.
6.13 That is the stark contrast between the expert evidence which will have to be resolved.
6.14 Notwithstanding the major dispute as to the cause of the plaintiff’s problems, Mr. T.O. and Mr. N. are in agreement that had there been no requirement for early revision of the hips as inserted in 2005 and 2006, that the plaintiff could have expected at least 20 years life for those hips to age 61 and 62, when in the normal course of events they would have reasonably had to been revised. Mr. N. subsequently has revised his view given the longevity of replacements hips that the plaintiff could have expected the first revisions to have lasted 25 years.
6.15 Mr. N. believes that Mr. O’s initial view that the hips would last the plaintiff’s lifetime was based upon a misplaced enthusiasm for the new product and that it would have been unreasonable to have expected such longevity in any event.
6.16 Mr. N. and Mr. T.O. are also of the view that had there not been a problem, the first revision should have lasted to age 61 for the left hip or 62 for the right hip (or 66 and 67 as Mr. N. later revised his opinion), would have to then be replaced by a second revision which would have lasted approximately fifteen years to 76 and 77 (or 81 and 82 if Mr. N’s more optimistic view on longevity is accepted).
6.17 In any event, there is no disagreement that were there no problem with the hips, the plaintiff would have had to have two revisions in each hip.
6.18 There is, however, difference between Mr. N. and Mr. T.O. as to what is the present position, given the failure of the hips and their revision in May 2011 and February 2013.
6.19 Mr. N. is of the view that the first revision of the left hip is already showing signs of loosening that it would only last a total of eight years and that in all the plaintiff will require a total of four revisions in her left hip (i.e. two more than she would have needed normally). Mr. T.O. is of opinion that the plaintiff would only require three revisions of her left hip (i.e. one more than she otherwise would have had).
6.20 In relation to the plaintiff’s right hip, Mr. N. is of the view that the plaintiff’s right hip, had all been well, would in the normal course of events require two revisions and that as things now stand, she will require three.
6.21 Mr. T.O. agrees that the plaintiff would, in the normal course of events, have required two revisions in her right hip and is of opinion that she will still only require two.
6.22 Mr. N. is also of the view that the level of ions present was indicative of the fact that, as a virtual certainty, there was bound to be damage to her bones and that this damage was confirmed on the revision of her left hip in May 2011, when a defect in the bones was disclosed in Mr. O’s note of the operation (though referred to as “small”) and the fact that it was covered by Allograft. The damage in Mr. N’s opinion is confirmed in the Histopathology report as requested by Mr. N. from the sample on the date of the revision which reported “the appearances are of metallosis with mild ALVAL” and it was found that there was “adverse reaction to metal debris, metallosis with mild ALVAL”. This histology report was confirmatory of Mr. N’s interpretation of the record of the revision operation signed by Mr. O. and presumably requested by DePuy which indicated the presence of ALVAL with metallosis.
6.23 Mr. N., as stated, is also of the opinion that in the operation in 2011, the plaintiff suffered an injury to sciatic nerve consistent with blunt injury to the nerve with interruption of nerve fibres.
6.24 The presence of such an injury was confirmed by Mr. B. McN., Consultant Clinical Neurophysiologist, though Dr. B. McN. Could not say as to when this injury occurred.
6.25 Mr. N. is of the opinion that x-rays of the plaintiff’s left hip already shows signs of loosening which is the main reason that he believes further revision is required at an early date.
6.26 Mr. N. is of the view that the plaintiff’s injuries and incapacities are likely to persist, that she is likely to get some relief from each of the replacements but that her physical incapacity is likely to be a permanent feature.
6.27 Mr. T.O. on behalf of the defendant, disputes the proposition that the plaintiff suffered an injury to her sciatic nerve in the revision of the left hip in 2011, or at all, and adds that if she did suffer any such injury, it is more likely to have occurred in the original hip replacement in 2005.
6.28 This distinction is not academic as it is not disputed that if there was an injury in the unnecessary replacement operation of 2011, that the defendants have a liability in respect thereof but if it was not caused in this operation but caused, for example, in the initial hip replacement in 2005 that the defendants would not have a liability.
6.29 Mr. T.O. further disputes, as stated above, the frequency of further operations.
6.30 Mr. T.O. also disputes that there is any loosening of the left hip to be seen or that there was any bone damage or evidence of ARMD.
6.31 All of these matters are, of course, relevant to the issue of damages, both general damages and special damages. The plaintiff has a claim for an extensive amount of special damages for future aids and appliances which clearly are not recoverable if the plaintiff’s case against the defendant as outlined above cannot be made out.
6.32 Essentially, however, the issue that I will have to determine is whether, as contended by Mr. N., that 90 – 95% of the plaintiff’s past, present and future problems are referable to the defendant’s hips as implanted and 5 – 10% related to the underlying dysplasia or the direct mirror opposite as contended for by Mr. T.O. that 90 – 95% of her problems are related to the dysplasia and 5 – 10% to the defendant’s hip. I have rarely seen two expert witnesses more dramatically opposed both in their general theories and also in almost each specific detail in the case.
7 Experts Witnesses
7.1 When a judge is faced with starkly conflicting expert evidence, each saying the opposite of the other, there may be a tendency to wish that a third or “neutral” expert could be engaged by the court to decide the issue in dispute.
7.2 Such considerations, of course, are fundamentally alien to our system of law which requires cases to be determined by judges and not by experts.
7.3 Such considerations also are alien to the role of experts which is to give expert and unbiased evidence of assistance to the court in determining the issues before it and to avoid slipping into the role of the advocate. In particular, the declarations of experts frequently require them to, inter alia, “draw to the attention of the court all matters of which the expert is aware which might adversely affect his opinion”.
7.4 A judge, who is a layman in relation to the expertise of the witnesses will have to come to a conclusion as to which evidence he can prefer based upon an overall and particular judgment of the expert and his or her evidence.
7.5 To abdicate a judge’s responsibility and suggest that a solution to this dilemma is to be gained from employing a “neutral” expert is, not alone to misjudge the role of the decision maker in litigation but also, I believe is to subscribe to a naive belief that there does exist a witness so knowledgeable and so removed from any subconscious pressures that there will be no element of subjective bias in their evidence.
7.6 The best method of arriving at as close approximation of the truth as is possible is, I have no doubt, from the examination and unfettered cross examination of witnesses and the formation of a judgment as to which witness is more reliable. Any a priori limitations on the number of experts or the length of their examination or cross examination is dangerous and could well result in severe injustice.
7.7 Mr. T.O. is an expert Orthopaedic Surgeon with his medical degree in the University of Cardiff in 1986, and post graduate qualifications of FRCS (London) 1990 and FRCS Orthopaedics March 1995 and USMLE September 1995. He has a practising consultant specialising in hip replacement surgery for some nineteen years and has experience in the field and has contributed a number of presentations to learned societies. I formed the view that Mr. T.O. gave his evidence honestly believing same to be true.
7.8 Mr. T.O. was of the opinion that the plaintiff who suffered from a congenital dysplasia, Grade 3 (the most serious dysplasia is Grade 4) could not have reasonably expected to have an excellent result from the surgery and the result that she actually obtained was within the region of what might be expected.
7.9 The views of Mr. T.O., of course, have the advantage in ascribing 90 – 95% of the plaintiff’s disabilities to her congenital dysplasia, of appearing the more instinctively plausible to a lay person. The plaintiff has a pre-operative condition. It is reasonable to assume that she could not have expected a complete recovery notwithstanding Mr. O’s enthusiastic views. Of course, a layman’s “gut” view of what is the more instinctively probable position is not any basis for my eventual decision which must evidentially based.
7.10 Mr. N. got his medical qualification in Newcastle Medical School in 1988 and his post graduate qualification as FRCS Orthopaedics in 2000 and has been a Consultant Orthopaedic Surgeon in North Tees General Hospital since 2002. Mr. N’s specialist interest is in hip and knee replacements and revision and resurfacing.
7.11 Mr. N. implanted over twelve hundred MOM hips and has revised over four hundred MOM hips from different centres around the UK and Ireland. He has been involved in the implanting and indeed the revision of hundreds of the defendant’s hips.
7.12 Mr. N. has published extensively in eminent Peer Review Papers and spoken at the most prestigious international and national meetings.
7.13 Of particular significance is that in 2004, the defendants marketed the MOM hip and at that time, Mr. N. was using a rival resurfacing artificial hip known as the “Birmingham hip” but was persuaded by defendant’s representatives that their product was far superior in relation to wear rates which they claimed was verified by testing. In particular, it was represented to him that the defendant’s hips were superior to the “Birmingham hip” and so impressed was Mr. N. that he became an advocate for the defendant’s hips. Accordingly, when DePuy wanted to go to an orthopaedic surgeon in the United Kingdom to advocate their MOM hips, they sought out Mr. N.
7.14 It is clear that in terms of expert experience, Mr. N. is better qualified in relation to hip replacements and revisions than Mr. T.O. Mr. N. has also contributed to more learned Peer Review articles in more prestigious papers and has spoken at and presented papers to more prestigious conferences than Mr. T.O. Mr. N. can, therefore, be regarded as having greater expertise than Mr. T.O. Of course, the fact that one expert is more qualified in his expertise than another is not necessarily determinative of a resolution of the issue in the case.
7.15 In or around 2008, Mr. N. in conjunction with a fellow surgeon, Mr. L. discovered what they claimed to be a failing in the defendant’s ASR and ASR XL hips which was initially believed to be a design fault and then a manufacturing problem was discovered as well in that the implants were allegedly not being made to specification.
7.16 The defendants initially advised the plaintiff that the problem was his and his alone as a surgeon and that the defects must have been caused by his poor surgical practice.
7.17 In any event, after publicity, Mr. N. was approached by American attorneys to get involved in what is known as Qui Tam litigation.
7.18 Qui Tam is, as I understand, a form of public interest litigation in which litigants expose what they believe to be fraudulent practices by companies which have manufactured defective products which have cost the State money and should the litigation be successful, the State is entitled to damages to represent the losses they have incurred in funding these defective products and the litigators, (including Mr. N.) are at the successful conclusion of this litigation entitled to a proportion of the damages recovered.
7.19 Qui Tam comes from the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur which means: “he who sues in this matter for the King as well as for himself”.
7.20 Mr. N’s Qui Tam litigation has been dismissed in the courts in the United States and is, at present, under appeal. Mr. N. says that the reason for the dismissal is that due to a restrictive disclosure orders in other cases, he was unable to advance names of individuals who had suffered from the defective hips and as a result of this inability the litigation was dismissed.
7.21 Be that as it may, as a result of this litigation, counsel on behalf of the defendants have sought to impugn Mr. N’s independence as an expert witness.
7.22 Counsel for the defendant relied upon the English case of EXP v. Barker [2015] EWHC 1289 (QB) and in that case, Parker J. sets out the importance that the expert witness does not have an interest in the case and Parker J. quoted, with approval, the extract from Phipson on Evidence in which the principles in relation to expert witnesses are set out:-
“(1) It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings.
(2) The existence of such an interest, whether as an employee … or otherwise, does not automatically render the evidence of the proposed expert inadmissible. It is the nature and extent of the interest or connection which matters, not the mere fact of the interest or connection.
(3) Where the expert has an interest of one kind or another in the outcome of the case, the question of whether he should be permitted to give evidence should be determined as soon as possible in the course of case management.
(4) The decision as to whether an expert should be permitted to give evidence in such circumstances is a matter of fact and degree. The test of apparent bias is not relevant to the question of whether an expert witness should be permitted to give evidence.
(5) The questions which have to be determined are whether:
(a) the person has relevant expertise; and
(b) he is aware of his primary duty to the Court if they give expert evidence, and are willing and able, despite the interest or connection with the litigation or a party thereto, to carry out that duty.
…
(7) If the expert has an interest which is not sufficient to preclude him from giving evidence the interest may nevertheless affect the weight of his evidence.
Even where the court decides to permit an expert to be called where his independence has been put in issue, the expert may still be cross-examined as to his independence and objectivity.”
7.23 Counsel on behalf of the plaintiff objected to the attack on Mr. N. without the defendant objecting prior to his evidence and seeking to exclude him from giving evidence but I find that the defendants are entitled to object to any witness or to submit at the conclusion or at any stage after cross examination that the evidence of that witness should be either ignored or given lesser weight.
7.24 If one examines the supposed “interest” of Mr. N., it is clear that it would indeed have been preferable had Mr. N. not got himself involved in the Qui Tam litigation in the United States from the point of view of the smooth running of proceedings in this jurisdiction.
7.25 However, it is also apparent that nothing that could happen in this case, or I suspect in any other litigation against these defendants in this State would be relevant to Mr. N’s undoubted financial interest in the Qui Tam litigation in the United States of America. The issue in this case is that of Causation and it is entirely independent on whether or not in the United States of America, the defendants have engaged in what is alleged to be mala fides to the detriment of the Federal Government or to any State or City Governments in United States.
7.26 Counsel on behalf of the defendant further attacks Mr. N’s credibility on the basis that he has allegedly stepped down from his position as an expert because of a “general hostility” to the defendants. In order to substantiate this, counsel has referred to the numerous cases in which Mr. N. has given evidence against the defendants in this jurisdiction and in the United Kingdom and to Mr. N’s opinion that the defendants have acted mala fides.
7.27 In view of the letter written on the first day of this trial, it will not be part of this decision to make any findings of mala fides or indeed negligence against these defendants. Whether or not DePuy are guilty of negligence or major malpractice is a matter to be determined in other proceedings. The fact that Mr. N. clearly believes in the cases that he has been making and indeed has given evidence in these courts to that effect prior to settlement of these cases, is not an argument of general mala fides towards the defendant rather it is Mr. N’s opinion which, if correct, demands the sort of evidence that Mr. N. has given in those other cases. It would be quite wrong if Mr. N’s opinion is reasonable for him in any way to water down his evidence to give a seemingly more nuanced view merely because he is going to be required to give such evidence in many other cases.
7.28 Accordingly, I reject any attack on Mr. N’s evidence on the basis that he is a biased witness or that any lesser weight should be put on his evidence given his history.
7.29 I believe that both experts gave their evidence honestly believing what they said to be true.
7.30 The issue remains, however, as to which of the expert’s evidence I should prefer.
8 Decision
8.1 For the reasons as set out below, I prefer the evidence of Mr. N. to that of Mr. T.O:-
(a) It is important to note that in a significant area of conflict between Mr. N. and Mr. T.O., Mr. N’s evidence was confirmed by the expert evidence of Dr. B. McN., Consultant Neurophysiologist, who confirmed Mr. N’s opinion that the plaintiff did indeed sustain an injury to the left posterior tibial division of her sciatic nerve.
(b) Secondly, Mr. N’s evidence as to the damage that the very high levels of ion could cause is confirmed by the histology report commissioned from the samples taken in the revision of May 2011 of her left hip.
(c) The third reason I prefer Mr. N’s evidence is also related to the level of blood ions. These ions were raised to a level that Mr. N. has never seen before and not alone beyond the stage of concern but they are significantly higher than a Peer Review Paper by Mr. N. had stated would result in ARMD in a hundred percent of cases. The existence of ARMD was confirmed in his operation note by Mr. O. and also was confirmed in histology. I am afraid that Mr. T.O’s reaction to the issue of ions was more in the line of a Advocate than an expert in that initially he did not really comment about the significance of the raised ion levels which are clearly set out in the hospital and medical notes and when presented with the histology findings as commissioned by Mr. N., Mr. T.O’s reaction was that though the samples were taken on 18th May, 2011, the same day as her left hip revision that this could have been a coincidence and the sample may not have come from her left hip at all. This response stretched credulity.
(d) Furthermore, when shown Mr. O’s operation notes which referred to metallosis and his report to DePuy on the procedure which refers to ALVAL as well Mr. T.O. tried to suggest that this document did not say what it clearly did. Mr. O. was confirming that on his revision of the left hip he found the signs of the damage which Mr. N. had predicted were bound to be there.
(e) Similarly in relation to the nerve damage which caused the plaintiff intense pain in her knee and which Mr. N. related to damage during the revision of the left hip, Mr. T.O. disputed that any such pathology of nerve damage was evident. When the fact of nerve damage was confirmed by the other expert Mr. McN., Mr. T.O. responded that if there was nerve damage, as a matter of probability it was caused in the original hip replacement rather than in its revision. In this regard, Mr. T.O. was again more acting as an Advocate saying “prove it” and pleading a “rolled up plea” in the alternative rather than as an expert. Mr. T.O’s reason to dispute that the damage was caused in the revision is that there was no note of any complaints at the time. While Mr. T.O. did point out the fact that the plaintiff was under more medication in the original replacement operation than in the revision, there were equally no notes of complaints on that occasion. I accept the evidence of the plaintiff that immediately on waking after the revision, she was aware of significant pain in her knee and I accept the evidence of Mr. N. and Mr. McN. that this pain is due to the nerve damage and I accept the evidence of Mr. N. that as a matter of probability this nerve damage was caused in the revision in May 2012.
(f) I note also that Mr. T.O. in his evidence dismissed the number of post DePuy revisions as due to “hysteria” and “mass panic”. This opinion is to ignore the professional opinion of numerous treating surgeons who have performed revisions operations on DePuy hips. I do not subscribe to the view that these operations were conducted for no purpose.
(g) Mr. T.O. disputed the existence of metallosis as found by Mr. N. in the photographs of the hip but, of course, the evidence for metallosis is not just in the photographs. It is reported by Mr. O., as stated above, when he filled in the defendant’s form under the heading “ALVAL/soft tissue reaction”, Mr. O. inserted also “++ and metallosis”. Mr. T.O. responded to this note and the fact that Mr. O. had to repair some damaged bony structure in the plaintiff with the response that the note undoubtedly referred to this damage as “small” but added that any damage was probably caused in the removal of the hip that had to be replaced. If that were the case, Mr. O. would surely have noted it. Mr. T.O. utterly ignores, disagrees with or denies the findings of Mr. O. post operation of ALVAL/soft tissue damage and metallosis. I have no doubt accordingly that Mr. T.O. is incorrect when he says that there was no evidence of ARMD.
(h) In contrast to Mr. T.O’s responses to various difficulties in his theories, Mr. N. was quite prepared to concede points that were against him. In particular, when questioned as to the plaintiff’s view that at no stage was there any improvement after any of the operations it was suggested to him that this is inconsistent with his theories, Mr. N. agreed but referred to his belief, which I have accepted that the plaintiff is mistaken in her recollection as to the timeline of various events.
(i) In relation to what I described as a “gut” instinct, it is also important to note that Mr. N. agrees that someone with Grade 3 dysplasia should not expect a perfect result (notwithstanding the optimism of Mr. O.). Mr. N. accepts that the plaintiff would have had to expect some lesser result than an equivalent person without dysplasia but as Mr. N. stated if the plaintiff’s outcome was related to dysplasia “we could never operate on dysplastic hips”. There must have been a reason for the original replacements. Indeed as agreed by Mr. N. and Mr. T.O. that notwithstanding her current predicament the plaintiff will require a number of further replacements and clearly there is a medical reason for these further replacements to ease the plaintiff’s disabilities. Accordingly, my original “gut” instincts prove not to be robust. As stated by Mr. N. if the plaintiff’s problems are due to her dysplasia then no dysplastic patient would be given a replacement. Her dysplasia meant that the plaintiff had to have her initial replacement at a younger age than normal due to her arthritis than would be a case in a person without dysplasia but her result and condition cannot be due to the condition that the new hips were designed to alleviate.
8.2 Accordingly, where there is any conflict between the evidence of Mr. N. and Mr. T.O. notwithstanding the view that I accept Mr. T.O’s subjective belief in his evidence, I prefer the evidence of Mr. N. who has acted at all stage, in my view, as a fair and impartial expert.
9 Effects
9.1 The plaintiff accordingly, is indeed by agreement between the parties in a very unfortunate position. I find that 90% of her past, present and future problems are, as is the opinion of Mr. N. referable to the defendant’s hips.
9.2 I find that the plaintiff has suffered an extraordinary build up of her blood ions which have stabilised since the replacements but have caused damage to her system. Bone damage has occurred and she is suffering from what is known as ARMD.
9.3 I find that the plaintiff will require replacements of her hips as Mr. N. has recounted i.e. she will require total of three extra unnecessary hip replacements throughout her life.
9.4 I find that extra replacements carry with them increased risks of infection which is greater each time. A risk of dislocation which worsens with each revision and the bone is vulnerable in relation to surgery. There is a possible risk of what is known as Girdlestone injury as well as the ordinary risks of operations and anaesthesia.
9.5 I find that these revisions will be necessary as the replaced hips were and would give her some extra mobility but that the plaintiff is likely to continue to be severely disabled, unable to carry out normal domestic chores, unable to carry out normal bodily functions without assistance, unable to walk or engage in any employment and that this is going to last her the rest of her life.
9.6 The plaintiff will also be in significant pain probably for life, relieved somewhat from time to time after her revisions.
9.7 I accept Mr. N’s evidence that the plaintiff’s x-rays demonstrate there is already loosening in her left hip which will therefore require early revision.
9.8 I do not accept the contention on behalf of the defendants that the next revision will cure the plaintiff or that Mr. N’s evidence was to that effect. Mr. N. agreed that the revision will be of benefit to the plaintiff in relation to the loosening he found on x-rays and to instability but I accept the submission of counsel for the plaintiff having read Mr. N’s evidence that the more revisions which are necessary, the greater damage would be to the bone and the greater damage to soft tissue and shorter period of relief.
9.9 It follows from the above, that the plaintiff is entitled to damages in respect of her need for future aids and appliances which need will not be solved by any further revision surgery. The plaintiff will, on the contrary, have increasing needs in terms of her disability.
9.10 The appropriate course is, I believe, to assess the plaintiff’s damages in full and then to reduce the total by 10% to take into account my finding on dysplasia.
10 Special Damages
10.1 The legal principle best summarises the nature of special damages to be awarded to a plaintiff in respect of care and aids and appliances was outlined by Irvine J. in Lennon v. HSE [2014] IEHC 336, when she stated:-
“…the plaintiff ought to have access to sufficient funds to enable her purchase the care required to live as normal a life as is reasonably possible… while the plaintiff should be given a sufficient award to maximise her capabilities… that award must be one which is fair to the defendant in the specific circumstances of this case.”
10.2 In my decision in Russell v. HSE [2014] IEHC 590, I approved the statements of Gillen J. in K.D. (A Minor) v. Belfast Social Health and Care Trust [2013] NIQB 78:-
“What has to be first considered by the court is not whether other treatment is reasonable but whether, given the needs of the plaintiff, the treatment chosen and claimed for by the plaintiff is reasonable.”
10.3 Being fair and reasonable is not to take “average” of totals given by experts on behalf of plaintiffs and defendants, to do that is to adopt a paternalistic approach criticised by Pill L.J. in Sowden v. Lodge [2005] 1 WLR 2129 at 2144. Rather, I must examine the claim as advanced by the plaintiff in deciding whether that claim is fair and reasonable. In this case, my task is made easier by the fact that the defendants, for understandable reasons, chose not to call any witnesses on this point.
10.4 The main contention of the defendant was that the sums claimed for special damages for the plaintiff should not be allowed given their view of the plaintiff’s case. As I have not accepted the defendant’s view of the plaintiff’s case, I find that it is reasonable for the plaintiff to make the claims set out below with certain exceptions.
10.5 Counsel on behalf of the defendant submitted that notwithstanding the decision of this Court and of the Court of Appeal in the case of Russell (A Minor) v. HSE [2015] IECA 236, that I should determine the real rate of return at 3%. The basis of the defendant’s application was that this plaintiff is not in the same catastrophic position as the plaintiff in the Russell case and, therefore, can be less risk adverse than Russell.
10.6 In my decision in Russell, I stated, obiter, that a plaintiff with a claim for future pecuniary confined to loss of earnings might possibly be treated as less risk adverse than a plaintiff who has a claim for cost of future care.
10.7 The Court of Appeal in their decision did not accept my view and whereas counsel for the defendant indicated that that view of the Court of Appeal was, of itself, obiter. I accept the reasoning of Irvine J. in the Court of Appeal when she stated:-
“There appear to be a number of arguments against such a proposition. It would seem to admit of the adoption of a potentially higher real rate of return in the loss of earnings claim on the assumption that the plaintiff can necessarily absorb a greater risk when investing their award to secure their future income. While of course there may be the rare case where a particular plaintiff may not need their earnings to survive on a day-to-day basis and might thus be in a position to take risks in terms of the investment of their award, most plaintiffs do not fall into that category….”
10.8 Counsel for the defendant stated that I should not draw from this any suggestion that plaintiffs who are less catastrophically injured than Russell would be entitled to the same real rate of return in respect of claims for future care, aids and appliances.
10.9 I believe that such submission is erroneous. The real rate of return, therefore, should be calculated at 1%.
10.10 While the plaintiff in this case is not making any claim for loss of earnings and all her future claims are for care and aids and appliances, any sum that is found due to the plaintiff is found due because the plaintiff has a right to and a need for that sum as a matter of virtual certainty in order to provide for her the lifestyle for which she is entitled.
10.11 While Ms. O’Sullivan may not die if the level of care that she is entitled to should “run out” due to it not being invested with sufficient caution, should that money run out, she will be deprived for a period of her life without the necessary care or aids and appliances that she is entitled as a matter of law.
10.12 Accordingly, I accept the logic of the decision in the Court of Appeal which by inference I believe covers not just loss of earnings into the future for all but exceptional cases but also for aids and appliances and future care. I regret any lack of rigour that may have resulted from my obiter remarks in the High Court in the Gill Russell case.
10.13 I have been assisted with actuary’s reports and in accordance with law I use the actuary’s figures as a guide.
10.14 The claim for special damages to date consists of a claim for €500 for medical expenses which I think is more properly costs rather than damages and a sum of €516 for travel expenses which I accept together with the sum of €50,540.11 for retrospective care costs in accordance with the report of O’Carroll Kinsella. This, in essence, relates to the extensive care given to the plaintiff to date by her former partner and is reasonable.
10.15 In relation to future, consultants recommend future professional care in support around the time of later replacements in the sum of €5,745.39 and the plaintiffs have claimed on the basis of the total number of future revisions necessary rather than the extra revisions necessitated by the default in the original hips. The plaintiff’s actuary estimates the cost of the care for these five revisions at over €22,000. I believe that the plaintiff should be entitled to recover for the five revisions as though there are only three extra ones required, had it not been for the condition of the plaintiff’s hip, she would have been entitled to her ongoing revisions free of charge.
10.16 Also, the plaintiff’s expert has recommended additional support from age 66 to 76 at €6,174.15 per annum and increasing from 76 to €12,188.29.
10.17 The total of these costs has been actuarialised at €155,361 and I propose to allow the sum of €150,000.
10.18 Furthermore, the plaintiff is entitled to the future cost of the extra revisions themselves which have been calculated at the sum of €41,415. In relation to the home care and aids and appliances. The total of the plaintiff’s claims amount to between €319,000 and €320,000 on a 1% basis.
10.19 I believe that the sums set out by Ms. Barnes are generally reasonable and they have not been disputed by any appropriate expert. I do, however, think that the total sum of €46,662 for drugs payment may not arise and in any event I do not find that the plaintiff has proved on the balance of probabilities that it will arise. I note that a sum of €82,532 is claimed for a paid home help including holidays and PRSI. I believe that the plaintiff is likely to continue the present informal arrangement with her former partner who is entitled to be paid for his services but at a reduced rate of say €60,000.
10.20 In addition, the plaintiff has claimed a sum of €72,495, being the cost of an automatic car but I think that the true loss is the difference between an automatic and a manual which is €4,000 per annum and accordingly which has been included in the plaintiffs actuary’s figures. The only other item I would disallow is the sum of €14,418 for heavy or gardening tasks.
10.21 I think being fair to the parties approximately €80,000 can be removed from the totals for future aids and appliances and home care leaving a total of €240,000 which I would allow.
Summary of Special Damages
Past care and travel expenses €51,040.11
Future revision and care costs €191,415
Future home care/aids and appliances €240,000
Total €482,455.11
11 General Damages
11.1 It is clear that as had been stated in numerous decisions, minor injuries call for minor damages, moderate injuries for moderate damages and severe injuries call for significant damages.
11.2 Whereas the plaintiff’s injuries are clearly not catastrophic they are undoubtedly severe and within the categorisations of the Book of Quantum, they would have to be categorised as “severe and permanent conditions”. The injury has caused major disruption to the plaintiff’s life in a number of areas and has resulted in serious continuing pain and ongoing permanent medical attention.
11.3 Counsel for the defendant has referred me to the Book of Quantum and in particular to p. 57 of the new Book of Quantum, which deals with injuries and dislocations to hips and gives a range between just short of €60,000 and €94,5000 for severe and permanent conditions which:-
“Will require manipulation of a joint back into normal position may have included more intensive treatment or even surgery to keep the joint in position. These may include ongoing pain and some loss of movement and the joint being more susceptible to future dislocation on the onset of arthritic changes.”
11.4 Counsel did concede that the injuries described in the Book of Quantum at p. 57 may not be entirely similar to what the plaintiff has suffered but suggested that I should use this as a guide.
11.5 As I indicated in discussions with counsel, I do have a certain difficulty with the new Book of Quantum in that on its face, the information going into its make up comes not just from court awards or PIAB determinations but also to a significant extent from insurance company files. The difficulty is that those files will, as a matter of virtual certainty, include cases which are compromised due to possible liability factors. If an insurance company has put a value of say €50,000 on a settlement and the files indicates that that case was settled on a 50/50 basis, the insurance company may value the full claim at €100,000. The plaintiff, however, might value the claim at a far greater sum but are concerned that they had a very small chance of success. The reverse is also, of course, possible.
11.6 It is not clear what the portion of the Book of Quantum’s figures are in relation to insurance company files but on the face of it, a significant cause to doubt the accuracy of the recent book does present itself.
11.7 Happily, I do not have to concern myself in this case with such considerations as I do not find that the sums quoted in the Book of Quantum for “dislocations” of hips are in any way referable to the pain and suffering that the plaintiff has gone through and will go through as a result of what occurred.
11.8 The plaintiff has not suffered a “dislocation” of her hips rather the hips that were inserted in 2005 and 2006, have resulted in significant damage to the plaintiff, not just to her hips and have had significant life altering results.
11.9 I must in my determination be fair to the plaintiff as well as to the defendant. I think that to be fair and reasonable to both sides bearing in mind the very severe, if not catastrophic nature of her injuries, and reiterating that the plaintiff’s injuries are far more severe than any other person whose case has been opened to me in relation to these defendant’s hips, I will assess general damages to date in the sum of €200,000 and general damages in the future to €100,000.
12 Aggravated Damages
12.1 The last matter to be considered in this case is a claim for aggravated damages. Counsel for the plaintiff has claimed aggravated damages on the basis that the defendant’s criticism of Mr. N. was wholly unfair and that there ought to be consequences.
12.2 Counsel for the plaintiff relied upon the third category suggested by Finlay C.J in Conway v. INTO [1991] 2 I.R. 305, namely the conduct of the wrongdoer in the defence of the claim at the trial and in particular, they submit that the attack on Mr. N’s character was, in effect, an “assassination”.
12.3 As was established in Phillip v. Ryan [2004] 4 I.R. 429, aggravated damages are compensatory damages.
12.4 Counsel for the defendant referred the court to the decision of the Supreme Court in Swaine v. Commissioner for Public Works [2003] I.R. 521.
12.5 I previously indicated that the issue of aggravated damages may have a roll in cases which the conduct of the defendants is such as (for example, the swearing of an affidavit verifying a defence when there is no real defence to the matter, or the making of any basis or reckless allegations against the plaintiff or a witness) in circumstances in which there is no real other deterrent to a defendant. An award of aggravated damages against a defendant who acts in bad faith, may well be the only deterrent to balance the draconian statutory penalties against a plaintiff who acts in bad faith.
12.6 In this case, however, the complaint is as to the attempted “assassination” of Mr. N.
12.7 Mr. N. is not a party to this litigation and undoubtedly it would benefit the defendant in this and other cases if his credibility could be assailed. I do not, however, think it necessarily unreasonable or reckless for the defendants to assail the credibility of Mr. N. and to have the issue, in particular, of his Qui Tam litigation adjudicated upon.
12.8 Accordingly, I do not have to come to a determination as to the role, if any, of aggravated damages in such cases because I do not believe that the conduct of the defendant in criticising Mr. N. comes within the third categorisation of Finlay C.J. in Conway.
13 Conclusion
13.1 Accordingly the plaintiff is entitled to succeed. Damages are as follows:-
Special Damages to date and into the future €482,455.11
General Damages to date €200,000
General Damages into the future €100,000
Total €782,455.11
Less 10% €78,245.51
Net Total €704,209.60
13.2 As I am obliged to do, I must consider whether the total sum of general and special damages is fair and reasonable and to compensate the plaintiff and I do so decide and accordingly, the plaintiff is entitled to decree in that sum.
Boland v Reardens of Washington Street Ltd
[2016] IEHC 586
EX TEMPORE JUDGMENT of Mr. Justice Twomey delivered on the 14th day of October, 2016
Background
1. The plaintiff is a 36 year old woman who fell down four or five steps in Reardens Bar, Washington Street, Cork on the 19th September, 2010. She was accidentally knocked over by doormen who were ejecting a person from the pub. At the time of the accident, she worked in a call-centre, having previously spent several years in the Irish Naval Service.
2. After the incident, she took a taxi to the Mercy Hospital in Cork, a short distance away, where she was x-rayed and sent home with crutches, having being diagnosed as having an ankle sprain. She remained out of work for that week.
3. At the end up of the week, she woke up with severe neck injury, which she initially assumed arose from her having slept at an awkward angle. She went to her GP where she was prescribed pain relief medication and recommended physiotherapy for her neck pain.
4. She was off crutches within 10 days and her ankle injury cleared up. However, her neck injury remained for some time and she underwent several physiotherapy sessions and an MRI scan of her neck on the 3rd November 2010 (which was normal). As a result of an injection into her neck on the 18th August, 2011, by Dr. Harney, Consultant Anaesthetist, her neck pain cleared up.
5. However, the plaintiff’s claim in this case is for special damages of in the region of €750,000, much of it related to future loss of earnings due to her inability to work. This claim arises from what has been termed by the defendants’ medical experts, as a minor fall leading to a sprained ankle.
6. However, the nub of the plaintiff’s case is that within a period of about one month after the accident, she began to complain of lower right back pain which went down her right leg. It is first recorded in a note that her GP took on the 2nd December, 2010, (some 10 weeks after the accident) where she complains of a lower back pain which arose after a visit to a physiotherapist, the last physiotherapy treatment prior to that GP appointment was the previous day (the 1st December, 2010)
7. It is this lower back injury which is the main focus of this trial. The plaintiff has outlined that she has not been able to work since the accident as a result of the lower back pain. This back pain resulted in her having, inter alia, a discectomy, which did not relive the pain, and she maintains that she will not be able to work again. In 2012, the plaintiff commenced a four year degree, part-time, in Human Resource Management at CIT, which she recently completed and is expected to graduate with a 2:1 degree shortly. Nonetheless her claim for damages is based on her belief that she was not able to do any work, not even part-time work, since 2010 and will not be able to work again due to her chronic back pain.
Medical evidence
8. Dr. Kaar, a Consultant Neurosurgeon engaged by the defendants, records in his Medical Report that when he saw the plaintiff on the 28th November, 2013, she told him that ‘after a number of weeks, possibly 2 months’ there was a pain in her lower back. Similarly, Professor Harty, a Consultant Orthopaedic Surgeon engaged by the defendants, records in his Medical Report that, when he saw her on the 3rd May, 2016, she told him that ‘approximately one to two months later [i.e. after the accident] the pain moved [from her neck] to her lower back and to her right leg.’
9. In support of the plaintiff’s claim for damages for chronic back pain, she has outlined how she underwent unsuccessful lower back surgery in 2012. She also outlined details of the several unsuccessful back injections and back procedures both before and after the surgery that she has undergone. She has been on, and continues to be on, high dosages of morphine patches and opiate drugs to provide pain relief. In 2015, she was diagnosed with depression arising from her absence from work and her chronic lower back pain and she is now also on anti-depressants.
10. Prior to her back surgery in 2012, two MRI scans of her back were done on the 14th April, 2011 and the 30th September, 2011, which showed that one of the discs in her lower back was protruding. The back surgery on the 18th July, 2012 removed this disc and an MRI scan taken after the surgery, on the 5th November, 2012, showed that there was no disc protrusion in her back. Yet, as previously noted the chronic back pain continued for the plaintiff. Also, as noted, subsequent injections and procedures have failed to eliminate the chronic back pain.
11. She underwent nerve conduction studies and concentric needle electromyography (EMG) in June of 2016 which, according to the plaintiff’s medical evidence, suggests that she has nerve injury in her lower back. Professor Harty, a consultant orthopaedic surgeon engaged by the defendant, was of the view that this EMG is of limited value in establishing whether this nerve damage was caused by the accident, since the EMG was done some five and a half years after the accident and in any case nerve damage was not surprising in view of the various surgeries and interventions which the plaintiff has had over the years.
The defendant’s medical reports
12. Before considering the issue of causation, reference should be made to the medical reports in this case.
13. Dr. Hogan, an occupational physician engaged by the defendant, examined the plaintiff on the 19th November, 2014. He noted that there was an apparent decreased range of movement when the plaintiff was asked to do an activity, but much less when she was not actually being examined. He noted the inconsistency between her ability to perform straight leg raising of 20°, which is very limited and indicative of chronic back pain, when supine and when being examined, but straight leg raising of 90°, which is normal, when distracted and when seated. .
14. When Dr. Hogan examined the plaintiff for a second time on the 23rd June, 2016, he noted that the straight leg raising when she was supine was 15°. He also noted that the plaintiff complained of pain in the lower back when pressure was applied to the head (the axial compression test), even though such compression should not cause any pain. He also noted exaggerated reaction to relatively gentle leg raising.
15. Professor Harty, an Orthopaedic Surgeon engaged by the defendant, noted that when he examined the plaintiff on the 3rd May, 2016, she could do straight leg raising to about 70° on her right side when supine and when being examined. However, when distracted and sitting on the couch she could do it to 90°, which would be normal.. He also felt that she feigned restriction when being examined around the lower back, but when distracted moved better than expected. He also stated that when he did an axial compression test by pressing his hand on her head, she indicated a pain in her lower back, when such compression does not cause such pain. Professor Harty stated that he could find no relation between the pain which the plaintiff exhibited and his clinical findings. He concludes that:-
“My impression is that this lady sustained a soft tissue injury. The discectomy that she has had in the lumbar back for pain that she has had bares no temporal relationship to the injury she has sustained. I expect this lady to make a full recovery. I strongly suspect that there is an underlying history or diagnosis of depression here, which is driving most of this. Once this lady’s medico-legal case is completed, I expect her to make a full recovery.”
16. Dr. Kaar, a Consultant Neurosurgeon engaged by the defendants, examined the plaintiff on the 28th November, 2013, and he found that having heard severe descriptions of pain, he could not find evidence of it. He notes in his Medical Report that ‘there was no acute pain or discomfort evident during the examination’. He concluded that:-
“there does not appear to have been an injury to the lower back in the incident on 20 September 2010. Ms Boland did not complain of symptoms in the low-back initially.”
He concluded that the palintiff was fit to work.
17. When Dr. Kaar re-examined the plaintiff on the 20th November, 2014, he again found no evidence of acute pain or discomfort during the examination and on this occasion he found that straight leg raising was not reduced and so was normal. It is to be noted that only the previous day (19th November, 2014) the plaintiff had been examined by Dr. Hogan, yet her straight leg raising that day was very significantly reduced, i.e. to 20°). Dr. Kaar concluded that the plaintiff ‘continues to adopt an illness role and her personality, the nature of her claim and the prospect of compensation are implicated in this’ and that ‘disability in the clinical setting may be exaggerated’.
18. On his final examination on the 14th April, 2016, Dr Kaar again found there was no evidence of acute pain or discomfort during examination. He concluded that:-
“Ms Boland continues to develop increasing pain symptoms over 5 years following a minor incident in September 2010. The incident in 2010 is unrelated to progressing symptoms. The symptoms relate to the ongoing legal case, personality issues and possible exaggeration with a view to compensation.”
The plaintiff’s medical reports
19. Dr. Harney, a Consultant Anaesthetist engaged by the plaintiff, examined her on the 29th March, 2011. He noted that the straight leg raising on the right leg was 90°. However, when he examined her on the 27th May, 2014, her straight leg raising of the right leg was 40°. He was however of the view that:-
“Ms. Boland suffered a severe whiplash associated disorder as a consequence of the incident at O’Riordan’s on the 19th of September, 2010.”
Dr. Marks, a Consultant Neurosurgeon engaged by the plaintiff, examined her on the 24th January, 2012, and he found that her straight let raising was at 40°. As part of his medical report, he refers to the MRI scan been taken in 2011 which noted that a disc in her lower back was protruding and he refers in his report to the fact that he had removed this disc on the 18th July, 2012. An MRI scan taken after the surgery showed that the disc was no longer protruding. As previously noted, the plaintiff continued to feel pain, which may be due to scar tissue from the operation and/or as a result of nerve damage, which appears to be present, as evidenced by the EMG.
Dr. Marks stated in his report that:-
“Since the large majority of lumbar disc protrusions come on spontaneously, for no good reason, it is very hard to state categorically that the fall was the sole cause of her lumbar disc prolapse, but it is very likely that the fall was a major cause”.
20. It is worth noting that, although Dr. Marks was engaged by the plaintiff, he did remark in a letter to the plaintiff’s GP dated 18th December, 2012, that:-
“I think that [the plaintiff] is going to be a compensation client which always makes surgical results for discs much worse”.
21. When Dr. Lim, a Consultant Neurosurgeon engaged by the plaintiff, saw her on the 23rd April, 2015, he found that she had a straight right leg raising of 50° and he stated that it was ‘likely that accident triggered-off her symptoms of neck pain associated with low back pain and right leg pain.’
22. In all of these examinations and reports, it is to be noted that although the plaintiff suffered from severe back injury from December 2010 which has prevented her from working for any time in the past six years, there is a considerable degree of inconsistency in the reported effects of the back injury from no restriction to severe restriction, since:
• on the 29th March, 2011, she could perform normal straight leg raising, namely 90°;
• on the 24th January, 2012, it was 40°;
• on the 19th November, 2014, it was 20°;
• the following day on the 20th November, 2014, it was normal, which would be around 90°;
• on 3rd May, 2016, it was 70°;
• and on the 23rd June, 2016, it was 15°.
Some of the straight leg raising was done while lying down and some while seated and it was accepted by the medical experts for both sides that while these two tests are very similar, they are not exactly comparable and so could lead to some slight discrepancies. Even with this caveat however, the differences exhibited are quite stark.
Causation and the lower back pain
23. This Court has noted the comments of the plaintiff’s Consultant Neurosurgeon, Dr. Marks that in his view the lower back pain which arose from the disc protrusion, (which protrusion was removed by his surgery), was most likely the result of the fall. However, significantly, he also points out that the majority of disc protrusions come on spontaneously.
24. In determining whether the disc protrusion which the plaintiff suffered in this case was caused by the fall in the defendant’s premises, and in particular when considering the evidence of the defendant’s Consultant Orthopaedic Surgeon, Professor Harty, this statement of Dr. Marks needs to be borne in mind.
25. In his oral evidence, Professor Harty was firmly of the view that the plaintiff’s lower back problems could not have resulted from the fall in the defendant’s premises. As he expressed it, he could not see how the fall could have caused the disc protrusion which manifested itself as pain in the lower back some one to two months after the incident. This is because, in his strongly held view, if the incident in the bar was the cause of the protrusion, the plaintiff would have presented with acute pain in the back within 48 hours of the incident and she did not do so. This is because, in his view, if the fall had caused the subsequent protrusion, there would have been internal bleeding and inflammation which would have caused acute pain within 48 hours of the fall. He stated that this inflammatory process is a necessary part of such severe whiplash and in his view it was not possible to override the inflammatory process. In his opinion, the plaintiff has, like a significant portion of the population, even of people of the plaintiff’s age, degenerative changes in her back which caused this disc protrusion and there could be no causal link between the fall and the lower back pain.
26. This Court found the evidence of Professor Harty to be persuasive and determinative of this causation issue, particularly in light of the evidence by the plaintiff’s medical expert that the large majority of lumbar disc protrusions come on spontaneously and for no good reason. Therefore, based on Professor Harty’s conclusions that the absence of any acute pain within 48 hours of the accident was evidence that the fall could not have caused the subsequent lower back pain, this Court finds that on the balance of probabilities the plaintiff’s lower back problems, and the depression which resulted therefrom, were not caused by the fall in Reardens bar.
Treating with caution a plaintiff’s evidence regarding the extent of their pain
27. Although not determinative of the causation issue, this Court also relied upon the judgment of the Court of Appeal in Anthony Shannon and Rita Shannon v O’Sullivan [2016] IECA 93 to the effect that Courts should treat cautiously the extent of a plaintiff’s pain, since the Court only has his or her evidence in thisregard. At para 53, Irvine J states:
“Because the court usually has only the plaintiff’s evidence as to the extent of their pain, [it] is important that their evidence be carefully evaluated and consideration given to factors that might assist with the court’s assessment.”
In this case, one of the factors that assists the Court in this regard is the fact that all three of the medical experts engaged by the defendant (Dr. Kaar, Dr. Hogan and Professor Harty) could find little or no medical evidence for the pain which the plaintiff exhibited and all of them also noted inconsistencies in her medical examinations, pain responses which were not justified by the alleged injury and exaggeration of injury over a period of years. Indeed, even one of the plaintiff’s own doctors, Dr. Marks, appeared to cast some doubt on the true extent of the plaintiff’s injuries when he suggested that her likelihood of improving was decreased because she was a compensation client.
Causation and the neck injury and the ankle injury
28. As regards the neck pain, the plaintiff complained about a pain in her neck some six or seven days after the incident, which she initially thought might have been related to the manner in which she had slept.
29. While Professor Harty was adamant that the lower back injury could not have been caused by the fall, he was prepared to acknowledge the possibility that the fall caused the neck injury, since in his report he states ‘To give her some benefit of the doubt, one could suggest that she has a soft tissue injury of her neck, which did not become present for about a week after the injury.’
30. In these circumstances and in view of the view of the medical evidence of the plaintiff’s doctors that the neck injury was caused by the fall, this Court concludes that on the balance of probabilities, the injury to the plaintiff’s neck was caused by the fall.
31. As regards the ankle injury suffered by the plaintiff, it is clear that this was caused by the fall.
General damages and having regard to the revised Book of Quantum (2016)
32. In relation to general damages, this Court is obliged by s. 22 of the Civil Liability and Courts Act, 2004, to have regard to the Book of Quantum. The previous Book of Quantum was issued in 2004 and so was somewhat out of date. Accordingly the damages awarded by the High Court in recent years tended to be greater than those set out in the Book of Quantum. However now that the Book of Quantum has been updated, it is this Court’s view that it is important that this Court does have regard to the Book of Quantum 2016, as it is obliged to do under the 2004 Act. This is because, if this Court does not do so it would mean there would be less certainty regarding likely outcomes in personal injury cases before this Court. This uncertainty lessens the likelihood of personal injury cases being resolved without the need for court hearings (whether before the Personal Injuries Address Board or by settlements out of court). This uncertainty leads to unnecessary litigation, which leads to unnecessary and significant costs for defendants and critically also significant costs and risks for plaintiffs seeking damages for their injuries.
33. Achieving greater consistency and proportionality in High Court awards would also seem to be an aim of the Court of Appeal in light of its recent decisions regarding personal injury awards, which decisions are binding on this Court. See for example Anthony Shannon and Rita Shannon v O’Sullivan [2016] IECA 93 where general damages were reduced from €90,000 to €40,000 for the first plaintiff and general damages were reduced from €130,000 to €65,000 for the second plaintiff; Cronin v Stevenson and Russell [2016] IECA 186 where general damages were reduced from €180,000 to €105,000, Payne v Nugent [2015] IECA 268 where general damages were reduced from €65,000 to €35,000 and Nolan v Wirenksi [2016] IECA 56 where general damages were reduced from €120,000 to €65,000. While in Shannon v O’Sullivan [2016] IECA 105, counsel suggested that this line of cases was evidence of a decision by the Court of Appeal to recalibrate damages downwards, Irvine J clarified that these decisions simply applied the proper approach to damages in a series of cases, which resulted in those damages being more just, equitable and proportionate.
34. In light of the foregoing, this Court concludes as follows. The plaintiff suffered a neck injury, which lasted for a period of one year and she has now fully recovered. Her neck injury was not the sole factor to her being out of work during this one year period, but it was a contributory factor, along with her back injury. As such, this Court would classify the neck injury as minor and one which substantially recovered. Accordingly, and having regard to the Book of Quantum, this Court would award her €15,700 in damages for pain and suffering for this injury.
35. As regards the ankle injury, this led to the plaintiff being on crutches for 10 days and was the sole reason she was out of work for a week and it was a contributory factor to her being out of work for the second week. However, she fully recovered shortly thereafter. Accordingly, and having regard to the Book of Quantum, this Court would award her €10,000 in damages for pain and suffering for this minor soft tissue injury to her ankle.
Special damages
36. As regards special damages, a schedule with a figure of €5,702.66 was presented to the Court regarding medications, medical fees etc. incurred by the plaintiff. This schedule was not objected to by the defendant. However, this Schedule does not easily distinguish between those costs which are associated with the ankle and neck injury, as distinct from the back injury and depression. If the defendant wishes to make submissions regarding which costs are associated only with the ankle and neck injury, the Court will hear them. If not, the Court will make the award of special damages in the full amount.
37. As regards other special damages, the plaintiff’s ankle injury had cleared up within a matter of weeks and her neck injury had cleared up completely within a year of the accident. As her failure to return to work during this first year would have been due in part to her neck injury, but also in part due to her back injury, for which the defendant is not liable, this Court will award her damages in respect of lost earnings for 75% of that year, which come to €15,525, based on her salary at that time.
Conclusion
38. Therefore, subject to submissions regarding special damages for medical expenses or the treatment of social welfare payments, this Court would award the plaintiff general damages of €25,700 and special damages of €21,227.66 a total of €46,927.66.
Barry (A Minor) v National Maternity Hospital
[2016] IESC 41
Judgment of Mr. Justice Clarke delivered the 13th July, 2016.
1. Introduction
1.1 I should start this judgment by indicating that I am in complete agreement with the judgment of MacMenamin J. both as to the result of this appeal and as to his reasoning in concluding that the appeal should be dismissed.
1.2 On the basis of the evidence which was before the High Court, the arguments presented to that Court and the arguments made on this appeal, I am satisfied that no other result would be appropriate. However, it seems to me that there is, potentially, another and more satisfactory basis on which to approach the question of damages arising out of a need for enhanced accommodation. As that approach was not the subject of any evidence in the High Court and was not really the subject of any argument either before that Court or this Court, the views which follow are necessarily tentatively expressed. I would leave it to a case in which there was appropriate evidence and in which the issue was fully debated, to reach a definitive conclusion. For the reasons already noted this case is clearly not suitable in that regard. I should turn first to the problem which has been identified in the case law fully analysed in the judgment of MacMenamin J.
2. The Problem
2.1 It is important to start by recalling that the issue with which the Court is faced relates to the proper way in which a court should, in the context of accommodation needs, implement the undoubted principle that a plaintiff is entitled to full compensation for all losses suffered as a result of an established wrongdoing on the part of a defendant but is not entitled to be over-compensated. The fundamental principle of almost all damages claims is that a court should attempt to put the plaintiff back into the position, insofar as money can do it, in which the plaintiff concerned would have been had the relevant wrongdoing not occurred. In cases such as this, one of the heads of damage stems from the fact that a plaintiff may, as a result of serious or catastrophic injuries suffered, require adapted accommodation so as to enable them to live a reasonable lifestyle. Given that the problems which give rise to the need for such adapted accommodation stem from the established wrongdoing of the defendant then it is not disputed that the reasonable cost of providing suitably adapted accommodation forms a legitimate part of a relevant claim.
2.2 The problem is as to how it is appropriate at the level of principle to go about measuring that cost. In a very simple case a plaintiff might already own accommodation which can simply be adapted by the expenditure of money. In such a case the measure of damages will be the cost of the adaptation together with any continuing costs associated with maintaining the property in a suitably adapted form. While there may always be a debate about the details of the calculation in such a case that assessment is unlikely to throw up any significant issues of principle.
2.3 A more difficult question emerges in cases where it is necessary to provide new accommodation because the existing accommodation available to the plaintiff (either the plaintiff’s own property, whether owned or rented, or the property of parents or other relatives, again whether owned or rented) may not be capable of suitable adaption. The issue which emerges in such cases has been fully analysed in the case law which has been dealt with by MacMenamin J. in his judgment.
2.4 On the one hand the cost of buying and adapting suitable premises might be seen as an appropriate starting point for a consideration of the correct amount of compensation. Of course, the fact that a cost would have to have been incurred in providing ordinary accommodation in any event would need to be taken into account as a deduction. But it is likely, at least in many cases, that providing compensation on the basis of purchase (even with such a deduction) may give rise to the possibility of a windfall gain for the estate of the relevant plaintiff. This is so because the property concerned will still be owned after it is no longer required as accommodation for the plaintiff in question and its value will, therefore, be available to increase the size of the plaintiff’s estate beyond that which it might have been had the plaintiff not been injured. On that basis it is argued by defendants that the straightforward solution of assessing compensation by reference to the additional costs (above that which would have existed anyway if there had been no injury) of providing accommodation by buying and adapting a suitable premises amounts to over-compensation.
2.5 On the other hand it is said that to require an injured plaintiff to expend some of their own money (whether obtained from their own pre-accident resources, in the case of a plaintiff who happens to have such resources, or by allocating damages awarded under another heading, in other cases), in order to meet some of the additional costs of a purchase of a property suitable for adaptation, might be said to under-compensate the plaintiff concerned. The logic behind that argument is that a plaintiff who has their own resources should not be required to put those resources into the purchase of a property which they would not otherwise have had to have purchased. This is said to be so because so doing would be to place the plaintiff concerned in a less advantageous position than they would have been had they not been injured. Such a course of action can easily be seen to potentially infringe the principle that the plaintiff should be put back, insofar as it may be possible, into the position in which they were prior to being injured.
2.6 Likewise, if the additional resources required to purchase a suitable property come, not from the plaintiff’s own resources, but from other damages awarded in the case in question, then it is equally said that this amounts to an under-compensation of the plaintiff. This is so, it is said, for those other damages, it must be assumed, will be properly calculated to compensate the plaintiff concerned under each other legitimate head of damages. If, for example, damages are awarded for future loss of earnings then those damages are designed to provide an income for the plaintiff broadly commensurate with the income which the plaintiff might have had if they had not suffered catastrophic injuries. Some of that income might, of course, have been used to provide for accommodation in any event. There could be no problem with making an appropriate deduction to reflect that fact. But to require such a plaintiff to divert an additional part of such damages into the purchase of suitable property, required so that they may enjoy appropriately adapted accommodation, can be argued to reduce the damages in question below that which places a plaintiff in the position in which such a plaintiff could be said to be fully compensated for their injuries.
2.7 From the perspective of a defendant the problem can, therefore, be seen as an over-compensation of the plaintiff but likewise, from the perspective of a plaintiff, the same problem can be seen as an under-compensation. It seems to me that there is a strong argument to suggest that the reason for that problem, and thus the reason for the difficulty encountered in much of the case law, is a failure to properly recognise the distinction between the current (in the accountancy sense of that term) cost of accommodation, on the one hand, and the element of the cost of the provision of purchased accommodation which can be said to amount to a capital investment, on the other. It is in recognition of that difficulty that I tentatively put forward the suggestion set out in the next section of this judgment which is to the effect that the principal focus for the award of damages in respect of accommodation needs should, at least in the vast majority of cases, be on the rental cost of suitable accommodation rather than the cost of purchase. For the reasons already noted I would wish to reemphasise that, because this matter was not fully debated, the suggestions made must remain, at this stage, purely tentative.
3. The True Cost of Providing Accommodation
3.1 The first point to make is that there may not necessarily be a “one size fits all” solution to the problem. Different cases may turn up unusual facts or circumstances which require the court to approach the application of the general principle of attempting to put the plaintiff back in the position in which they would have been had there been no wrongdoing in a manner which may not be suitable in other cases and other circumstances. However, it seems to me that the appropriate starting point for a consideration of the calculation of damages in cases involving a requirement to provide new accommodation (because existing accommodation, even with appropriate adaption, would not be suitable) lies in considering the cost of renting the accommodation concerned.
3.2 The backdrop to that observation is the fact that, at least so far as persons who have sufficient resources are concerned, a decision on whether to rent or buy a home is not an essential part of the provision of accommodation. A rented home is every bit as much a home as a purchased home. There may, from the perspective of one individual or another, be all sorts of reasons which may inform a decision as to which means of providing for a home is preferred. Ownership may be perceived to give greater security into the future. Ownership may be seen as providing a means of acquiring an asset which it might be hoped might appreciate in value (although the recent experience in this jurisdiction has, perhaps, dispelled the previously held view that investment in a family home is necessarily one of the best ways of accumulating capital). There may be issues concerning the respective tax treatments of rent or interest incurred on mortgages which may affect the equation. Many other factors, personal or financial, may also be relevant.
3.3 It must also be acknowledged that there will undoubtedly be persons who do not have that choice to make at all. The current market for private rented accommodation in Ireland has placed the renting of suitable accommodation outside the reach of quite a number of persons. Many cannot now rent at all unless they are lucky enough to secure rent supported local authority housing or have available a sufficient level of State support to be able to meet rental payments. Some, who have greater income, can afford to rent but may not be in a position to purchase either because their income might not be considered sufficient to sustain the level of mortgage which would be required to purchase a suitable property or because they do not have sufficient assets to meet the requirement to put up some of the equity themselves. Doubtless other reasons of that type might arise in the particular circumstances of individual cases.
3.4 A person who might not reasonably be expected to ever own their own house will not necessarily always be entitled to compensation which would put them in the position of owning a house. A similar analysis applies, however, in the case of a person for whom the choice of renting and ownership does exist. Such persons may choose to rent but equally may choose to pay whatever additional costs may be required to become the owners of residential property. While the relative cost of renting and purchase as and between themselves may vary over time, dependent on short term movements in matters such as the rental market, prevailing interest rates and the supply and demand for purchased houses or the like, over time it is almost inevitable that there will be some additional cost in purchasing. This will be so because of the fact that a purchaser not only gets to occupy the purchased house (as will be the case in the event of renting) but also gets to acquire a capital interest in owning it. That extra cost may be in the form of having to put up some money in advance (such as a minimum deposit to secure a mortgage) in circumstances where that money could otherwise be invested. The additional cost may also involve any difference between mortgage repayments (which obviously include a capital element) and rental costs. To the extent that a person may have significant independent assets which they can apply to the purchase of a house then the cost may involve the income foregone in not being able to apply those assets in some other beneficial way. Whichever may be the cost, it is, at the level of principle, appropriate to regard the cost of the purchase of a house intended for owner occupation as involving partly the cost of providing accommodation but also partly the additional cost involved in acquiring an asset.
3.5 The second element of that equation is, for those who have sufficient resources to be able to exercise the choice, an elective element. A person may choose to rent. They may choose to allocate additional resources above and beyond that which it would cost to rent so that they may own. But the allocation of those additional resources is a decision which each person who has the resources to make it can determine in the light of their own view of their own best advantage.
3.6 Viewed in that way the true cost of providing for accommodation is the cost that would be required to rent what ever type of accommodation might be considered necessary. Any additional cost involved in purchase is not truly the cost of providing accommodation but rather is the cost of acquiring an asset. It is for that reason that I consider there to be strong arguments in favour of the proposition that at least the starting point for a consideration of the appropriate damages to be awarded in respect of accommodation needs should be based on the cost of renting appropriate premises. However, it is necessary to take into account the fact that there may be further practical issues which will need to be addressed in the circumstances of many cases. Obviously the precise way in which those considerations might impact on an individual case would require a consideration of the evidence in such a case. However, at this stage it may be useful to indicate some of the general considerations which I consider might arise at a practical level. Those considerations are by no means intended to be exhaustive.
4. Some Practical Considerations
4.1 I should, therefore, start by pointing out that these observations are made very much in the abstract. To the extent that issues such as those which I mention may arise in the circumstances of any particular case then it will be necessary to give full weight to any relevant expert evidence called and the arguments addressed by the parties. This section of this judgment is not designed, therefore, to suggest solutions but rather to identify at least some of the issues which may arise.
4.2 The first, and perhaps most important, question which may arise stems from the fact that there is not, as such, a market for specially adapted accommodation. While it is relatively easy to see how a requirement to compensate by reference to an accommodation need can be dealt with on the basis of providing for rent where ordinary accommodation which is readily available is all that is needed, an undoubted complication arises given that the basis for the assessment of compensation in cases such as this stems from the need to provide suitably adapted accommodation.
4.3 However, there is no reason in principle why it should not be possible to obtain long-term rented accommodation with an agreement either that the landlord carry out suitable adaptions and reflect that fact in the rent or that the tenant carry out the adaptions at their own expense with the landlord reflecting in the rent the fact that the premises may, to some extent, need to be reconverted at the end of the tenancy. Precisely how it would, in such circumstances, be appropriate for a court to conduct a rent-based assessment of damages would necessarily depend on the evidence in the case in question.
4.4 Next there is the problem that any assessment based on rent will necessarily involve an actuarial calculation based on the life expectancy of the plaintiff in question. That gives rise to the unfortunate but common problem that the single assessment of damages model which has, heretofore, operated in this jurisdiction can give rise to injustice for either plaintiffs or defendants where the actual life of the plaintiff in question turns out to be either significantly shorter or significantly longer than the life expectancy estimated at the time of the trial. It is now quite some time since a judge-led working group put forward proposals for periodic payments to remedy that potential injustice. The implementation of those proposals has long been promised and it has been intimated that relevant legislative measures will be introduced in early course. However, the solution to the life expectancy issue lies in such legislation and should not present a barrier to an otherwise appropriate rent-based approach to the cost of accommodation.
4.5 It must also be recognised that it is possible that there will be cases where, for one reason or another, a rent-based approach, actuarially calculated, may give rise to a figure which is equal to or even greater than the cost of actually acquiring and adapting appropriate accommodation deducting, where appropriate, for the costs which would have been incurred in providing ordinary accommodation in the first place had there been no injury. In such a case there could, however, be no injustice to a defendant in requiring the cost of acquisition and adaptation (with appropriate deduction) to form the basis of any award for in such a case the plaintiff would be no better off than they would have been had they simply rented and adapted suitable accommodation. It follows that in such cases any residual capital value in the estate of the plaintiff after death simply results from the fact that it is as cheap or cheaper to buy rather than rent in all the circumstances of the case. There can be no injustice in such a situation.
4.6 Finally, there is the question of plaintiffs where it is reasonable to require that any suitably adapted accommodation also provide for other family members who might reasonably be expected to live with the plaintiff concerned. This may be because of age, of the need to provide regular care, or, in cases of catastrophic injury at birth or in early age, because it is appropriate that the plaintiff concerned should, to the greatest extent possible, be able to enjoy a family life as close as can be achieved to that which would have occurred had they not been injured by the negligence of a defendant. There may, of course, in such circumstances be an additional cost involved resulting from the requirement to obtain suitable rented accommodation which could be adapted but which could also accommodate the other family members who might reasonably be expected to reside there. But such an additional cost is an inevitable and foreseeable consequence of wrongdoing which leads to the kind of catastrophic injuries with which the Court is concerned in this case. The provision of such accommodation is necessary to put the plaintiff in the closest possible position to that in which the plaintiff would have been had there been no injury. That means living in the ordinary way with the plaintiff’s family. Indeed if that situation continues for longer than might ordinarily be expected to be the case precisely because of the level of disability from which the plaintiff suffers then that too is a direct and foreseeable consequence of the wrongdoing.
4.7 Importantly it should also be pointed out that the fact that the proper approach to the calculation of damages may use as a starting point a consideration of the actuarial valuation of the additional cost of renting suitably adapted accommodation does not necessarily mean that a relevant plaintiff actually has to live in rented accommodation. Where a catastrophically injured plaintiff is in a position to make their own decisions then they can, like any other person, make a decision as to whether they wish to allocate additional resources (if they have them) to owning as opposed to renting. But the allocation of those additional resources is, in that context, entirely voluntary.
4.8 In like manner, a person who is not in a position to make such decisions for themselves ought be able to rely on those in whom decision-making power is vested to reach a similar decision about whether it is in the best interests of the plaintiff concerned to allocate additional resources to purchase above and beyond that which might be needed to rent. But in such a case the allocation of those additional resources cannot be said to diminish the resources available to the plaintiff concerned (whether in the form of the plaintiff’s own resources or damages awarded under some other heading) because the decision to purchase rather than rent is again voluntary (even if taken by a person acting on behalf and in the interests of the plaintiff).
4.9 For the reasons which I have sought to analyse I am, therefore, of the view that it would at least be appropriate in a subsequent case to consider, provided the necessary evidence had been led and the necessary arguments made, whether a rental based approach is preferable. If it should transpire, on the evidence, that a rental based approach does not significantly diminish the amount which requires to be provided to secure appropriate accommodation below that which would be needed in the event of a purchase of similar accommodation, then it may well be that defendants cannot be said to have any legitimate complaint about having to provide such a sum. If, on the evidence generally or in the circumstances of a particular case, there is a significant saving achieved by adopting a rental based approach then that would be no injustice to the plaintiff concerned for any decision to purchase, using resources above and beyond those required to rent, will be an elective decision made either by the plaintiff (should the plaintiff have appropriate capacity) or by those acting on the plaintiff’s behalf.
4.10 Such an approach seems to me to potentially be more appropriate as a matter of principle reflecting the fact that the true cost of providing accommodation is the cost of renting same rather than purchasing. The approach also has the potential to provide a practical solution to the problems which have bedevilled the assessment of damages in cases such as this which difficulties are fully set out and analysed in the case law referred to and discussed by MacMenamin J. in his judgment.
5. Conclusions
5.1 I reiterate that I fully agree with the judgment of MacMenamin J. as to the proper disposition of the appeal in this case.
5.2 I have given this concurring judgment for the purposes of tentatively suggesting that, in a case in which the issue was fully explored both in evidence and in argument, it may well be more appropriate to at least consider whether a rental rather than a purchase based method of assessment of the costs of providing suitable adapted accommodation may be more appropriate. Obviously a final decision on whether such an approach was appropriate either in general or in the circumstances of any particular case, would have to await proceedings in which the issues touched on in this judgment (and, doubtless others) were fully debated in the light of appropriate expert evidence.
Judgment of Mr. Justice John MacMenamin dated the 13th day of July, 2016
Introduction
1. Charlotte Barry, the plaintiff/respondent in these proceedings, was born in the National Maternity Hospital on the 9th September, 2005. That hospital is the first named defendant, and is now the appellant to this Court. The second named defendant has been struck out of the proceedings. Consequently, the only reference to a “defendant” or “appellant” herein concerns the hospital.
2. As the result of negligence during the course of her labour and delivery, the respondent sustained a severe hypoxic-ischemic insult. She became severely asphyxiated during her birth. She required resuscitation by way of intubation and ventilation. She developed acute hypoxic-ischemic encephalopathy. She now suffers a severe syndrome of Cerebral Palsy (Spastic Quadriplegia), with marked neuro-developmental difficulties.
3. Many of the headings of damage were agreed and settled. They were ruled by the High Court. This appeal concerns one aspect of the principle of compensation. At one level, it is obvious that no financial award would be adequate to put a young girl of 10 years of age, such as Charlotte, back in the situation in life where she should have been, but for the negligence which occurred. The duty of the courts, nonetheless, is to ensure that, without injustice to the appellant, the respondent receives full financial compensation for what has occurred, in order to ensure that she receives the proper degree of care and amenity which her ongoing condition requires.
4. The specific issue which arises in this appeal relates to what are called special accommodation expenses. In the High Court, the judge, (O’Neill J.), awarded €735,000 under this heading. The appellant submits that the judge failed to apply the approach on accommodation expenses said to have been established in the case of Roberts v. Johnstone [1989] QB 878. The nature of this approach, and how it evolved, requires some consideration. It is first necessary to deal with the factual background of the appeal. There is no cross appeal.
The Background
5. Having agreed that the sum of €875,000 was a proper cost of acquisition of a new property, the parties to this appeal have also agreed that a further sum of €283,000 would be the cost of necessary adaptation of the house to meet Charlotte’s needs. The total cost of acquisition and adaptation, therefore, was €1,158,000, or, in round figures, €1.16 million. It was also agreed that the expenditure of the sum of €283,000 would enhance the value of the new home by €135,000. The value of the respondent’s old home at 7 O’Connell Gardens, Sandymount, was agreed in the sum of €550,000. Damages for the respondent’s future loss of earnings were also agreed in the sum of €350,000, on the assumption that she would have commenced earning the sum of €50,000 per annum from the age of 18 years upwards.
6. The question is what approach may a trial court adopt in calculating accommodation expenses into the future? In this case, this subdivides into the following questions:
(a) whether the value of a family home should be deducted;
(b) whether such deduction should be gross or net of any mortgage;
(c) how to address the question of potential benefits accruing to a plaintiff’s family, thereby giving rise to a potential windfall gain; or
(d) how to avoid creating serious detriment to a young plaintiff, because of a shortfall in the damages, making it necessary to take part of the purchase price of new accommodation from sums awarded for damages under other headings?
The High Court Judgment
7. In the High Court, O’Neill J. described the issue before him in this way:
“In deducting the agreed value of the existing home, the defendants say that if this is not done, in effect, an extraordinary role reversal occurs, in the sense that instead of the plaintiff’s parents providing accommodation for the plaintiff, as would be their normal parental obligation until she reached adulthood, the plaintiff would become the provider of accommodation for her parents and any other siblings. In arguing for a deduction of the agreed value of the existing home, the defendants acknowledge that the plaintiff’s parents will be entitled to have an interest in the property to be acquired, commensurate with their contribution to its acquisition. The defendants further submit that the agreed enhanced value, namely, €135,000, resulting from the adaptation of the new property, must be deducted as being extra to the additional expense of accommodation resulting from the plaintiff’s injuries, in effect, a capital bonus.”
8. The trial judge took the view that the respondent was entitled to compensation for the additional cost of accommodation beyond that which she would, in the ordinary course, herself have incurred in the course of her life, had the capacity to provide her own accommodation not been destroyed by the injuries suffered. In the High Court, the respondent’s case was that the extent of compensation under this heading should be the full €1.16 million. On this proposition, O’Neill J. commented:
“Insofar as the plaintiff’s claim to the entire cost of the acquisition of the new property and its adaptation fails to take into account at all the actual cost of accommodation as distinct from the capital value of the property in which it is provided, and the value of any accommodation provided to the plaintiff by her parents, it fundamentally departs from the ordinary principles for the ascertainment of compensatory damages, and, in my opinion, such a fundamental change to ancient and time-honoured legal principles would require legislative intervention.”
9. The High Court judge took the view that the assessment of compensation for future accommodation needs should exclude an award which might leave intact an appreciating asset in the hands of the respondent at the end of the period for which compensation was calculated. He considered his duty was, rather, to carry out an actuarial calculation as to the capital sum which, if spent at the rate envisaged, would be fully exhausted at the expiry of the period in question. The judge concluded that the respondent was entitled to the entirety of the additional cost of accommodation for the adult portion of her lifespan, but, insofar as the period of her minority was concerned, credit had to go to the appellants for the value of the benefit of accommodation provided by her parents during that period.
10. The parents’ equity in that home was €217,000. Thus, before O’Neill J., the appellant’s position was calculated as follows:
Cost of Acquisition of New House €875,000
Less: Value of 7 O’Connell Gardens €550,000
€325,000
which fell to be multiplied by 3% (the real rate of financial return)
Giving rise to the sum of €9,750.00
The Parties’ Submissions to the High Court
11. It is helpful to now briefly outline the parties’ submissions to the High Court. This makes clear how the judge approached his task. The appellant contended at the trial that the figure of €9,750.00, (see calculation above), should be multiplied by the respondent’s multiplier, having regard to her age expectation, which multiplier was 20.3. This produced a capital value of €197,925. To this figure should then be added the sum of €283,000 (as cost of adaptation or conversion), which came to €480,925. The appellant contended that this figure should be reduced by €135,000 (that is, the enhanced value of the new house), producing a final figure of €345,925, which it was prepared to round up to €350,000, as being the claimed extent of its liability in respect of the cost of future accommodation for the respondent.
12. Counsel for the respondent criticised this approach. He contended that this would fail adequately to compensate his client for costs of accommodation which would be necessary for her. He submitted that the deduction of the agreed value of the parents’ home forced the parents, effectively, to contribute their only asset to compensate their child, thereby relieving the hospital of a portion of their liability. Counsel submitted that if the parents were compelled to do this, it would be grossly unfair to them, because their only asset would then be irretrievably dedicated to the child’s benefit for the duration of her lifetime, thereby depriving them of the opportunity to use the asset to benefit themselves, or for the benefit of Amelia Barry, Charlotte’s sister, born on the 30th April, 2008, or other children who they intended to have, or possibly to use the value themselves later in life. Counsel submitted that such an approach would act in a particularly unfair way upon the parents, in view of the fact that their mortgage on the existing family home was in excess of €330,000, leaving their equity as only €217,000. The respondent’s case, therefore, was that the appellant’s approach entirely failed to give just compensation for the appellants’ wrongdoing, thereby leaving Charlotte and her parents in the invidious position of either not acquiring a suitable accommodation for her at all, or, if that accommodation was to be acquired, making up the shortfall in purchase price by contributions in the form of dipping into the other heads of damage, or, possibly, by the parents themselves having to contribute the gross (and not net) value of their existing home. The result of this, counsel submitted, would be that the parents would find themselves in the position of actually indemnifying the appellant in respect of their wrongdoing.
13. It will be immediately seen, therefore, that the appellant’s position was that, rather than deducting the value of the parents’ equity in 7 O’Connell Gardens (€217,000), it wished to deduct the full market value of €550,000, which, in turn, was to be deducted from the cost of acquisition of the new house.
14. The respondent’s case, in turn, was that to adopt the approach urged by the appellant would be to arrive at an inadequate method of ascertaining just compensation, which had evolved as a result of a misconceived pre-occupation with avoiding a windfall gain to the family or estate of a plaintiff, as evinced by the method of actuarial calculation chosen. Counsel for the respondent submitted that such an approach was wholly inappropriate in achieving the correct balance of justice, bearing in mind the catastrophic consequences which had befallen, both Charlotte and her parents, in every aspect of their lives, all of which had resulted from the hospital’s wrongdoing.
15. One might comment here that the stance adopted by the appellants in the High Court is an apt illustration of the way in which the Roberts v. Johnstone principle can operate. It is open to the criticism that it is not always an appropriate method for arriving at truly just compensation, and lays too great an emphasis on seeking to avoid a windfall gain to the family or estate of a plaintiff, which may result from the method of actuarial calculation chosen. Counsel for the respondent submitted that this method was inappropriate in achieving a correct balance of justice, bearing in mind the catastrophic consequences, not only for the child herself, but for her parents in every aspect of their lives.
The Trial Judge’s Reasoning
16. The trial judge concluded that the appellant was entitled to a credit commensurate with the value of the benefit to the respondent of having accommodation provided for her during her childhood or minority. The extent of that credit was to be limited. He concluded that the hospital was entitled to a credit commensurate with the value of the benefit to the child of having accommodation provided for her during her childhood or minority. The extent of that credit was to be limited, in order to reflect the value of that benefit and no more. The approach he adopted requires close consideration. He calculated that the extent of the benefit was that Charlotte was currently one of a family of four. She lived in a house worth €550,000, provided by her parents. The parents had both legal and moral obligations with regard to the nature of the occupation of a family home by any individual child, and having regard to the number of adult and child occupants of the house during the child’s minority. The judge, therefore, took the view that the child’s benefit in this regard could not be considered to exceed 1/6th of the value of the house. He considered that the existence of a mortgage on the house was immaterial, because that was an essential ingredient in the way Charlotte’s parents discharged their legal and moral obligations to provide accommodation for their family. What mattered, he considered, was that there was a house worth €550,000 which the family as a whole, and individual members of it, enjoyed to a certain extent. He concluded it would be wholly unjust to ascribe to the respondent the entire value of the property, as if this was for her exclusive benefit. He was satisfied that a just apportionment of the value of the property, to reflect the respondent’s occupation of it during her minority, should be a 1/6th share, for which credit was to be given to the appellant.
17. The judge took the view that the parents’ obligations to provide accommodation would, in all probability, end at the expiration of Charlotte’s minority, or soon afterwards. This corresponded to approximately one-half of her total life expectancy of 35 years. Thus, he concluded, it necessarily followed that, insofar as the appellant sought to have the entire value of the current family home taken into account as representing the value of, or part of the value of, the child’s future accommodation for the duration of her life expectancy, there must be apportionment of that value also. This would reflect the fact that, upon reaching adult status, the respondent, but for her injuries, would no longer have had that accommodation available to her as a right, nor indeed, as a matter of probability, would she have continued to avail of it, having assumed normal adult status. He assumed that, from then on, she would have availed of the normal opportunities of life, including obtaining her own accommodation. Thus, the judge found that an order to reflect the fact that the family home would, but for her injuries, only be available to the respondent for approximately half of her current expected lifespan, the benefit to her of her share in the accommodation should be reduced by one-half. He concluded that the benefit in that regard was equivalent to one-twelfth of the value of the house.
Legal Authorities
18. In the absence of any clear authority on this specific issue in our jurisprudence, the High Court judge is hardly to be blamed for seeking out some legal authorities at least addressing certain principles which would assist him in the difficult task. He referred, therefore, to the decision of Walsh J. in this Court in Doherty v. Bowaters Irish Wallboard Mills Ltd. (Doherty) [1968] I.R. 277 (“Doherty”).
19. Doherty was delivered almost half a century ago. Then, there were different assumptions regarding awards of damages to catastrophically injured persons. The plaintiff in Doherty sustained catastrophic injuries, as a result of which it was necessary for him to obtain accommodation. In the course of his judgment, Walsh J. did enunciate certain dicta therein on the assessment of compensation for future accommodation needs of a disabled person. He appeared to out-rule the possibility that an award of compensation might leave intact any enduring or appreciating asset in the hands of a plaintiff at the end of the period for which compensation was calculated.
20. O’Neill J. decided to apply this dictum. He considered that the appropriate manner for compensating for a future loss, in a case such as this, was by an actuarial process, operating so as to ensure that the capital sum, as spent at the rate envisaged, would be fully exhausted at the end of the period in question.
21. I would comment here, however, that the trial judge appeared to consider himself bound by the judgment of Walsh J. in Doherty, with which O’Dalaigh C.J. agreed. But, in fact, this judgment was in the minority on the damages issue. The majority judgment on the question of damages was that of Lavery J., with whom Haugh J. and O’Keeffe J. agreed. Doherty does not directly address the issue in this appeal. Consequently, the High Court judge was not obliged to follow Walsh J.’s dicta, although these might have appeared to be consistent with the decision of the United Kingdom Court of Appeal in Roberts v. Johnstone [1989] AC 878. Prior to a consideration of the approach to be adopted here, certain general observations may be appropriate about this appeal.
Relevant Factors
22. This is a case which stands on its own facts. Charlotte had to be accommodated in new accommodation. This is not a case where special facilities could be installed in her existing house. It would be possible to compensate a plaintiff who owns a house for any depreciation in value for alterations such as modifying doorways to accommodate a wheelchair, installing lifts, or lowering working surfaces. The installation of such facilities would very likely have the effect of reducing the value of the accommodation. A prospective purchaser might well wish to restore the accommodation to its normal condition, and if so, would reduce the purchase offer to allow for such expenditure. If evidence established that such alterations had actually reduced the capital value of the accommodation by a certain sum, then the special damages would be increased by that amount to compensate for this element of loss. That is a simple case, where a plaintiff does not make a windfall gain and, therefore, there is no objection to an award of full reasonable cost of the facilities.
How the Law Evolved: George v. Pinnock
23. A more difficult problem arises where a plaintiff has bought, or intends to buy, the accommodation needed to meet a disability. The problem is, how to value the cost incurred as against the benefit of having a capital asset in the new accommodation? In George v. Pinnock [1973] 1 WLR 118, Orr L.J., in the Court of Appeal of England and Wales, observed that it would be wrong to award the full capital cost of acquiring a house. He held:
“An alternative argument advanced was, however, that as a result of the particular needs arising from her injuries, the plaintiff has been involved in greater annual expenses of accommodation than she would have incurred if the accident had not happened. In my judgment, this argument is well founded, and I do not think it makes any difference for this purpose whether the matter is considered in terms of a loss of income from the capital expended on the bungalow, or in terms of annual mortgage interest which would have been payable if capital to buy the bungalow had not been available. The plaintiff is, in my judgment, entitled to be compensated to the extent that this loss of income or notional outlay by way of mortgage interest exceeds what the cost of her accommodation would have been, but for the accident.” (at pp. 124/125)
24. But, as the learned authors of Kemp and Kemp, on the Quantum of Damages, (Volume I, Sweet and Maxwell, London 1992), then pointed out, the practical difficulty with this approach was that, if one applied the appropriate multiplier to the annual expense calculated on either of these bases, the result was often the same as the capital cost of the accommodation. The learned authors pointed out that the court, in fact, had to make some arbitrary deduction from the amount which would have been reached by applying the usual multiplier to the annual expense. The authors wrote:
“The end result was, in reality, a figure plucked from the air. The court struggled with this problem for years.”
Roberts v. Johnstone
25. In Roberts v. Johnstone [1989] Appeal Case 878, the Court of Appeal sought to combine the approach outlined by Orr L.J. in George’s case, with reasoning previously adopted by Lord Diplock in Wright v. British Railways Board [1983] 2 AC 773. The court regarded the purchase of residential property, as the equivalent of the purchase of an investment secured against the risk of inflation, and so considered 2% an appropriate return on the net extra capital expenditure, rather than the higher net percentage rate, which would be payable by a plaintiff on a mortgage of the property.
26. The effect of this ruling was that damages in respect of the purchase of special accommodation were to be assessed by taking the multiplicand as being 2% of the net capital cost of the accommodation, and then applying it to the multiplier, which would be applied to any other annual expense continuing for the rest of the plaintiff’s life.
27. The authors of Kemp and Kemp gave an illustration by way of one hypothetical example, where a plaintiff was aged 30 years and had a normal expectation of life. The conventional multiplier to apply in such a case to expenses continuing for life would be 16. Thus, hypothetically, the calculation would be:
Sale Price of Previous Property £60,000
Purchase Price of New Property £100,000
Cost of Modifications £10,000
These modifications, in fact, would reduce the value of the new property on the open market to £95,000. The hypothetical plaintiff had incurred wasted capital expenditure of £15,000. This was recoverable in full, as special damages. Such a plaintiff, thereby, would have a capital asset worth £95,000. From this should be subtracted the value of the previous capital asset of £60,000, giving rise to a difference of £35,000. 2% of £35,000 is £700.00, to which should be applied a multiplier of 16. Thus, damages would be:
£700.00 x 16
= £11,200
Wasted Expenditure
£15,000
Legal Costs of Sale and Purchase
£ x
Removal Costs
£ y
Total Damages under this heading
£26,200 + £x + £y
28. The approach adopted in Roberts clearly constituted a re-appraisal of the approach previously adopted in George v. Pinnock. The effect of George v. Pinnock was to allow a plaintiff to borrow in order to pay either for the required accommodation, or for adaptation of a house. The aim in Roberts, however, was to avoid an outcome whereby, in the case of a young disabled plaintiff, with a multiplier at the top of the range, the resulting amount would significantly exceed the capital cost upon which it was intended to be interest. In Roberts the chosen multiplier was 16, which, when applied to a mortgage rate of 7%, actually took the figure above the cost of the new accommodation, specifically to 112% of the cost.
29. In Roberts, Stocker L.J., in the Court of Appeal, took the view that the court could not award this amount, as this would not accord with the principles lying behind the reasoning of the court in George v. Pinnock. The Court of Appeal, therefore, adopted a 2% interest rate, which had previously applied in the case of non-pecuniary loss in personal injury cases by the House of Lords in Wright v. British Railways Board [1983] 2 AC 773. However, this rate was the interest applicable to non-pecuniary losses in personal injury claims. It is not easy to discern why there should have been such allowance for interest rates in the first place.
30. The practical result of the adoption of a 2% rate, at a time when multipliers were worked out on a 4.5% discount rate, was that a plaintiff would, at best, obtain by way of damages in the region of one-third of the capital cost of their new accommodation; that is, 30% on a multiplier of 15; and 36% on a multiplier of 18.
31. As an unintended outcome, plaintiffs were forced to resort to monies awarded for general damages for non-pecuniary loss, and, to the extent that they could afford, to allocate part of the award for loss of earning capacity for the remaining funding of the special accommodation needs to which they were actually entitled.
32. O’Neill J. referred to a subsequent English High Court decision of Willett v. North Bedfordshire Health Authority [1993] PIQR, Q166. There, the cost of alterations was regarded as part of the capital cost of the property, and included in the 2% calculations. Hobhouse J. held in that case:
“In Roberts v. Johnstone a similar item was not included in the capital value allowance of the property. The matter does not appear to have been the subject of argument. I consider there is no escape from the logical and proper approach of treating appropriate capital expenditure, which is incurred after the purchase, which enhances the value of the house, in the same way as expenditure which is incurred in the acquisition of the house itself. Any other approach produces not only mathematically and logically inaccurate results but also an unjust result.” (Q173)
The Trial Judge’s Consideration of the Various Approaches
33. In the instant case, O’Neill J. concluded, as did the Law Commission in the United Kingdom, that the approach adopted by the High Court in Willett to the cost of alterations was preferable to that taken in Roberts. He reasoned the approach was more consistent with the core principle applicable to the acquisition of assets with an enduring capital value as, for example, set out in Roberts v. Johnstone.
34. Adopting this approach, therefore, O’Neill J. identified that portion of the cost of alterations which did not produce any enhancement of value, which is treated as a wasted or wasting asset, and then looked at the balance of the cost of alterations, which produced an enduring capital value which was then treated in exactly the same way as the purchase cost of a new house, for the purposes of calculating compensation to be paid by a wrongdoer. To avoid putting the full enduring capital cost in the hands of the respondent, he decided the compensation should be calculated on an actuarial basis on the assumption of a 3% return on capital, multiplied by the appropriate multiplier in this case, which was 20.3%. The agreed alterations were €283,000, and the enhanced value resulting was €135,000. This meant that of the €283,000, €148,000 was to be seen as a wasted, or wasting, asset. The remaining €135,000 was, therefore, to be considered as an enduring capital asset, and be treated accordingly.
35. The judge then took the figure of €135,000 and treated it in the same way as the purchase cost of a new house, for the purpose of calculating compensation. Thus, he took a return on capital of €135,000 as being €4,050, and multiplied that sum by the appropriate multiplier, which was 20.3. Taking these two figures together, then, he added the sum of €82,250, together with €148,000, giving rise to a figure of €230,215 as the cost of alterations.
36. Accordingly, the calculation of the figure of the cost of accommodation was as follows:
Purchase Price of House
€875,000
–
€45,833 (1/12th of €550,000)
=
€829,167
x 3%
=
€24,875.01
x 20.3
€504,962.70
Plus: Cost of Alterations
€230,215.00
Giving Rise to a grand total of:
€735,177.70
37. In engaging in this process, the trial judge adopted what can only be called a modified Roberts v. Johnstone approach. I do not say this in a spirit of criticism, but rather merely to point out the difficulties which a trial judge can face in seeking to do justice in circumstances where one approach, which may achieve justice, fails to achieve a just outcome in another case.
Is There One Exclusive Method?
38. In fact, there is no, one, exclusive method of assessment appropriate to every circumstance in a situation of this kind. However, there is always one proper criterion by which the adequacy of a particular method may be judged. It is, whether or not the result of the assessment fairly makes good the financial loss incurred. By adopting this principle, the law establishes a proper measure of compensation for pecuniary loss. The actual process of assessment can only then be a matter for reasoned estimation and computation. Kemp and Kemp refer to observations by Stephen J., and Australian judge, albeit in a minority judgment, in Todorovic v. Waller, 37 ALR 481:
“Rules and practices develop in the process of assessment, and no doubt tend, by their judicial adoption in a legal system governed by precedent, to become current orthodoxy. But since the medium of compensation is money, whose purchasing power and income yielding qualities may change over time, a particular process of assessment, attuned to a particular state of the medium, may come to be no longer appropriate. It follows that, since the sole function of the process of assessment is to attain what the law has fixed as the proper measure of compensation, there can be no place in the process for fixed rules of law; instead the process must be capable of adjustment in the face of changes in the quality of the medium of compensation. The current acceptability at any time of a process of assessment will depend, and depend only, upon whether or not its outcome fairly corresponds to what the law has set as a proper measure of compensation”.
How This Appeal Evolved
39. I turn now to the evolution of this appeal. When the matter first came before the Court, one might have inferred that this was to be a test case. A true test case, properly so called, is one where a court is asked to pronounce the law on a question of legal principle. The outcome will have a decisive bearing on the result of a range of cases, sometimes of exceptional public importance. Quintessentially, the issues will be well defined. The potential outcomes may significantly differ, dependent on the decision of an appeal court. The effect or principle of the decision is to have a precedential effect.
40. But, as matters turned out, this is hardly the position here. The task of the Court has been reduced in scope, as a result of the way in which the stances of both the parties have developed. Indeed, as will be seen, on one view, the actual difference between the positions adopted by the appellant and respondent, have now faded into relative insignificance.
The Issue Before This Court
41. What is before the Court is one, single, case. The respondent is content with the High Court award. The question, then, is whether the appellant can persuade this Court that the High Court judge erred in a way that it significantly altered the outcome of the case before him, and created an injustice to either party? As we will see, one might cavil with the manner in which the High Court judge arrived at the result. But, this is not the point. The question is, rather, whether this Court should interfere with the High Court judgment? Arising from the various issues canvassed in this appeal, one is alert to many possible pitfalls. What is less easy is to arrive at any principle of general application on this issue, where, plainly, the Roberts approach has imperfections and can create injustice. Moreover, the task is made more difficult where no, one, alternative, principled approach is put up which can achieve a just balance between plaintiffs and defendants, on a universal basis.
42. What follows, therefore, is a brief survey of case law, which follows the modest aspiration of seeking to illustrate some of the approaches adopted in the neighbouring jurisdiction. This judgment cannot enunciate some general principle of application, therefore. Ultimately, the question must come down to this, was the High Court judgment so wrong in its approach or outcome that this Court should interfere with the award?
43. As indicated, the judge awarded €735,000 under the accommodation expenses heading. It is only fair to point out that the appellant has indemnified the respondent in relation to all or any costs from the appeal, and also indicated that she will not suffer from any deduction resulting from the outcome of this appeal.
How the Parties’ Differences Narrowed
44. The extent to which the issues have further narrowed can be aptly illustrated in this way. In the High Court, the appellant took the view that the sum of €350,000 would amount to adequate compensation under the accommodation heading. The respondent, by contrast, asserted the sum required was €1.16 million. These remained the positions when the matter first came before this Court on appeal. Coincidentally, perhaps, the trial judge’s award of €735,000 fell just short of a mid-point between those two extreme polar figures. But, as matters further developed in written submissions, and as the issues were further refined in argument, the appellant’s position was, ultimately, that an award of €692,000 would not have been unjust, dependent upon the manner in which the decision in Roberts v. Johnstone was applied. What lay between the parties, ultimately, therefore, was the High Court award of €735,000, and the appellant’s final position, asserting that justice might have been done with an award of €692,000.
45. As an appendix to this judgment, there is a spreadsheet, prepared by the appellants. This sets out the manner in which a number of different calculations were (or should have been) arrived at.
46. Viewed from the left column, Option 1, “Plaintiff’s Case”, deals with the plaintiff/respondent’s calculations, but with no actuarial calculation whatsoever. This leads to the figure of €1,158,000. Option 2 is the plaintiff’s case calculated on an actuarial basis, which gives rise to an award of €763,090. The third column from the left is the trial judge’s judgment, which is calculated on an actuarial basis, but where there is a deduction of €45,133.00, being 1/12th of the total value of the house of €550,000. The fourth column sets out the appellant’s case, if predicated on a full deduction of €550,000, i.e. the full value of the family home, without making any deduction for the mortgage, or the respondent’s attributed share therein. This gave rise to a total figure (A + B + C) of €428,140. The fifth column from the left takes into account two apparent miscalculations, that is, a failure to take into account the increase in value as a result of adaptations, either on an actual, or an actuarialised, basis. This gave rise to a figure, which was that advanced in the High Court, of €345,925. To the extreme right, is the appellants’ ultimate position, correctly making an attribution for increasing value of the adaptations, and thereafter subjecting the same to an actuarial process. On that basis, the appellant’s total figure comes to €692,446, which, as can be seen, is not far from O’Neill J.’s ultimate figure.
47. Obviously, there are, what might best be described as “improvised”, elements in O’Neill J.’s approach. The fundamental question is whether justice was done? To an extent, the question now answers itself. In my view, whatever the methodology, the outcome was correct.
The English Authorities Referred to On Appeal
48. It would not be doing justice to the case advanced by the appellant without adverting to the range of authorities which were brought to our attention. These are largely decisions of courts of first instance in England and Wales. But, they are nonetheless of interest for reasons of explanation in the conclusion section of this judgment.
49. Wells v. Wells [1999] 1 AC 345 is the exception. There, the Court of Appeal allowed for a discount rate reduced from 4.5% to 3%. The position of the plaintiff there was also altered by the use, in place of the 2% rate of interest for non-pecuniary loss of the discount rate, a revised 3%, as previously adopted by the House of Lords in Thomas v. Brighton Health Authority [1999] 1 AC. I refer hereafter to the plaintiff or ‘claimant’ interchangeably. In Wells, the House of Lords overturned the Court of Appeal’s 2%, and restored the 3% attributed by the trial judge, who had been prepared to derive the multiplier from a new discount rate.
50. I turn then to the illustrative judgments by Courts of First Instance. In the High Court judgment of Oxborrow v. West Sussex Hospitals NHS Trust [2012] EWHC 1010 QB, the claimant was so catastrophically injured at birth that he was expected only to live to the age of 21 years. Accommodation would be required only for a comparatively short time, starting from the date of trial. This led to a small multiplier of around 13, which, when applied to the 2.5% discount rate, provided the plaintiff with a little over 30% of the value of the property envisaged. In Oxborrow, there was, under the U.K. Rules of Court, an application for an interim payment on account of damages, to provide suitable accommodation for the plaintiff. His counsel argued that Roberts should not apply, and there should be adopted a solution to the effect that the plaintiff be given the full purchase price, but with a charge on the purchased property in favour of the defendant, which would be realisable on the claimant’s death. I make no comment on this suggestion, other than to say this is an approach which appears to have found favour in other judgments (see Clarke J.’s concerning judgment). It can, however, give rise to a concern on the part of indemnifiers regarding a potential liability in the future, in circumstances which cannot be foreseen.
51. Both M (A Child) v. Leeds Health Authority [2002] PIQR Q46, and Iqbal v. Whipps [2007] LS Medical 97 show nuanced approaches to Roberts v. Johnstone. In the former, Sullivan J., then a High Court judge, had to deal with a situation where the plaintiff, her brother and her parents lived in a detached house before the negligence occurred, but thereafter had moved into a bungalow, purchased and adapted to meet the plaintiff’s needs. The defendants sought to deduct, during the period, for which the claimant was expected to share the house with her family (up to the age of 25 years), the value to the claimant’s parents of having a house provided free of charge for the whole family. On this, the judge commented:
“I come back to the basic proposition, which is that this is a compensation claim made on behalf of M. It is intended to compensate her for the effects of her disability. While she, for the purposes of this calculation, notionally lives at home with her parents until the age of 25, it seems to me that she is in no different position from any child who could not reasonably be expected to go out into the market place and buy accommodation.”
52. A further deduction was sought in respect of the value of the property which, if the plaintiff had not been injured, she would have been likely to have purchased herself when she left home. The judge accepted that such a deduction was appropriate from the time when the claimant could have been expected to leave the family home and acquire her own accommodation.
53. In Iqbal, (cited earlier), the claimant/plaintiff and his parents had been living in rented accommodation. That rent was paid by means of housing benefit, since the claimant’s father was unfit to work. The family moved into a suitably adapted bungalow purchased from the claimant’s damages. The defendant contended that allowance should be made for notional rent payable by the claimant’s parents, and equivalent to the amount previously paid by way of housing benefit. It was contended that the claimant’s parents would still be entitled to housing benefits, if he entered into a tenancy agreement with the claimant’s representative. There was, it was said, no reason why the claimant’s parents should not pay rent to the plaintiff, as they had previously paid it to their previous landlord. The defendant’s counsel relied on Roberts v. Johnstone, and the deduction that had been made in that case to reflect the value of the previous family home. He submitted that there was no reason why this should not also apply to a case where the family’s previous property had been rented. But, Bell J., the High Court judge, held that the defendant’s argument failed for practical reasons, in the particular circumstances of the case. The plaintiff’s parents were not actually paying rent. The arrangement suggested by the defendant’s counsel would be cumbersome, and would merely result in money being transferred from one public body to another. The claim was brought by the claimant himself so that the deduction of notional rent could be justified only by finding that the failure by the plaintiff (through his receiver, or the U.K. Court of Protection), to demand rent from his parents constituted an unreasonable failure to take steps to mitigate his loss. It could not be characterised as such.
54. Bell J. commented:
“More generally, it is not just to deprive parents of the incidental benefit of living rent free, when there are so many sacrifices on their part, most obviously the detriment to their quality of life, which must go uncompensated under our laws of tort, however high the award in their child’s favour.”
55. In Whiten v. St. George’s Healthcare NHS Trust [2011] EWJHC 2066 (QB), counsel for the defendant suggested that the claimant should give credit, as against the capital value of the new property for the value of the property that, had he not been injured, his parents would have owned and the family would have lived in. Swift J. identified the problem which arose in M and Iqbal as being that the claim was brought on behalf of the claimant and not his parents. She considered it wrong, in principle, for the value of a property that would have been owned by the claimant’s parents to be deducted from the value of the new property to be owned by him. To make such a deduction would also be unfair to the claimant. It would inevitably result in him being inadequately compensated for the loss of investment income on the capital value of the new property. The judge pointed out that it was not the claimant who had been relieved of the expense of purchasing a home, it was his parents. Yet the loss would fall on him.
56. The judge commented:
“I recognise that, in Roberts v. Johnstone, a deduction was made for the value of the claimant’s parents’ home. However, as I have already said, it appears that the claimant’s advisers in that case had invited the court to make the deduction, so that the issue was not argued before the lower court or the Court of Appeal. The fact that neither court queried the concession made by the claimant does not necessarily imply that they “approved” it.”
57. She went on to consider the possibility of the parents paying rent for occupying the accommodation, and for the sum paid by way of rent to be deducted from the claim for his annual loss of investment income on the capital value of the new property. She pointed out, however, that, in some cases, this would not be possible, because parents would lack the financial resources to pay rent. There would, moreover, be a risk that the parents’ ability to pay rent might change over time. In that event, a plaintiff would end up out of pocket, if, at trial, a deduction had been made from the annual claim for investment income on the capital value of his new property, in order to take account of rent which was not, in fact, paid.
58. In Whiten, the court rejected a suggestion that the parents should pay rent. It was to be a matter for discussion between the plaintiff’s parents, plaintiff’s deputy, and possibly the Court of Protection. As had been pointed out in Iqbal, if there was no agreement that rent should be paid, the only way that a court could make a deduction of the notional amount of the rent from the claimant’s damages, was to characterise the failure on the part of the claimant to demand rent, as a failure to mitigate his loss. The ordinary principles of mitigation of loss would require the defendant to prove the failure by establishing that the claimant had unreasonably failed to take certain mitigating steps. The plaintiff’s parents indicated that, because of the severity of their child’s cognitive disabilities, they would intend that he should live with them for the rest of his life. The judge pointed out that this was a considerable commitment on their part. It was true that there would be paid carers. Nevertheless, the child would always function at the level of a young child, and his parents would remain, ultimately, responsible for him. His condition would mean that he would require a considerable amount of emotional and other support from them. His disabilities would, inevitably, restrict the range of choices open to them in the future. If they were to take holidays, their destination and mode of travel would have to be suitable for their child. If they wanted to undertake leisure activities as a family, those activities would have to be tailored to meet his requirements. Once they are in the new property, it would be difficult or impossible for them to move again, because of the substantial costs of adapting another property for the claimant. The judge observed (at para. 468):
“In these and many other ways, their quality of life in the future will be adversely affected. Having regard to those factors, I do not consider that a failure on the part of the claimant (or those acting on his behalf) to demand that his parents pay rent to him can properly be regarded as “unreasonable””
59. Swift J. continued, at para. 469:
“The factors I have described above will be present, to a greater or a lesser extent, in the vast majority (if not all) cases involving children with severe disabilities, where the family has to move to alternative, disability-related accommodation. The context and circumstances of those cases will not, in my view, be appropriate for a finding of a failure to mitigate loss to be made. The view expressed by the judge in Iqbal – to the effect that it is not just to deprive parents of the incidental benefit of living rent free having regard to the uncompensated effects of the defendant’s negligence on them – can perhaps be regarded as another way of expressing the same conclusion.”
60. For those reasons, the judge rejected the defendant’s contention that a deduction should be made from the annual sum, calculated pursuant to Roberts v. Johnstone, up to the time when the claimant might have expected, had she not been injured, to have acquired a property of her own. Much the same approach appear to have been adopted in later cases (see Ellison v. University Hospitals of Morecambe Bay NHS Foundation Trust, The High Court, Neutral Citation [2015] EWHC 366 (QB); Warbyj; Robshaw v. United Lincolnshire Hospitals NHS Trust, Neutral Citation No. 2015 EWHC 923 (QB)).
Conclusion
61. I have referred to these, clear and comprehensive judgments from the neighbouring jurisdiction for two reasons. First, because they indicate the degree to which judges at all levels have sought to adopt a practical and flexible approach in order to do justice. Second, for the reason that the judicial observations are generally to the effect that, in the event of there being an injustice, the courts have frequently taken the view that a degree of injustice should fall more against a defendant, rather than against a plaintiff. The judgments show the degree to which the calculation of damages in catastrophic injury cases can become a highly technical issue.
62. Judges in appeal courts necessarily operate in a somewhat different environment from courts of first instance. On appeal, the focus is upon identification as to whether there has been an error in principle. But, appeal courts do not, of course, lose sight of the fact that it is the parents who, on a day by day basis, will have to take care of their child, who, through no fault of theirs, sustained injuries.
63. It seems apposite, in this context, to repeat a further observation by Stephen J. in Todorovic, cited earlier, which accurately summarises the choices a court must make. He said:
“While there may be no one exclusive method of assessment appropriate to every circumstance, there is but one criterion by which the adequacy of any particular method may be judged; it is whether or not the result of the assessment fairly makes good the financial loss incurred.”
He continued:
“The law, by insisting upon this principle, has established the proper measure of compensation for pecuniary loss; the actual process of assessment can then only be a matter for reasoned estimation and computation.”
64. In this appeal, we are asked to conclude that the trial judge fell into error. I do not deny that the approach he adopted was perhaps unorthodox. It may not have fully accorded with a Roberts v. Johnstone approach. Yet, it is impossible to conclude that any injustice was done. There has been no cross-appeal. The outcome is little different from one of the calculations which the appellant has put forward.
65. In conclusion, I would reiterate, this judgment does not, and cannot, create any new paradigm for calculation of damages in these cases, still less does it create any further burden on indemnifiers. The Court is simply faced now with arriving at a just adjudication on one single case. To my mind, although the approach was unusual, the outcome achieved proper compensation without injustice to either party. I would not, therefore, interfere with the learned High Court judge’s decision. I would affirm that decision and dismiss this appeal.
APPENDIX
Plaintiff’s Case O’Neill J.’s Judgment Defendant’s Case Defendant’s Case
Option 1 Option 2 Option 3 Option 4 Miscalculated
No Actuarial Actuarial Actuarial Actuarial Actuarial Actuarial
€0 €0 €45,833 €550,000 €550,000 €116,000
Deduction Deduction Deduction Deduction Deduction Deduction
€ € € € € €
New Home 875,000 875,000 875,000 875,000 875,000 875,000
Deduction 0 45,833 550,000 550,000 116,000
875,000 875,000 829,167 325,000 325,000 759,000
3.00% 26,250 24,875 9,750 9,750 22,770
20.3 875,000 532,875 504,963 197,925 A 197,925 462,231
Adaptations – Increasing Value 135,000 135,000 135,000 135,000 0 135,000
3.00% 4,050 4,050 4,050 4,050
20.3 135,000 82,215 82,215 82,215 B 0 82,215
Adaptations – Wasting 148,000 148,000 148,000 148,000 C 148,000 148,000
Total 1,158,000 763,090 735,178 428,140 A+B+C 345,925 692,446
Maloney v Dunnes Stores (Newbridge) Ltd
[2017] IEHC 208, Barton J.
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 24th day of February, 2017.
1. These proceedings arise as a result of an accident which occurred on the 16th of May 2012, in the course of the Plaintiff’s employment by the Defendant at its supermarket premises, Newbridge, County Kildare.
2. The Plaintiff was born on 25th February, 1981. She is married with two children aged 6 and 9 and resides at 22 Castlebawn, Kilmeague, Naas, Co. Kildare. She is a long term employee of the Defendant having been employed as a sales assistant for approximately 17 years; following a period of recuperation she returned to work in May, 2015.
3. The occurrence of the accident is not in controversy between the parties. The Plaintiff was sitting at checkout number 10. She got up from her stool and as she turned to exit the checkout operator’s position her right foot caught a loose cable causing her to fall and injure her right knee. In Reply to Particulars the Plaintiff stated that the accident occurred when she was leaving the checkout to go on a tea break, however, she subsequently told her engineer, Mr. Kirwan Brown, that a customer needed assistance with lifting shopping into a trolley from the bagging area of the checkout. This apparent contradiction was explored at trial. In evidence the Plaintiff was a little uncertain in her explanation for what she did; to the best of her recollection it involved assisting a customer who was present at the checkout.
4. The dimensions of the checkout and checkout stool are such that in order to allow the checkout operator to exit the checkout till position, it was necessary to push the checkout stool backwards to create sufficient space between the stool and the checkout to pass. The checkout dimensions were given in the report of her engineer which was admitted as an aid memoire which also included photographs of the checkout area of the store and of checkout number 10.
5. The Plaintiff’s evidence was that having pushed her stool back and having stood up, she turned to her left and having done so her right foot got caught in some loose cabling which was located under the checkout as a result of which she fell forward, striking her right knee heavily against the vertical upright of the checkout counter as seen close up in photographs 9 and 10.
6. The accident was recorded on CCTV, however, the footage was subsequently mislaid. Nothing of significance turns on that fact since the Defendant accepts that an accident involving the Plaintiff occurred at the checkout as described.
7. She gave evidence that prior to the date of the accident there had been safety at work meetings at which the problem of loose cabling under checkouts in general had been raised as an issue though she herself had not attended any of those meetings. In 2010, while she was on maternity leave, the Plaintiff recalled that a colleague had phoned her to say that she had been involved in an accident in what transpired to be similar circumstances to those involving the Plaintiff.
8. Although she was aware of that accident and had also been aware that the issue of loose cabling had been raised at safety meetings, the Plaintiff’s evidence was that she had become accustomed to the presence of the loose cabling to the point that she was no longer particularly conscious of it; she did not tidy it away herself nor did she ask anyone else to do so. As far as she was concerned complaints had been made and she left it at that, it was an issue to be addressed by the Defendant.
9. Under cross examination it was put to the Plaintiff that when she got up from her stool and pushed it back that she would have been able to see the cabling had she been looking down. Shortly after the accident, a colleague took a photograph of checkout number 10 which showed the loose cabling on which the Plaintiff had tripped.
10. Although the Plaintiff may well have been able to see the cabling had she been looking down at her feet as she stood up, her evidence was that she was concentrating on leaving the checkout and was most likely looking at the customer whom she was assisting at the time. Subsequent to the accident the loose cabling was gathered up and secured in the manner shown in the photographs taken by Mr. Kirwan Brown.
11. His evidence was that loose cabling in or about floors and desks or tables in the workplace are a known hazard and that that was particularly so in the circumstances of this case. The hazard created by the loose cabling should have been and could have been easily eliminated by gathering it up and tidying it away as it had been after the accident.
Conclusion on liability.
12. I observed the Plaintiff during the trial. She impressed me as a witness on whom the Court could rely and I am satisfied that she gave truthful evidence, which I accept, in relation to the circumstances of the accident, to her injuries and in respect of her return to work. I make the same observation and finding in relation to the evidence of Mr. Kirwan Brown. His was the only expert engineering evidence available to assist the Court. No other liability evidence was led.
Conclusion on the liability of the Defendant.
13. I am satisfied that the accident occurred in the way, manner and circumstances as described by the Plaintiff in her evidence and that as a result she sustained an injury to her right knee. The Defendant owed the Plaintiff a duty of care at common law and under statute. That this is so is not in dispute, rather the question is whether the Defendant was in breach of those duties. Although it had been pleaded in the Defence it was not suggested to the Plaintiff that the Defendant was unaware of the presence of the loose cabling or that she had not brought the loose cabling to its attention prior to the accident.
14. I find as a fact on the evidence that the presence of the loose cabling under the checkout constituted a hazard to any employee, including the Plaintiff, working at the checkout and that this was a state of affairs the known to the Defendant, accordingly, the Court finds that the Defendant was in breach of s. 8 of the Safety, Health and Welfare at Work Act, 2005 ( the 2005 Act) as well as being in breach of its common law duty of care to the Plaintiff in failing to provide her with a safe place of work and egress from that place.
Contributory negligence.
15. The Plaintiff fairly accepted that she was aware of the loose cabling. That this constituted a hazard which ought to have been apparent to her not only by reason of the fact that it had been raised as an issue in previous safety meetings but also by reason of the occurrence of an accident to a co-employee in similar circumstances in 2010 is self evident. The Defendant pleaded that the Plaintiff was guilty of negligence, including contributory negligence, and was in breach of statutory duty. I have taken the latter to be a plea that the Plaintiff was in breach of her statutory duties as an employee under s. 13 of the 2005 Act although that was not specifically pleaded nor was that plea argued.
16. Particulars of these pleas included an allegation that the Plaintiff failed to look at what she was doing, that her injuries arose by reason of her own inadvertence, that she failed to have regard for her surroundings and that she failed to bring the fact of any loose cabling to the attention of the Defendant; she was otherwise the author of her own misfortune.
17. Having regard to the findings already made I am satisfied that there is no basis to the plea that there had been a failure to bring the loose cabling to the attention of the Defendant; she was aware that that matter had been raised as an issue at safety meetings. Nor could there be any basis to the allegation that the Plaintiff was the author of her own misfortune in circumstances where the hazard, of which it was aware, had been created by the Defendant. Any inadvertence or inattention on her part goes to the plea that she failed to look at what she was doing or failed to have sufficient regard for her surroundings.
18. The question which arises is whether a reasonably careful employee would likely have acted any differently to the Plaintiff, particularly in the circumstances where her attention was focused on assisting a customer and as such was about her employer’s business. On my view of the evidence, and having regard to the knowledge which she undoubtedly possessed concerning the loose cabling, the way and manner in which she got up from the checkout stool and turned to exit the checkout amounted to inadvertence or inattention. That being so, the next question is whether that amounts to contributory negligence on her part.
19. It is clear from authority that findings of carelessness, inattention or inadvertence on the part of an employee can amount to contributory negligence in an action for negligence at common law, however, it has long since been settled that in an action for breach of statutory duty against an employer, the carelessness, inattention or inadvertence of an employee will not amount to contributory negligence where a breach of the statutory duty by the employer is the effective cause of the accident. See Steward v. Killeen Paper Mills Ltd [1959] I.R. 436, Higgins v. South of Ireland Asphalt Co. Ltd [1967] 101 I.L.T.R. 168 and Kennedy v. East Cork Foods Ltd [1973] I.R. 244.
20. This state of affairs must be distinguished from circumstances where the employee engages in a deliberate or conscious act of carelessness in the discharge of work duties; in those circumstances there may properly be a finding of both contributory negligence and breach of statutory duty on the part of the employee. See McSweeney v. McCarthy (Supreme Court, unreported, 28th January, 2000).
Conclusion.
21. There is nothing on my view of the evidence which would warrant a finding by the Court that the Plaintiff consciously or deliberately conducted herself in a way or manner which exposed her to a risk of injury, on the contrary, had the Defendant complied with the provisions of s. 8 of the 2005 Act by taking the remedial measures which were subsequently taken to eliminate the hazard that would most likely have avoided the occurrence of the accident altogether.
22. Having due regard for case authority and having determined that the Defendant was in breach of a causative statutory duty, the Court finds that the inadvertence or inattention of the Plaintiff in the circumstances does not amount to contributory negligence on her part notwithstanding that it may have done so at common law.
23. If it were otherwise, in an action where the proceedings involved a claim brought for common law negligence and for breach of statutory duty where the employer was found to be in breach of causative statutory duty, the doctrine of contributory negligence could be used in defence of that claim to dilute the consequences and frustrate the policy of protection for employees intended by the legislature as found in the 2005 Act and the Regulations made there under; absent a breach of causative statutory duty, different considerations would arise.
Quantum.
24. The nature and extent of the Plaintiff’s injuries and the period of time that she was out of work attributable to the injuries was in issue between the parties. The Plaintiff has been examined and reported upon by a number of treating physicians, including Mr. Joe Sparks, Consultant Orthopaedic Surgeon. On behalf of the Defendant she had been examined by Mr. Fergal McGoldrick, Consultant Orthopaedic and Hand Surgeon. The reports prepared by the medical experts intended to be called by the parties were agreed and admitted into evidence; these have been read and considered by the Court. Given the nature of the issue it is considered appropriate that an analysis of the salient medical evidence contained in the reports be undertaken.
Summary of the salient medical evidence.
25. The Plaintiff’s right knee was subjected to a significant impact as a result of the accident. She did not fall to the ground but the momentum in the fall was taken by her right knee when it struck the edge of the checkout frame. The impact caused soft tissue injuries which were superimposed on a pre-existing but asymptomatic chondromalacia, a condition also present in the uninjured left knee. The injuries gave rise to painful symptoms which deteriorated over a number of days and as a result of which the Plaintiff attended her GP, Dr. McDonnell on 21st May, 2012.
26. Dr. McDonnell has been consulted by the Plaintiff on numerous times in respect of her injuries over the last four years. He prepared a number of medical reports for these proceedings which detail the Plaintiff’s attendances, her complaints, the results of his examinations, his diagnosis and prognosis.
27. At the time of the first medical examination, the Plaintiff’s complaints were of pain in her right knee accompanied by a constant feeling of pins and needles for which she re-attended her GP on 5th June, 2012, at which time she was still significantly symptomatic. In his report of 10th September, 2012, Dr. McDonnell records being advised by the Plaintiff that her work involved sitting at a checkout for 7.5 hours a day, five days a week and that her right knee was particularly painful if sitting with it bent or when she tried to straighten it, there was also an element of locking.
28. Clinical examination disclosed that she had a good range of right knee movement but there was tenderness over the infra patella tendon; she was referred for physiotherapy, prescribed pain killing medication and an anti-inflammatory. The Plaintiff attended and received treatment from Orla Doyle, Physiotherapist and underwent a course of acupuncture.
29. However, her evidence was that this treatment did not help to any material extent and that she continued to have pain in her right knee which she experienced principally on bending, straightening, kneeling, squatting, ascending or descending stairs, and on sitting for long periods. She returned to her GP on 29th June, 2012, with ongoing symptomology; she was referred for an MRI scan of her right knee which was carried out on 16th July, 2012. Due to the persisting sequelae the Plaintiff was also referred to Mr. Sparks.
30. In a report dated 13th September, 2012, Mr. Sparks stated that the MRI scan disclosed a tear in the anterior horn of the lateral meniscus (cartilage) of the right knee. He carried out a physical examination which was reported as being essentially normal; however, he noted pain in the posterior aspect of the knee on full extension. He recorded the complaints made to him. In his opinion the clinical symptoms and examination findings were consistent with a meniscus tear and he advised the Plaintiff to have an arthroscopy which he carried out on 26th April, 2013. The results of the arthroscopy are set out in his medical report of 3rd July, 2013.
31. It is apparent from this report that although the MRI scan had only described the lateral meniscal tearing, at arthroscopy a small amount of partial tearing of the anterior cruciate ligament was also found. Critically and of significance in relation to the issue between the parties, it appears that in September, 2012 Mr. Sparks was not aware of the chondromalacia either clinically or as a result of the MRI scan report.
32. Following the arthroscopy the Plaintiff had further physiotherapy and acupuncture. She did not experience post-operative symptomatic relief; her symptoms worsened and when she was re-examined by Mr. Sparks for the report of 3rd July, 2013, he noted crepitus in both the right and left knees for the first time though he did not comment on the significance of that finding one way or the other. He noted well healed scarring of the right knee consistent with the previous arthroscopy about which the Plaintiff, to her credit, makes little or nothing; nevertheless it is a consequence of the injury.
33. On clinical examination in July, 2013 the Plaintiff complained of marked tenderness around her knee, however, Mr Sparks did not consider her complaints to be commensurate with the objective clinical, radiological and surgical findings; accordingly, he was unable to offer any explanation as to why the Plaintiff continued to have such severe symptoms. On his suggestion she was referred, privately, to Mr. Jackson, Consultant Orthopaedic Surgeon, whom she did not attend for cost reasons, however, she was seen by Dr. Brendan O’Shea, Occupational Health Specialist, in April, 2014 for a vocational medical assessment in relation to her ability to return to work. I pause to observe that the Plaintiff has a high body mass index which pre-disposes her to the development of bilateral chondromalacia.
34. Although no reference was made by Mr. Sparks to clinical signs of that condition in his report of September, 2012, he did note it in his subsequent report of 3rd July, 2013, which is particularly relevant having regard to the prognosis in the report of 13th September, 2012, that the Plaintiff would go on to make a full pain free recovery, a prognosis which appears to have been based on the presumption that there was no other significant pathology within the knee.
35. Notwithstanding that clinical signs of the condition were recorded in the report of July, 2013; Mr. Sparks makes no reference to chondromalacia when giving his opinion and prognosis either in that report or in subsequent reports. The significance of this omission is further highlighted by the opinions of Dr. McDonnell and Mr. Fergal McGoldrick that the chondromalacia patella in the right knee was rendered symptomatic by the accident.
36. Mr. McGoldrick examined the Plaintiff on 3rd October, 2015. He noted a palpable and intermittently audible click of eccentric right patellofemoral tracking with associated apprehension. At consultation the Plaintiff had described pain provoked when in a seated position or after prolonged standing. These complaints are particularly relevant in light of the views expressed in his report of 30th October, 2015, and in a letter of 16th February, 2017, concerning the question of the Plaintiff’s capacity to return to work, namely, that the Plaintiff ought to have been fit to return to work within a matter of weeks following her knee arthroscopy “provided she applied pragmatic avoidance of inappropriate kneeling and squatting.”
37. No mention is made in this letter of the complaint that sitting, particularly for long periods, provoked pain in her knee, a complaint she made specifically to Mr. McGoldrick. He did not doubt the veracity of the Plaintiff. In his report of 30th October, 2015, he stated “Ms. Maloney’s history and clinical findings are consistent and reproducible. She has bilateral genu recurvatum with clear clinical evidence of likely pre-existence bilateral chondromalacia which is partially related to her weight. Super imposed, she sustained likely traumatic right chondromalacia with patellar maltracking when she fell directly on her knee causing patellar surface injury. A patellar fissure may not have been seen at arthroscopy. Her right patella continues to maltrack demonstrated by a palpable and audible intermittent crack/click sensation during flexion and extension.”
38. It is also clear from the report that the lateral meniscal tear and resection were considered by him to be incidental. The significance of this finding is that if that were the only injury then the expectation was that the Plaintiff should have been able to go back to work within a number of weeks after the arthroscopy, however, she related to Mr. Sparks and to Mr. McGoldrick, that the procedure did not provide the expected relief and she continued to be symptomatic.
39. Mr. McGoldrick recommended that the respective MRI images should be reviewed closely to evaluate the articular patella cartilage and that if the MRI interpretation was inclusive then a whole body imaging ought to be considered. He noted that Mr. Sparks’ arthroscopic descriptive findings appeared to contradict the findings of both himself and of Dr. O’Shea who had also expressed the view that the Plaintiff’s history was consistent with examination findings which had demonstrated marked crepitus in the right knee.
40. So far as the future was concerned he thought that the Plaintiff may be left with ongoing pain and might also develop some instability in the right knee joint over time, a development which was more likely given the extent to which he considered her to be overweight.
41. In his report of 30th October, 2015, Mr. McGoldrick offered an explanation as to why the traumatic right chondromalacia was not noted on the 2012 MRI scan, namely, an MRI is not reliable in identifying traumatic transitional chondromalacia because the patellar changes may be subtle which no doubt explains, at least in part, why he suggested that the scans should be closely reviewed to evaluate the articular patella cartilage.
42. When Mr. Sparks re-examined the Plaintiff on 5th November, 2014, in addition to noting crepitus in both knees, he also noted a reproducible click in the right knee on flexion past 100 degrees together with tenderness to minimal palpation along the medial border of the right patella. He did not think this a positive McMurray test although a different conclusion was reached by Dr. Brendan O’Shea in April, 2014.
43. Either way, in November, 2014, Mr. Sparks recommended a further MRI scan which was taken on 9th December, 2014. That scan demonstrated the presence of chondromalacia as well as degenerative changes in the medial tibiofemeral compartment of the right knee. He did not think what he described as a “new clicking sensation” had any obvious cause.
44. Insofar as the degenerative changes in the medial tibial compartment were concerned he considered these to be mild but without attributing any cause. As to that, in a report of 11th January, 2017, Dr. McDonnell expressed the opinion that those changes were unrelated to the accident but related to genu varum (knock knee).
45. Dr. McDonnell’s prognosis for the future was that the Plaintiff would need to maintain the strength and flexibility in her knees with conditioning exercises and may occasionally need to take a non-steroidal anti-inflammatory if the knee is particularly painful. Mr. McGoldrick thought that the Plaintiff’s modest complaints would continue.
46. As long ago as September, 2012 the Plaintiff was examined and reported upon by Mr. J. A. McKeever, Consultant in Emergency Medicine. He, like Mr. Sparks, referred to the MRI scan of 16th July, 2012, as showing a normal knee with the exception of a horizontal tear in the anterior horn of the lateral meniscus which required an arthroscopy. He considered that the risk of the Plaintiff developing osteoarthritis directly as a result of the meniscus tear had slightly increased. So far as Dr. O’Shea was concerned he considered it premature to offer a final prognosis.
The Plaintiff’s evidence.
47. The Plaintiff’s evidence to the Court was consistent with the clinical history recorded by the various physicians who have reported on her. She did not seek in any way to over emphasise or enhance her injuries or the consequences of those for her. Subsequent to the arthroscopy she reattended Orla Doyle, Physiotherapist, and also had further acupuncture. She had received advice on exercises she should undertake and had complied with that advice. Although sitting for long periods of time, bending, squatting, kneeling or using a stairs continued to provoke symptoms of discomfort and pain, the Plaintiff was anxious to get back to work.
48. In January, 2014 she wrote to the Defendant indicating her desire to return to work but requested that she be accommodated in light of her ongoing sequelae. She did not receive a direct reply to the letter but did receive requests to attend meetings every six weeks with a Ms. Scully of the Defendant’s HR department. She was given notice of these meetings by letter. Enquiry was made as to how she was progressing. No offer was made to accommodate her difficulties either in shorter working hours or alternative duties.
49. The Plaintiff had several good reasons to go back to work not the least of which was her family finances. She told Mr. Sparks in November, 2014 that her GP was still certifying her unfit for work; he continued to do so until 15th May, 2015.
50. Apart from the Plaintiff’s own evidence, there was no explanation offered on behalf of the Defendant as to why she could not have been sufficiently accommodated to enable her to return to work from January, 2014. Her duties were altered after her return in 2015 and in this regard Dr. McDonnell noted in his report of 18th February, 2016 that the alteration in duties meant that she was no longer required to sit for long periods.
Decision on return to work.
51. In these proceedings the Plaintiff brings a claim for loss of earnings from the time of the accident until her return to work in May, 2015. That claim is disputed by the Defendant, it being contended that the Plaintiff ought to have been able to return within weeks of the arthroscopy on 26th April, 2013.
52. That the Plaintiff ought to have been able to return to work within a number of weeks or certainly within a number of months after an arthroscopy for a tear of the anterior horn of the lateral meniscus if that was the sole injury is a view shared by the physicians who prepared reports on both sides of the case.
53. The MRI of 16th July, 2012, having been reported to him showing a normal knee otherwise than for the tear of the lateral meniscus, Mr. McKeever expressed the view that the Plaintiff should make a recovery within approximately three to four months after which time he expected her to be in a position to return to her pre-accident lifestyle.
54. In light of subsequent medical developments, MRI scanning and the opinion of Mr. McGoldrick, it is significant, in my judgment, that the MRI scan of 16th July, 2012, was reported to all of the physicians as showing a normal knee other than for the tear of the anterior horn of the lateral meniscus.
55. I infer from the recording of the results of the MRI contained in the medical reports that there was no reference in the report of the scan to a small tear of the anterior cruciate ligament which was found by Mr. Sparks when he carried out the arthroscopy, nor was there a reference to chondromalacia, a condition which was clearly apparent from the report of the MRI scan carried out on 9th December, 2015. No reference was made by Mr. Sparks to any clinical signs of the condition in his report of September, 2012 although it was clearly present and recorded by him in July, 2013.
56. A patellar friction test on the right knee carried out by the GP on 21st January, 2014, was positive. Mr. McGoldrick noted bilateral chondromalacia in February, 2014 which he categorised as grade 3 in the right knee. Dr. O’Shea’s examination disclosed marked crepitus on flexion and extension as well as a positive McMurray test.
57. Mr. McGoldrick appears to have been surprised by Mr. Sparks’ arthroscopic descriptive findings which he considered to be contrary to those both of himself and Dr. O’Shea. On my view of the medical evidence the most likely explanation for this conflict is to be found in the reporting of the first MRI scan. In this regard I accept the view of Mr. McGoldrick that an MRI is not reliable in identifying traumatic transitional chondromalacia where the signs are subtle.
58. Given the absence of clinical signs recorded by any of the physicians before July, 2013 a reasonable explanation for the absence of any reference to the presence of the condition in the first MRI scan report or the recording of clinical signs prior to that time is most likely attributable to the subtlety of the changes but which in fact were present.
59. At the conclusion of the evidence it was accepted by Counsel in the course of discussion with the Court that on all the medical evidence the probability is that the Plaintiff had constitutionally developed asymptomatic bilateral chondromalacia and that the trauma of the accident ultimately caused the condition in the right knee to become symptomatic. Having regard to his own clinical examination and a history given to him by the Plaintiff, Mr. McGoldrick expressed the opinion that it was most likely that the accident had resulted in a traumatic chondromalacia, a view shared by the GP. That condition is quite separate from and not relevant to the tear of the anterior horn of the right lateral meniscus.
60. As has been stated earlier, although he was clearly aware of the circumstances of the accident and the existence of the condition by the time he reported in November, 2014, Mr. Sparks expresses no opinion in relation to causation or effect of the traumatic right chondromalacia on the Plaintiff’s ability to return to work before May, 2015.
61. Mr. McGoldrick, who was aware of the chondromalacia, expressed the opinion in February, 2017 that he would have expected the Plaintiff to be in a position to return to work within a number of weeks of the arthroscopy provided that she avoided inappropriate kneeling or squatting, however, when his first report is read carefully I note that he referred to an arthroscopic patellofemoral chondromalacia debridement. This is an entirely separate procedure to that carried out by Mr. Sparks. To what extent that would impact on the low grade intermittent symptomology which the Plaintiff continues to experience I do not know but on the basis of the evidence before the Court the Plaintiff has never had nor was she recommended to have such a procedure carried out.62. This does not dispose completely of the view expressed in the letter of 16th February, 2017, because that letter refers to the Plaintiff’s knee arthroscopy. Again when that letter is read carefully it will be seen that no reference was made or an opinion given in relation to the Plaintiff’s ability to apply pragmatic avoidance of sitting.
63. In the context of her work duties as they then were and which involved working 7.5 hours a day, five days a week sitting at a checkout and when sitting for long periods was consistently reported by the Plaintiff as something which provoked her knee pain, the omission of any reference to avoiding the action of sitting is clearly a significant omission.
64. The physician, who saw the Plaintiff most regularly, as is apparent from his reports, is her GP. He continued to certify the Plaintiff unfit for work until May, 2015. In addition he consulted with both Dr. O’Shea and Mr. Sparks. Dr. O’Shea was unable to recommend a return to work; he considered it premature to offer a final prognosis pending further orthopaedic review which was subsequently undertaken by Mr. Sparks in November, 2014 following which he referred the Plaintiff for a further MRI scan.
Conclusion.
65. Having due regard to all of the evidence, the Court finds that as a result of the accident the Plaintiff sustained soft tissue injuries to her right knee which were superimposed upon a pre-existing asymptomatic chondromalacia which rendered that condition symptomatic and that the Plaintiff suffered a small tear of the anterior cruciate ligament as well as a tear of the anterior horn of the lateral meniscus in the right knee which were arthroscopically repaired by Mr. Sparks on 26th April, 2013.
66. As already stated I am quite satisfied that the Plaintiff did not make more of her injuries than is warranted by the medical evidence. Quite clearly she would benefit in many respects, including in respect of her knee symptoms, from a reduction in her weight. That said she undertook the rehabilitation measures which were advised, including physiotherapy and acupuncture, in order to assist her recovery from the injuries. She is a long time employee of the Defendant who is well motivated and who attempted to get back to work as soon as she could in January, 2014.
67. I have no doubt that if they were in a position to accommodate her that the Defendants would have done so, however, they weren’t and they didn’t. The fact that the Plaintiff found herself in the position where she was only able to carry out restricted duties over reduced hours was attributable to her injuries and to nothing else. It appears, and I accept her evidence, that she was vocationally reviewed every six weeks by the Defendants HR department; they were at all times fully aware of her condition and her progress until she ultimately returned to work in May, 2015 and this during a time when, no doubt, they were aware of Mr. McGoldrick’s opinion.
68. I accept the medical evidence comprised in the reports of the GP which were admitted in evidence and find, having regard to his knowledge of the Plaintiff as her treating GP and his knowledge of the views of Dr. O’Shea, given in the context of a medical examination to assess the Plaintiff’s vocational capacity to return to work, that he considered it appropriate and continued to certify the Plaintiff unfit for work as a result of her injuries until May, 2015.
69. Accordingly, the Court will allow the Plaintiff’s claim for loss of earnings to that date in the amount agreed between the parties subject to appropriate provision being made in respect of social welfare benefits received by the Plaintiff added to which will be the sum of €2,269 agreed between the parties in respect of non-loss of earnings special damages.
Conclusion in relation to the injuries.
70. In relation to her injuries the worst appears to be over as evidenced by the Plaintiff’s return to work, however, she still experiences some low grade intermittent symptoms which will most probably not recover completely. I accept the prognosis of her GP that she is likely to experience some mild intermittent symptoms, the course of which will very much depend on following the medical advice which he has given to her.
71. Turning to the assessment of general damages, the Court has had regard to the revised Book of Quantum which does not cater specifically for the type of injuries sustained by the Plaintiff; in any event wide ranges are given for moderate to moderately severe injuries. In the particular circumstances of this case I did not find the Book to be of any great assistance. In any event it is necessary to apply the well settled principals of tort law to the assessment of general damages to the findings made and conclusions reached in relation to the injuries.
72. Having done so the Court considers that a fair and reasonable sum to compensate the Plaintiff for pain and suffering to date, a term which includes interference with the ordinary amenities of life, commensurate with the injuries is €35,000 and in respect of the future is € 15,000 making in aggregate the sum of €50,000 to which will the special damages will be added.
73. I will discuss with Counsel the terms of the final order to be made.
73. I will discuss with Counsel the terms of the final order to be made.
Green v Hardiman
[2017] IEHC 17, Cross J
JUDGMENT of Mr. Justice Cross delivered on the 20th day of January, 2017
1. Introduction
1.1 The plaintiff was born on 11th September, 1939, is a married man with four children. He is a retired sales manager with a company called Columbus Dixon and in his earlier life was an active rugby player and then referee and in more recent times before the indexed events was active and enthusiastic gardener and golf player. By the time this matter came to trial, it is true to say that his memory is probably not as good for dates as it would have been and he was not, at all times, a very accurate historian. There is no doubt, however, that he was a honest and truthful witness who though extremely angry at what occurred to him did in no way exaggerate his symptoms or deviate from the truth as he saw it.
2 History
2.1 In the period 2005 to 2007, the plaintiff was treated for elevated PSA levels giving rise to concerns about prostate problems which were out ruled and on 15th November, 2007, after a colonoscopy he was diagnosed with diverticular disease. A follow up CT scan confirmed that the plaintiff had a colovesical fistula which was causing problems with his colon and his bladder and treatment was recommended which entailed a repair by way of laparatomy which was undertaken by Prof. N., a widely respected expert surgeon in the defendant’s hospital at Tallaght on 11th December, 2007.
2.2 During this surgery, an accidental tear was made in the plaintiff’s small bowel.
2.3 Prof. N. subsequently identified this as a serosal tear, i.e. a superficial tear that did not go through the entirety of the bowel. Prof. N. believes that he physically palpated the small bowel and no evidence of escape of any gas or material was apparent and accordingly he concluded that the tear was superficial. Prof. K., the plaintiff’s expert, is of opinion that what occurred in the operation was in fact a full tear of the small bowel which resulted in subsequent escape of matter into the plaintiff’s body. Given the subsequent events and infections I find that the tear was in fact through the entirety of the bowel and not a serosal tear.
2.4 It is not submitted on behalf of the plaintiff that the fact of his tear in any way suggests negligence on the part of the defendant, as there is always a risk of some damage to the small bowel in the procedure because they can be adhesions in the area and tears to the bowel can and do occur without any fault on the part of the surgeon.
2.5 The surgery was performed and what Prof. N. understands to be an insignificant serosal tear was unrepaired and the plaintiff remained in Tallaght Hospital.
2.6 Shortly thereafter, the plaintiff’s bloods indicated a raised white cell and there were elevated CRP figures and by 14th December, the plaintiff’s abdomen became very distended and uncomfortable and the possibility of a leak was raised and on 14th December, a procedure akin to an x-ray of the colon was performed which showed that the colon repair was intact. No scan, however, was undertaken of the plaintiff’s small bowel at that time and accordingly, as far as the defendant was concerned there was no explanation from the plaintiff’s elevated white cell count or elevated CRP. The 14th December was a Friday and over the weekend, the plaintiff does not appear to be examined medically.
2.7 On 17th December, which was a Monday, the plaintiff was referred to a cardiologist as he was developing hypertension and his white cell count had risen and his CRP was continuing to be significantly elevated.
2.8 Eventually on 19th December, a second operation was performed by way of laparotomy with a significant incisional entry through the abdomen and a loop ileostomy was carried out providing a stoma through the abdomen whereby his bowel discharged through the stoma inserted into his abdomen onto which a bag was fitted.
2.9 The plaintiff’s recollection was that he was advised by medical personnel that the second operation was required because, as he understood it, a suture of the bowel had come away and there was leakage.
2.10 After the procedure on 19th December, the plaintiff was admitted to the Intensive Care Unit for it seems 48 hours and at that stage he was critically ill and he was retained in the hospital until 28th December when he was discharged.
2.11 At home, his condition deteriorated and on 25th January, 2008, he was admitted to South Tipperary Hospital in Clonmel near where he lives and transferred to the defendant’s hospital in Tallaght on 6th February and at this stage, the loop ileostomy was closed and the bag was removed and the plaintiff recuperated in Tallaght until 13th February when he was discharged.
2.12 On 27th March, 2008, the plaintiff was seen for follow up review by Prof. N. and at this stage, he was developing a ventral hernia and Prof. N. indicated to the plaintiff that this could be treated in approximately six months afterwards when he had got better.
2.13 The plaintiff is very angry that despite this arrangement, no further follow up was put in place by the defendants. It seems there was some mix up between the appointments desk and the plaintiff in that no follow up appointment was given.
2.14 This was the last involvement of Prof. N. and was on 27th March, 2008.
2.15 The plaintiff’s hernia developed and he was concerned about it, it was causing him difficulty in terms of movement and discomfort.
2.16 In particular the hernia affected his activities in gardening and playing golf which he was unable to continue to any real extent.
2.17 It should be stated that as a young man in his early 20s, the plaintiff developed an inguinal hernia which was treated by operation and a small scar in the pubic area resulted. This is not related to his present hernia. I have viewed his hernia and it bulges and stretches from the top of his stomach down towards his pubic area.
2.18 The hernia is reasonable faithfully represented in the photographs that were submitted though it is agreed that this has grown somewhat since then. It should be said that on his admission to the defendant’s hospital initially, the plaintiff did have a small hernia above his umbilicus but it is not disputed in this case that the hernia which now presents itself was as a matter of probability caused by the wound infections from his leaking bowel and the procedures of the second operation.
2.19 In any event, the plaintiff who appears by this stage to have lost confidence in the defendant’s hospital and also preferred local treatment was referred by his GP to Mr. M., Consultant in Tipperary Hospital who, in essence, advised against any further surgery for a number of reasons, to the effect, that the hernia would be difficult to repair and would involve the insertion of a mesh and the risk of further infection. The plaintiff accordingly did nothing about the problem and hoped that his condition would improve.
2.20 Mr. M. reported to the plaintiff’s G.P. by letter dated the 14th January 2009 stating, inter alia:-
“As you know he has divarication of rectus abdominis muscle on his abdominal wall given the impression of a long standing midline hernia. This is a very common condition but does not particularly improve from surgery because of the geometric outline of where the rectus muscles now lie. Essentially they pull away from the midline and resuturing them back in really only facilitates a tear of these muscles and they get an even greater type herniation.
Mr. Green’s situation is compounded in that he has also actually developed a small incisional hernia component in the central part of his abdominal wall just below the umbilical area in keeping with a true incisional hernia at the site. However this would account for no more than 10% of the incisional herniation component …
I have outlined to him that this is biomechemical problem rather than of an incisional hernia nature and that while his recent abdominal surgery was somewhat contributory to some of the protrusion of the abdominal wall, the main protruding component is due to divarication.
I have outlined to them both that any surgical repair at first does not guarantee success and in general surgeons try to opt away from repairing divarication if at all possible, the reasons for this that the results are rather poor from a functional and cosmetic point of view. I have outlined to him that he would need large prosthetic mesh implanted onto his abdominal wall and there is no guarantee of success in this. I have also pointed out that he has already had an infection of his abdominal wall and implanting a prosthetic mesh runs risk of activating further infection developing a fasciitis which can result from dormant infection is his abdominal wall …”
It should be pointed out that notwithstanding the views of Mr. M. in January 2009, the uncontested evidence in this case, which I accept, as to the causes and consequences of the plaintiff’s hernia was that as given by the plaintiff’s expert, Prof. K.
2.21 As stated above, however, the hernia disimproved through 2009 and into 2010, and in January 2011, having heard an advertisement on the radio for his present firm of solicitors, he attended therein to ascertain whether the treatment he was given was correct or otherwise.
2.22 The plaintiff’s records in the file were requested from the defendant which arrived at their solicitors and the file was then sent to the plaintiff’s expert, Prof. K. whose report arrived in May 2012.
2.23 It should be stated that the concern of the plaintiff and his solicitor at that stage, focused on the belief that the hernia developed as a result of a possibly negligently caused leak in his small bowel and not for the reasons as subsequently identified by Prof. K.
2.24 Prof. K’s report which arrived in May 2012, was sent to the plaintiff who got emotional when he started to read it and did not and has not read it in full concluded that the defendants were in breach of duty in:-
(a) Failing to test the apparent serosal tear in the small bowel so as to show what on the balance of probability was the case that this was not a serosal tear but a full tear which caused leakage of matter and infection to the plaintiff.
In particular, under this heading, Prof. K. stated that the small bowel ought to have been delivered so that it could be palpated by hand so that gas could be squeezed through the injured segment and that then it would have been anticipated that there was a full thickness injury which required a full thickness repair which could and should have been carried out on 11th December, either by laparoscopy or by access through the already created midline laparotomy wound which would have minimised the risk of any hernia. Further, as there would not have been any time for any significant infection to have developed the prospect of a hernia would have been considerably reduced.
(b) In failing to investigate the elevated CRP which are associated with infection on 14th December, 2007, when studies show that the original colon was sound, a CT scan or similar ought to have been carried out on 14th or 15th to determine the source of the contamination especially given the fact that there had been a recognised injury to the small bowel.
(c) Which follows from (b) above, a failure to operate on 15th December at the latest and if the CT scan and other investigations had taken place on 14th that an operation could have taken place at the latest on 15th which caused a further four to five days delay increased the level of infection increased the prospect of a large scar and increased the likelihood of the hernia which developed taking place.
2.25 The pleadings were then commenced by personal injury summons dated 7th August, 2012.
2.26 A full defence was filed by the defendants on 18th November, 2014, putting virtually all matters in issue and in particular pleading the statute of limitations.
2.27 A reply to the defence was delivered on 17th May, 2006, submitting that the provision of the Statute of Limitations (Amendment) Act 1991, applied and also pleading that the defendant is estopped from relying upon the statute of limitations by their conduct. The latter plea has been withdrawn subsequently.
3 Consequences
3.1 The plaintiff alleges that as a result of the defendant’s negligence, first of all the plaintiff required a second operation on 19th December, 2007, which was a repair of the full thickness defect in the small intestine and the insertion of a stoma on the right side of his abdomen and an ileostomy bag being fitted. He was critically ill at that stage and required two to three days in intensive care. He also had a prolonged stay in hospital as a result of what occurred in the wound infection.
3.2 When the plaintiff returned home, his wounds were treated for some three weeks by a district nurse and his dressings changed. He had while at home at the beginning of 2008, a significant excessive discharge from the stoma into his bag which led him to loose a considerable amount of weight. He was described as anorexic and dehydrated and was then admitted to South Tipperary Hospital on 25th January, 2008, and transferred to Tallaght where he had a third operation and the bag was removed. He is left with the pronounced abdominal hernia which though Prof. K. would be more optimistic as to its chance of success than Mr. M., Prof. K. does not suggest that the plaintiff is unreasonable in his decision that he will not have further treatment.
3.3 Whereas the defendants did not call their expert, Prof. H., his reports were submitted by agreement and Prof. H. stated:-
“Following his two operations with peritonitis at the second operation, it is not surprising that there was a significant surgical site infection post operatively as described by the plaintiff.
It is my opinion that as a result of this infection, the two surgical procedures within the abdominal cavity that the plaintiff was at high risk of developing an incisional hernia (in the region of 10 – 20%).”
3.4 I accept the evidence of Prof. K. that had the tear been discovered at the time of the first operation on 11th that no further scar would have occurred. Had the problem of the tear been discovered on 14th, it is likely that a laparoscopy repair would have been carried out resulting in no extra scar and further had the infection not been allowed to continue up to 19th with a continuous escape of material from the small intestine, the likelihood is that no significant herniation would have occurred. In the event of a laparoscopy, there would have been no need for the stoma and the bag that had to be inserted after the laparotomy on 19th. Indeed, I note that a laparoscopy repair was considered on 19th but would have been more likely to have been carried out on 14th/15th and accordingly, the plaintiff’s present condition is, as a matter of probability, as a result of the indexed events.
3.5 The plaintiff was left from 11th to 19th with infected matter leaking from his small bowel which caused infection as was demonstrated by raised temperature and other signs which were recorded. When the plaintiff was operated for the second time on 19th, the infection caused the herniation on the site of the incision.
3.6 Given Prof. H’s report, there is no dispute in the expert evidence as to Prof. K’s conclusion which, of course, differs from Prof. N’s view that the small intestine was not damaged in the initial operation and that no significant infection was evidenced from the charts and also differs from the diagnosis of Dr. M. in 2009. Dr. M., of course, was not in a position to know of the eight days of leakage as concluded by Prof. K.
4 Negligence and Breach of Duty
(A) The failure to discover the fact of the full tear by physical palpitation
4.1 Prof. K. originally believed that the defendants were negligent in their failure to carry out a palpitation of the small intestine and that such a palpitation would, in all likelihood, would have discovered the fact that a full tear had occurred.
4.2 Whereas Prof. N. does not accept that a full tear was made on 11th, he has no real explanation for the full tear that was ultimately discovered and for the infection that was caused. This infection commenced almost immediately after the initial operation and I believe and accept that a full tear of the small intestine occurred during the operation on 11th.
4.3 Prof. N., however, states that he always teaches his pupils and as a matter of practice that he would have examined small intestine physically and palpated it as Prof. K. suggested he should.
4.4 While, of course, Prof. N. does not have any actual memory of the particular operation so far back, he believes that physical palpitation was his universal practice and his belief that he actually physically palpated the small intestine on this occasion is strengthened by the fact that the hospital notes indicate that there was no request for the instruments that would have been necessary to examine the small intestine without palpitation. I accept that Prof. N. did, indeed, palpate the small intestine at the time of the operation.
4.5 Unfortunately, this tactile palpitation by Prof. N. did not reveal, as was the fact, that there was a full tear at the time.
4.6 Prof. K. was firstly of the view that a tactile palpitation did not occur because it is not recorded in the notes but I accept the evidence of Prof. N. that the palpitation did take place.
4.7 Prof. K. believes that had such a palpitation been properly carried out, the fact of the full tear would have been ascertained.
4.8 The issue before me on this first allegation of negligence by Prof. K. is whether the failure to detect the fact of a full tear (which I have found to exist) by his palpitation (which I accept he performed) was negligence and breach of duty on the part of Prof. N.
4.9 I do not believe that the state of the evidence is such that I can comfortably conclude that defendants were negligent in terms of Dunne v. National Maternity Hospital in the failure of Prof. N. to detect the fact of the full tear by his palpitation.
4.10 In answer to one of my questions to the effect that if a palpitation test were done and a full tear was missed, whether it was something that Prof. K. could understand, he replied “yes these things happen”. Accordingly, I believe that the plaintiff has not established, on the balance of probabilities negligence in relation to the first ground complained of by Prof. K.
(B&C) The failure to study by CT scan or otherwise the small bowel on 14th and to operate on 14th/15th
4.11 Prof. N. in his evidence defended his practice and in particular denied there was any real evidence of infection by 14th and felt that he was reassured there was no tear at the site of the original operation by his study on 14th and that it was only later that the plaintiff’s symptoms developed more significantly. I do not accept that evidence. I accept the evidence of Prof. K. that as of 14th, there was sufficient and significant evidence of infection in the plaintiff’s signs of raised temperature, raised CPR and raised white cell count, and that when it was discovered that there was no tear at the site of the original operation, the small bowel ought to have been examined by CT scan or similar to establish the next most likely source of infection.
4.12 Prof. N. is, as accepted by Prof. K., an eminent expert surgeon but he was giving evidence not as an expert but as a lay witness, in essence, defending what he had done.
4.13 It is significant that while the defendant’s expert did not give evidence, his report as submitted agreed that the failure to provide a CT scan on 14th cannot be defended. This was also the testimony of the only expert who gave evidence, Prof. K. and I accept his evidence and I accept accordingly that the defendants were negligent in their failure on 14th to carry out a CT scan or other imaging of the plaintiff’s small bowel given the level of infection and I conclude as a matter of probability that had they done so, they would have discovered the leak and they would have performed an operation on 14th or 15th to deal with the growing infection. It follows that their failure to do so on 14th or 15th is also negligent and accordingly, I accept the uncontested evidence that the defendants were negligent.
4.14 The consequences of that negligence have been referred to above.
5 The Statute of Limitations
5.1 The defendant relies on the provisions of the Statute of Limitations, as amended. It is, of course, incumbent upon the defendant to establish this defence. Under the provisions of s. 7 of the Civil Liability and Courts Act 2004, the relevant period is two years from the date of commencement. Clearly, the proceedings which were commenced by personal injury summons of 7th August, 2012, in respect of the indexed errors in December 2007, are well in excess of that two year period.
5.2 The plaintiff in response pleads the provisions of s. 2 of the Statute of Limitations (Amendment) Act 1991, which insofar as they are relevant provides:-
“(1) For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person’s date of knowledge… are references to the date on which he first had knowledge of the following facts:
(a) that the person alleged to have been injured had been injured,
(b) that the injury in question was significant,
(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty…
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant….”
Once it has been confirmed that the three year limitation period has elapsed, the onus is upon the plaintiff to establish that the provisions of s. 2(1) of the 1991 Act are applicable.
5.3 The interpretation of the similar though not identical English Statute of Limitations was analysed in the English Court of Appeal in the case of Spargo v. North Essex Health Authority [1977] 8 Med L.R. 125, by Brooke L.J. and he referred to a number of English authorities from which he drew the following principles:-
“(1) The knowledge required to satisfy s. 14(1)(b) is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable;
(2) ‘Attributable’ in this context means ‘capable of being attributed to’, in the sense of being a real possibility;
(3) A plaintiff has the requisite knowledge when she knows enough to make it reasonable for her to begin to investigate whether or not she has a case against the defendant. Another way of putting this is to say that she will have such knowledge if she so firmly believes that her condition is capable of being attributed to an act or omission which she can identify (in broad terms) that she goes to a solicitor to seek advice about making a claim for compensation;
(4) On the other hand she will not have the requisite knowledge if she thinks she knows the acts or omissions she should investigate but in fact is barking up the wrong tree: or if her knowledge of what the defendant did or did not do is so vague or general that she cannot fairly be expected to know what she should investigate; or if her state of mind is such that she thinks her condition is capable of being attributed to the act or omission alleged to constitute negligence, but she is not sure about this, and would need to check with an expert before she could be properly said to know that it was.”
5.4 The Spargo judgment has been cited with approval in various Irish decisions, and in particular by Geoghegan J. in Gough v. Neary [2003] 3 IR 92, though as Geoghegan J. stated the summary of the case law by Brooke L.J. was helpful, the application for the four principles is by no means easy “certainly there is no merit in my view in casting them as stone…”.
5.5 In Gough v. Neary, it was held by Geoghegan J. for the majority of the Supreme Court, that in order for the statute to run, a plaintiff must know enough facts such that he would capable of, at least, upon further elaboration establishing a cause of action even if the plaintiff had no idea that those facts of which he or she did have knowledge did, in fact, constitute a cause of action, as that particular knowledge is irrelevant under the Act.
5.6 In Halford v. Brookes [1991] 1 W.L.R. 428 at p. 433, Donaldson M.R. stated:-
“The word (knowledge) has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction’. It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice, and collecting evidence’. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”
5.7 Dunne J. in Naessens v. Jermyn [2010] IEHC 102, having established that the plaintiff suffered a significant injury in her operation in February 2002, which was more invasive than would have been necessary had the operation been carried out earlier held that the question to be considered was when the plaintiff had sufficient knowledge of the facts that the injury was attributable in whole or in part to the acts or part of the Acts or omissions alleged to constitute negligence and quoted a section from Healy Medical Malpractice Law:-
“… It is therefore more usually the case that before the plaintiff begets a reasonable suspicion as to a right of action against the defendant, he must first have formed a reasonable suspicion, or been advised accordingly, that his present physical condition potentially constitutes a compensable injury or that the treatment he received was neither therapeutic nor carefully preformed. …”
5.8 Dunne J. went on to state:-
“I accept that s. 2(1)(c) of the Act does not require a triggering event to start the statute running. What is clear from the case law is that the statute begins to run when a plaintiff has knowledge of attribution i.e. that the injury was caused by the act or omission involved and knowledge that there was a connection between the injury and the matters alleged to have caused the injury as described in the case of Fortune v. McLoughlin by McCracken J. …In other words, the plaintiff has to be able to make that connection.”
5.9 In my decision in Farrell v. Ryan [2015] IEHC 275, I decided that it was only at the stage when the plaintiff had obtained hospital notes that could have been said to have the knowledge “to justify embarking on the preliminary to issue a writ” and suggested that up to that time, her position was similar to the plaintiff in subpara. (4) of the judgment of Spargo i.e.:-
“She may have thought that she knew the acts or omissions that she should investigate but it was quite possible that she was barking up the wrong tree. She may have been aware by that stage, in 2010, that the procedure carried on her was indeed a symphysiotomy but she was not armed with any information that could have justified her issuing proceedings against the defendants or going to a solicitor to instruct that solicitor to issue proceedings, until the furnishing of the records…”
5.10 However, Peart J. in the judgment of the Court of Appeal in the Farrell case dealing with the issue of Statute of Limitation, held that my reasoning was incorrect and he analysed whether the information which the appellant had by February 2010, when she heard a report of a television programme and which made her want to obtain her medical reports from the hospital was sufficient to “mark the point at which the statute started to run” (as per McGuinness J. in Cunningham v. Neary) or whether that point was not reached until she actually received the medical reports in August 2011, and Peart J. concluded:-
“It is incorrect as a general proposition that a plaintiff may wait until she receives her medical records before time starts to run against her under the statute. That would give a plaintiff control over when time starts to run, as it would be dependent on how long the plaintiff chooses to wait before seeking her records. If a plaintiff has had an operation or some procedure carried out, and thereafter has suffered adverse sequelae in the nature of a personal injury reasonably attributable to what was done, she does not need to wait for her hospital records or other records to arrive before she can be taken to know that she has a cause of action….
In my view the trial judge was incorrect to conclude that she needed to know more than [having heard a report of a television programme in February 2010] that before time started to run under the statute, and in particular that she needed her medical records before she could be said to have enough knowledge to justify the commencement of proceedings. In my view that was the wrong test. She did not need to know at that point that she had a good case. It was sufficient if she had enough knowledge to connect her injuries to the procedure which she knew had been carried out on her in 1963, and as she admitted herself in her evidence, she knew on 10th February, 2010, that the symphysiotomy she underwent was unnecessary. I believe that the evidence is clear that she had that knowledge as of 18th February, 2010. Medical records would no doubt elaborate upon the knowledge that she had, but were not a prerequisite to time commencing to run.”
5.11 In Fortune (a person of unsound mind not so found) v. McLoughlin [2004] I.R. 526, McCracken J. for the majority of the Supreme Court analysed, as Dunne J. did in Naessens, the importance of the word “attributable” as contained in s. 2(1) of the 1991 Act and he held that the word was not satisfied by the plaintiff’s knowledge of the factual situation. The knowledge must be one of attribution that there was connection between the injury and the matters alleged to have caused the injury at p. 534:-
“I cannot accept the defendant’s contention that the word ‘attributable’ in s. 2(1)(c) of the Act of 1991 is satisfied by the plaintiff’s knowledge of the factual situation. The knowledge referred to in that subparagraph is knowledge of attribution, in other words knowledge that there was a connection between the injury and the matters now alleged to have caused the injury. This is a connection which the plaintiff did not make in this case. If a plaintiff is to have knowledge within the meaning of s. 2(1)(c) of the Act of 1991, she must have knowledge at least of a connection between the injury and the matters now complained of to put her on some inquiry as to whether the injury had been caused by the matters complained of. At what stage she is put on inquiry must be a matter to be determined in each case, but in the present case the plaintiff quite clearly did not make the connection at all, as even when she was alerted to the fact that there might have been negligence, her reaction was to attribute her injuries to the actions of the National Maternity Hospital rather than of the defendant. It should be emphasised that the plaintiff’s knowledge of these matters is largely a question of fact. The trial judge in this case heard and placed reliance on, not only the expert evidence, but also the evidence of the plaintiff herself….”
5.12 In this case, the plaintiff knew reasonably shortly after the indexed procedure that he had developed a hernia. The plaintiff was advised by Prof. N. that this could be treated some six months later. The plaintiff was angry that due to some mix up, no follow up appointment with Prof. N. was given to him and he went to a consultant in Tipperary Hospital, Mr. M., who, in the absence of knowledge of the eight days of infection, attributed the cause of the hernia to a combination of a pre-existing hernia and a small contribution by the operational incision and advised against further surgery. The plaintiff hoped the condition would improve. The condition did not improve and in January 2011, having heard an advertisement for his present solicitor on the radio, he sought advice. His solicitor promptly sought the medical records and engaged Prof. K., who reported in May 2012.
5.13 In other words, I accept that the plaintiff was aware that he had suffered an injury in the procedure. He went to Mr. M. in January 2009, and Mr. M. not alone advised essentially against any operation to “cure” the hernia but also his view as to the cause of the hernia was in the main longstanding and only related to the indexed procedure to a small degree such as, I believe, any operation might produce.
5.14 Mr. Foley, of counsel, on behalf of the defendant in his forceful submission urges that following the decision in the Court of Appeal in Ryan that it is not necessary that the plaintiff should be in a possession of the medical reports or records, and that as is clearly stated in the statute, knowledge that the particular acts did or did not constitute negligence is irrelevant.
5.15 Counsel on behalf of the defendants referring to the authorities cited above, said that the plaintiff was or ought to have been aware from an early stage that something serious had occurred and as suggested by Dunne J. in Naessens v. Jermyn, that he had sufficient knowledge to justify embarking on the preliminaries to the issue of a writ. Further, before 7th August, 2010 (two years prior to the issuing of proceedings), the plaintiff was aware that he had a hernia. He knew that he had suffered a perforation of his small bowel and that the pathway of care that was intended or expected on his admission in December 2007, had “gone drastically away from expectation”. It is further submitted, that as is clear from the plaintiff’s particulars that after seeing Mr. M. in January 2009, the plaintiff specifically accepted that he doubted that the outcome of this operation was acceptable. The hernia was causing him a great deal of discomfort and difficulty and he was unable to pursue his activities of gardening and the like. Counsel specifically referred me to the matters pleaded in the plaintiff’s replies to particulars as to his concerns about the quality of his care arose when his “hernia became difficult”.
5.16 Counsel on behalf of the plaintiff submits that the case, as pleaded against the defendant is on the three grounds I have referred to at para. 2.23 above. When the plaintiff went to his solicitor, he had a general concern about the quality of his care but that concern is not sufficient for the date of knowledge to be attributable to the actions or omissions which are alleged to constitute the negligence, as is required by the 1991 Act. The plaintiff’s concern at that stage was that his hernia had been caused by Prof. N. in the second operation and that the defendants had not, in effect, cured him.
5.17 In this belief, it was submitted that, the plaintiff and his solicitors at the time were, in effect, “barking up the wrong tree” as per para. 4 of the principles in Spargo (above). It was only when Prof. K. reported, having examined the plaintiff’s notes that the allegations of negligence made against the defendant could be formulated. Had the plaintiff taken the preliminary steps to issue a writ prior to receiving Prof. K’s report then he would have embarked upon a cause of action which would not have succeeded.
6 Determination on Issue of the Statute of Limitations
6.1 The interpretation of s. 2 of the 1991 Act ought to be simple but is extremely difficult in practice. Every case will turn on its own facts and the principles of the authorities offer guidance to the decision maker but probably no more. The starting point must be the Act itself and for the purposes of this case, the relevant subsection is s. 2(1)(c):-
“that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty.”
6.2 I accept that the word “attributable” cannot be airbrushed out of the equation and is central to my conclusion. The plaintiff was before August 2010, upset about his treatment and the result thereof. His first port of call was the referral to the gastrointestinal surgeon in South Tipperary General Hospital, Mr. M., who, as we have seen, not alone advised him as to the difficulties of further surgery but his report is not supportive of any action claiming significant personal injuries as a result of the indexed procedure. Mr. M. was presumably advised of the two operations but would not have had the notes or information that there had been some eight days of infection from the small bowel prior to the second procedure and could not conclude that the hernia was as a result of this infection.
6.3 In Farrell v. Ryan, Peart J. held that “it is incorrect as a general proposition that a plaintiff may wait until she receives her medical records before time starts to run against her…”. In the Farrell case, Peart J. indicated that the plaintiff, after hearing about a television programme on symphysiotomies in February 2010, was aware that she underwent what she believed to be an unnecessary symphysiotomy. In the Farrell v. Ryan case, that knowledge was sufficient to allow the statute to commence to run against the plaintiff.
6.4 The fact that as a general proposition, a plaintiff cannot insist that the Statute does not run until he or she obtains medical records does not, of course, mean that Medical Record may, in some cases, be essential for knowledge and attribution under the Statute.
6.5 In Fortune v. McLoughlin, McCracken J. stated:-
“However, the question is not whether the plaintiff knew the physical facts of her injuries, but whether she knew that the injury was attributable in whole or in part to the act or omission which is alleged to constitute the negligence, which basically was the failure of the defendant to monitor her properly during the latter part of her pregnancy. The trial judge held that the plaintiff herself did not make the connection between her injuries and the actions or omissions of the defendant. It is quite clear from the evidence that the proceedings were ultimately issued as a result of advice from a general practitioner in September, 1999 and even at that stage, she believed that any relevant blame would lie on the National Maternity Hospital. At this stage she sought advice from her solicitor who obtained her medical records from the hospital. It was only when the relevant records were obtained and advice was received by her from an independent medical expert based on those records that the facts now relied upon by the plaintiff in relation to her treatment by the defendant came to light.”
6.6 I find that it was only when the plaintiff, in this case, received the medical records that the basis of the case and the attribution of the plaintiff’s injuries to the failures on 14th and 15th could be known. The plaintiff’s general suspicions as to having suffered an injury and that that injury was caused by some actions of the defendant were, as it transpired ill founded.
6.7 The plaintiff has, subject to the Statute, established liability on the failure of the defendants to examine the plaintiff’s small bowel by way of a CT scan or similar on 14th and their failure to operate on 14th or 15th.
6.8 Prof. K. has given evidence which I have accepted that as a consequence of these matters, the plaintiff’s injuries have occurred.
6.9 The plaintiff’s initial concerns as to any faults whatsoever on the part of the defendants for any significant injury must have been assuaged by Mr. M’s report in 2009. Prof. N. still does not accept that in the first operation he entirely ruptured the small bowel or that there was any significant evidence of infection by 14th. Prof. K. on examination of the notes concluded that the hernia was caused by the initial undetected and untreated rupture which caused leakage and infection and which resulted in the hernia after the substantial incision which was required by the second operation on 19th.
6.10 The plaintiff in this case is in a significantly different position than the plaintiff in Farrell v. Ryan, in that Mrs. Farrell was aware from the reports of a television programme that she had suffered an injury caused by what she believed to be an unnecessary symphysiotomy. The plaintiff in this case was not and could not have been aware that he has suffered an injury due to the failure of the defendant to examine by way of CT scan or similar his small intestine on 14th and to operate on 14th or 15th. This knowledge and this attribution could only and did only arise on the receipt of the report of Prof. K. or, arguably, when the plaintiff received the hospital records. Either date, of course, is within the statute.
6.11 The requirement for the records in this case prior to the requisite knowledge and attribution is not because of any nuance in particulars of negligence or because of any minor refinements in the case, the records were required in order to attribute the injuries of the plaintiff to the failure of the defendants to investigate on 14th and to operate on 14th or 15th. Dr. M. did not have the records and did not attribute the hernia to these facts.
6.12 To conclude otherwise would, in my view, be to ignore the fourth paragraph of the judgment of Spargo (“barking up the wrong tree”) and to ignore the decision of Dunne J. in Naessens, it would be to ignore the decision of McCracken J. in Fortune v. McLoughlin and would be to specifically ignore the provisions of s. 2(1)(c) of the Statute of Limitations (Amendment) Act 1991.
6.13 I find accordingly that the plaintiff’s action against the defendant is not barred by virtue of the Statute of Limitations.
7 Damages
7.1 The special damages in this case have been agreed in the sum of €1,403.
7.2 The general damages in this case consist of the plaintiff’s hernia which I have viewed. This is the major heading of damages of the plaintiff together with its consequences. In addition, the plaintiff complains of the effects of the untreated infection between 14th and 19th and the necessity for a second substantial operation on 19th which may not have been required had prompt intervention occurred. In addition, the second operation on 19th resulted in a stoma and bag being supplied. This was naturally distressing for the plaintiff and the bag required a third operation in order for it to be removed. Had a laparoscopy been performed on 14th/15th, there would as a matter of probability not have been a requirement for the stoma or the bag. Clearly, the latter matters are of significantly less importance than the fact of the hernia itself which is, by far, the main aspect of the plaintiff’s damages.
7.3 As the Court of Appeal has held in a number of cases, proceedings involving small injuries should result in low damages, moderate injuries in moderate damages and serious injuries result in serious damages.
7.4 Damages of scarring are not covered by the PIAB Book of Quantum and given the nature of the scaring, the age of the plaintiff and the resulting effects of the hernia, I would assess the plaintiff’s damages as being a significant and higher than moderate but not, of course, in any way catastrophic.
7.5 Being fair to both the plaintiff and the defendant, as I am obliged to be I assess the general damages as follows:-
General damages for pain and suffering to date €60,000
General damages for pain and suffering to the future €35,000
The total of general and special damages is €96,403 which I believe to be fair and reasonable in all the circumstances.
Dylan v Stagg
[2017] IEHC 21
JUDGMENT of Mr. Justice Barr delivered on the 19th day of January, 2017
Introduction
1. The plaintiff in this action met with his accident while playing a game of five-a-side soccer on an astroturf pitch at Longwood G.A.A. Club, near Longwood, Co. Meath. Towards the end of the game, the plaintiff took a shot at goal but the ball missed the goal and ricocheted off a player and became lodged between the top of the surrounding fence and the ball stop netting which was above the fencing. The ball stop netting had become slack, thereby causing the ball to become lodged between the top of the fencing and the ball stop netting itself.
2. With the assistance of two friends, the plaintiff was lifted up the front of the fencing and was able to dislodge the ball. However, while descending, a ring on the middle finger of his right hand became caught in part of the fencing, which was projecting above the top of the fencing itself in a vertical direction, causing the plaintiff to suffer a severe degloving injury to the middle finger on his right hand. The finger was amputated at the level of the proximal interphalangeal joint.
3. As a result of the accident, the plaintiff’s middle finger on his right hand has been almost completely amputated. He has been left with a permanent injury in this regard. He has lost 80% of the function in the finger and an overall loss of function of 16% in his right dominant hand. In addition, the plaintiff has suffered significant psychiatric sequele as a result of the injury sustained in the accident.
4. A full defence has been filed on behalf of the defendant, which includes a plea of contributory negligence, in particular, that the plaintiff failed to heed warning notices, which had been affixed to the fencing surrounding the pitch, that prohibited players wearing rings or jewellery while playing football on the astroturf pitch.
The Liability Issue
5. The only oral evidence presented to the court on the issue of liability, was that of the plaintiff. He stated that he had played football at the locus for a number of years prior to the accident. He played five-a-side soccer with his friends every Thursday evening. Each of the players would contribute €5.00 to one of the group, who would pay the G.A.A. club for the use of the pitch for one hour.
6. The plaintiff stated that on the night in question, when he had taken the shot at goal, the ball became lodged in the ball stop netting which was above the steel fencing and which had become somewhat slack. This meant that, on striking the ball stop netting, the ball did not bounce back on to the pitch, but instead became trapped between the netting itself and the top of the surrounding fence.
7. The plaintiff stated that in order to retrieve the ball, one of the other players cupped his hands together, so as to enable the plaintiff to put his foot into the cupped hands and was thereby whooshed up the face of the fencing. He then stretched upward with his right hand to release the ball. Unfortunately, while descending, the ring on his right middle finger became caught in the vertical steel bars which formed part of the fencing and which projected upwards from the top of the fencing itself. The weight of the plaintiff’s body descending towards the ground caused the amputation of the finger.
8. The plaintiff stated that the locus of the accident was straight across from the entry gate to the astroturf pitch as shown in Photograph No. 2 in Mr. O’Keeffe’s booklet of photographs. This was shown in further detail in Photograph No. 6, with the locus being just in front and to the right of the floodlight standard as shown in the centre of the photograph. The locus was shown in closer detail in photographs No. 7 and 8. The vertical steel bars which were projecting from the top of the fencing were shown in photographs No. 9 and 10.
9. It was put to the plaintiff in cross-examination that there were notices at either side of the entry gate to the pitch which stated inter alia:
“Users are advised that NO JEWELLERY OR RINGS should be worn while participating in activities at the facility.”
The plaintiff stated that there were no such notices in situ at the time of his accident.
10. By agreement of the parties, the engineers’ reports, which had been furnished on behalf of the plaintiff and the defendant, were handed into court. The plaintiff’s report was from Tony O’Keeffe & Partners, Consultant Engineers. In that report Mr. O’Keeffe stated that his office had investigated over a dozen identical accidents on astroturf pitches around the country. He was of the opinion that the accident was completely foreseeable and there were a number of measures which could have been taken to prevent it which included the following: cut off the 25mm protrusions which served no function whatever at the top of the fence panels, alternatively cover the protrusions with a half pipe tied to top of the panel with cable ties, or provide a fence panel which did not contain these protrusions. The engineer noted that there were such panels available and gave as an example, panels which were marketed as “Heras Support Fencing”. Finally, the engineer recommended that, in conjunction with one of the above measures, the netting should be pulled taut and it should be lapped over the inside of the fence panel and it should be tied securely to the fence panel at closely spaced intervals in the manner which had been done subsequent to the accident, but prior to the time of the engineers inspection.
11. In the conclusion section of his report, Mr. O’Keeffe stated that given the large number of identical accidents which his office had investigated over the years, it could not be suggested that the accident was not foreseeable. The common factor in all of these accidents was a row of exposed wire protrusions at the top of the fence, combined with slackness in the netting above the fence. This caused the ball to become lodged in the interface between the netting and the fence, whereby the slack net effectively forms a shelf which traps the ball behind the top of the fence. He was of the opinion that the defendant could have taken the relatively simple measures as outlined in his report in order to prevent this type of accident.
12. In relation to the notices which appeared on either side of the entrance gate to the astroturf pitch, the engineer noted that the plaintiff denied that such notices were in place at the time of his accident. The engineer was able to state that the notices appeared to have a fairly fresh or new appearance. They did not show any sign of aging due to weather conditions. In such circumstances they were likely to have been of fairly recent origin prior to the time of the engineering inspection. Furthermore, the engineer observed that the notices provided absolutely no warning of the hazard which existed at the top of the fence on the date of the accident, or that a person could loose a finger by not adhering to the rule on the wearing of rings.
13. The defendant’s engineering report was furnished by Mr. Cathal Maguire of Maguire & Associates, from a joint engineering inspection which had been carried out on 20th April, 2015. Mr. Maguire noted that the ball stop netting was a common feature of the design of the perimeter fencing of astroturf pitches. He noted that ball stop netting tended to sag with time, resulting in footballs lodging in the netting above the fencing. Players attempting to retrieve footballs from the netting are vulnerable to the type of injuries sustained by the plaintiff, if they were wearing rings. He noted that unfortunately, a serious accident such as that suffered by Mr. Massey, was not uncommon. He was of opinion that while the perimeter fencing complied with the requirements of the British Standard, it seemed to him that the fencing was not appropriate for this particular application. The vertical wires should have been trimmed so as to ensure that they did not project above the top horizontal wires, so as to prevent the type of injury sustained by Mr. Massey occurring. He was of opinion that the design and construction of the perimeter fencing was unsatisfactory. While it complied with the requirements of the British Standard it was not suitable for the particular application of perimeter fencing for astroturf pitches, especially in view of the significant history of serious accidents occurring at the top of such fencing.
14. Mr. Maguire further noted that it would appear that the G.A.A. club did not properly maintain the ball stop netting.
15. Finally, Mr. Maguire noted that the plaintiff had been playing soccer and the wearing of jewellery and rings during the playing of soccer was generally forbidden. There were warning notices at the entrance to the astroturf pitches advising that jewellery and rings should not be worn. Had the plaintiff abided by the warning notices, as he should have done, he would have avoided his injury. On this basis, he felt that the plaintiff would have difficulty in succeeding in full in his action.
Conclusions on Liability
16. I am satisfied having regard to the substantial agreement in the engineer’s reports in this case, that it was clearly foreseeable that if the ball stop netting was allowed to become slack, footballs would become lodged between the netting and the projections at the top of the fencing. Furthermore, I accept the evidence in Mr. O’Keeffe’s report that accidents such as the one suffered by the plaintiff, are a relatively common occurrence and therefore are foreseeable to the occupiers of the property.
17. I find as a fact that the defendant failed in it’s duty of care as the occupier of the property, to maintain the ball stop netting in a safe and proper condition and in particular in his failure to ensure that the netting did not become slack over time and was looped over the front of the fencing, so it was to prevent balls being caught between the netting and the back of the fencing.
18. Furthermore, both the engineers appear to be in agreement that the fencing itself was unsuitable for use in the particular circumstances, and in particular that the fencing was unsatisfactory because there were vertical steel bars projecting above the top horizontal rim of the fencing itself. The projecting portions should have been removed. Accordingly, I am satisfied that the defendant did not comply with it’s obligations to the plaintiff, who was a visitor on the property, and in particular due to it’s failure to take the remedial steps as set out in Mr. O’Keeffe’s report, they failed to extend to the plaintiff the common duty of care as required of them.
19. The only real issue on liability is whether the plaintiff should be found guilty of contributory negligence for failure to heed the warning notices, which were placed on either side of the entry gate to the astroturf pitch. The plaintiff stated in his evidence that there were no such notices in existence at the time of his accident. There is support for this contention in the report furnished by Mr. O’Keeffe, who stated that at the time of the joint inspection in April 2015, the notices appeared to him to have been of fairly recent origin, due to the fact that they appeared fresh and clean and did not show any signs of weathering. In the absence of any oral evidence on behalf of the defendant as to when the notices were placed in situ, I prefer the evidence of the plaintiff to the effect that there were no notices in place at the time of his accident. Accordingly, it is not appropriate to make any finding of contributory negligence against him.
The Plaintiff’s Injuries
20. Apart from the evidence given by the plaintiff himself, there was no oral evidence produced in relation to the plaintiff’s injuries. Instead, the court was given a number of medical reports from the plaintiff’s treating doctors and a report from Ms. Mary Feeley, Vocational Consultant. On behalf of the defendant, the court was furnished with a report from Mr. Colin Riordan, Hand and Plastic Surgeon from an examination on 17th April, 2015 and a report from Ms. Siobhan Kelly, Vocational Consultant from an assessment carried out on 1st July, 2016.
21. At the time of the injury, the plaintiff stated that he heard a crunching sound as the bone in his finger snapped and then a ripping sound as the middle and top section of his finger was torn away from the rest of his hand. He stated that he experienced immediate excruciating pain. His brother took him to the Emergency Department of Mullingar Hospital. They bandaged the finger and also took photographs of the injured finger. He was told that he would have to attend at St. James Hospital, Dublin at 06.00 hrs on the following morning. He was given pain relieving medication, but was advised only to use it if absolutely necessary, as it might interfere with any anaesthetic that he may be given in St. James Hospital. The plaintiff stated that during that night, he was unable to sleep due to severe pain in his right hand.
22. When he attended at St. James Hospital, he was told that they would try to save as much of the finger as they could, but that it would be necessary to surgically attach the right hand and injured finger to a flap in his groin, so as to enable regeneration of the soft tissues therein. He was brought to theatre and after a five hour operation; he awoke to find his right hand surgically attached to the right side of his groin. He was detained in St. James Hospital for eight or nine days.
23. During the time that the hand was attached to his groin, he continued to experience severe pain his right hand. He required assistance both from the nursing staff and subsequently, upon discharge from his mother, with all aspects of daily living, such as dressing and going to the toilet. He found this very distressing. He also experienced severe pain when the dressings were changed. Initially the dressings had been changed daily and then every two to three days.
24. Approximately three to four weeks after the initial surgery, the plaintiff was readmitted to St. James Hospital to have his hand removed from the groin flap. He understood that this surgery had taken approximately three hours. He had remained in hospital for one day.
25. He returned to hospital one week later for a third operation to undergo a skin graft procedure. The skin graft had been taken from his right thigh and applied to his injured finger. This had been carried out under general anaesthetic. He remained in hospital until 19.00 hours on the same day. The plaintiff stated that during this period he had continued to experience severe pain. Following his discharge after the skin graft operation, he had returned to St. James Hospital every week for six weeks until the skin graft had settled down.
26. The plaintiff reported that the pain had been persistent for two to three months following the accident and had then become more intermittent and unpredictable. The pain was worsened by cold weather, which caused a shooting pain in his hand above the knuckle. He estimated that the severity of this pain was at a level of eight to nine out of ten. He stated that the digit stump itself was numb, but explained that if he hit his hand especially just above the middle knuckle, he would experience severe pain, which could continue for hours.
27. When seen by Dr. Cryan in March 2015, some seven months post-accident, the plaintiff reported some improvement in his experience of pain and stated that he had experienced periods when he had been pain free. The maximum period for which he had been without pain was for one week, on one occasion. These periods were broken by the unpredictable return of pain, which sometimes woke him from sleep.
28. The plaintiff was reviewed by Mr. Matt McHugh, consultant plastic surgeon on 9th February 2016, some eighteen months post-accident. At that time, he had a lot of problems with his right hand. The tip of the stump was very tender and cold weather caused severe pain. The plaintiff had had to give up sport and was unsure what he was going to do in the future, as he was hoping to develop some sort of sports career. The amputated stump itself was sticking out and would get in the way when he made a fist. The plaintiff stated that the finger was more of a hindrance than a help in this regard and he found that the amputated stump was really in the way. The plaintiff was very upset about the appearance of his hand and tried to keep it covered as much as possible.
29. Mr. McHugh noted that the middle finger of the right hand had been amputated at the proximal joint, so that half of the finger was missing. The amputated stump was very tender at the tip and was in the way when he made a fist. This made the hand as a whole very awkward and clumsy. The whole function of the hand was affected. The grip and strength of the hand was markedly affected. Mr. McHugh noted that there was an area of scarring in the right groin, which scarring measured approximately seven inches in length. There was a broad stretched scar, which was very noticeable. The plaintiff was upset about the appearance of this scar.
30. Mr. McHugh gave the opinion that the plaintiff had suffered a severe injury to the middle finger of his right hand. The actual finger itself had been amputated at the middle joint and half of the finger was missing. The half that was left was not really of any use, because there was no movement in it and it was sticking out and was in the way. It was more of a hindrance than a help. He noted that the plaintiff had a lot of problems with his right hand; cold weather was a big problem, general work and day to day tasks were very difficult. The plaintiff did not know what he was going to do in the future and felt that his job prospects were quite limited. Mr. McHugh was inclined to agree with this opinion. At that stage, some eighteen months post-accident, Mr. McHugh did not envisage any improvement in the future. The current position was permanent and no further treatment was indicated.
31. As already noted, the plaintiff suffered significant psychiatric sequelae as a result of the accident. He came under the care of Dr. Elizabeth Cryan, consultant psychiatrist. She first saw the plaintiff on 21st March 2015, some seven months post-accident. At that time, the plaintiff stated that he was very conscious of the appearance of the finger stump and for this reason wore a glove to hide his injured finger. Alternatively, he was inclined to keep his hand in his pocket. He described being very conscious that other people were looking at the finger. He stated that prior to the accident, he had been very sociable and had a wide circle of friends and would stay out socialising until the early hours of the morning. However, since the accident, he had lost confidence and did not socialise as he had done. Indeed, for the two months prior to his assessment by the psychiatrist, he had avoided going out completely. At the time of that assessment, the plaintiff explained that he could manage his personal care, except for cutting up his food. He stated that following the accident he had experienced weakness in the right hand and had dropped items, such as mugs. He was inclined to use two hands to pick up an item, such as a mug of coffee. His ability to write with his right hand, or to type on a keyboard, had been severely affected.
32. The plaintiff stated that he had experienced severe sleep disturbance since the accident. Initially he had been unable to sleep due to pain, but over the following months, he found himself waking up and was unable to return to sleep. He also experienced recurrent nightmares relating to the circumstances of the accident and in particular, he would hear the crunching sound, which had been made when his finger had been broken away from the hand. He stated that the nightmares occurred most nights, but that on an occasional night, he would sleep through. He explained that the nightmares were associated with a recurrence of the pain and on some occasions he was woken by pain. When he awoke, he was inclined to constantly relive what had happened in the accident. He also had recurrent regretful thoughts in which he asked “Why me?”. The plaintiff also stated that his mood had changed since the accident. He described bursting into tears or becoming explosively angry. He had also become particularly irritable since the accident. He had had outbursts of anger at home, during which he shouted at his parents and then burst into tears. Whenever he went out in public, he believed that people were looking at his finger stump, so he tended to wear gloves to hide his hand. He stated that he had lost all interest in sport, which had been his passion prior to the time of the accident. Prior to the accident he had played soccer, Gaelic football, hurling and badminton. Due to the injury, he was unable to grip the hurl or the badminton racket and so had not returned to these sports. Due to pain in the finger he was unable to return to Gaelic football. Due to a fear of injuring his hand, he had not returned to playing soccer at that time.
33. The plaintiff stated to Dr. Cryan that he felt like a “freak”. He had lost all self confidence and was unable to socialise with his friends, or go out and meet girls. He stated that he had contemplated suicide following an explosive outburst and reflected that “This is not living”. He stated that his family protected him from suicide and he did not believe that he would act on such suicidal thoughts. He stated that his concentration had been adversely affected since the accident. He reported a reduction in libido and also reported having a poor appetite. He also described having increased vigilance and a compulsion to check things, for example the water taps in the bathroom. The plaintiff stated that due to ongoing psychiatric sequelae, he had been commenced on Prozac by his G.P. in February 2015. He also took Solpadine to manage severe episodes of pain.
34. The plaintiff stated that sports were his life. He had been captain of the soccer team at school and had also been a member of the hurling team. He had hoped to be called up for the Meath county football team, as he had been asked to train with the team previously, but had not been able to do so due to an injured ankle.
35. Dr. Cryan took a collateral history from the plaintiff’s mother, who stated that prior to the accident the plaintiff had been an outgoing, bubbly person, who was very involved in sports. Since the accident, he had become angry and irritable. He never went out, but spent a lot of time alone in his bedroom. Mrs. Massey was very concerned about the impact which the accident had had on her son.
36. Mental state examination on that date showed that subjectively the plaintiff reported his mood as low, angry and anxious. He considered the future to be bleak and uncertain. He acknowledged the experience of suicidal ideation, but denied any suicidal intent. Objectively, the plaintiff’s effect lacked reactivity and he appeared low and anxious. In his thought content, he described being preoccupied with thoughts of why the accident had happened to him, associated with feelings of self blame and regret.
37. Dr. Cryan was of the opinion that the plaintiff was suffering from post traumatic stress disorder [hereinafter; P.T.S.D.], which was of at least moderate severity. The P.T.S.D. was characterised by intrusive nightmares, and regretful thoughts about the accident, in addition to reliving the experience of the accident and of his subsequent treatment. The plaintiff had tried to avoid such thoughts, but had been unable to do so. He had also avoided a return to the Longwood G.A.A. pitch. These symptoms were associated with marked sleep disturbance, irritability with explosive outbursts, feelings of self-blame, loss of interest and reduced concentration. The plaintiff described feeling disappointed with his psychological reaction to the accident and his consequent injury and was inclined to view himself negatively. He had also become anxious and reported repeated checking behaviours.
38. In addition to the P.T.S.D., Dr. Cryan considered that the plaintiff was suffering from a depressive disorder, which was characterised by low mood, associated with suicidal ideation, but no intent, reduced motivation and a tendency to self-isolate. He had been started on anti-depressant medication by his G.P., but to date, had not experienced any improvement.
39. Dr. Cryan stated that at that time it was too early to give a definitive prognosis. She recommended that he might try psychotherapy, in particular trauma-focused psychotherapy or cognitive behavioural therapy [hereinafter; C.B.T.] which could be undertaken in addition to his anti-depressant medication. She thought that he would need at least ten sessions of C.B.T. She noted that the plaintiff had also developed some obsessional anxiety and checking behaviours, following the accident, which had not been present prior to it.
40. The plaintiff was reviewed by Dr. Cryan on 4th July, 2015, approximately one year post-accident. He reported that in May, 2015, he had tried to cut his wrists. He stated that he had gone out with two friends and had drunk heavily. On arrival home, he had tried to cut his wrist, but had been interrupted by a noise upstairs. He stated that before he had tried to cut his wrist, he had been thinking about doing so for approximately one week and considered that his drinking had given him “the edge”. At the time, he considered that he had wanted to die, but when trying to cut himself, recalled that he had broken down into tears. He had not disclosed his intention to his friends and had not left any suicide note. His parents had learned about the attempted suicide on the following day. They brought him to see his G.P., who had referred him on to the mental health services in Trim. At the time of his assessment by Dr. Cryan he remained on Fluoxetine 20mgs daily.
41. Since the attempted suicide, there had been a further incident at home, where, following a row, the plaintiff had picked up a hurl and thrown it through a window. He then left the house and stayed with a friend, without telling his family. He explained that he had found it easier to be with friends and considered that he was under less pressure when away from his family. This had occurred in or about June, 2015. The plaintiff stated that since that second incident, he had decided to try to “face my demons”. He had returned to playing some football and had also taken up running. He found that the exercise had been helpful to him.
42. At the time of his reassessment, he reported that he felt more hopeful about his recovery because he had started to manage his anger more appropriately. He described ongoing feelings of anxiety and irritability and remained very conscious of people asking him about his hand. He reported that he continued to have ongoing sleep disturbance and he continued to experience nightmares. He also continued to experience memories when he was awake, during which he relived the accident, but considered that this was happening less frequently and less intensely. In relation to his physical experience of pain, the plaintiff reported that this was unpredictable. He explained that he was trying to use his experience of pain to motivate himself and tried to “run it out”. Because of this new strategy the plaintiff estimated that he had experienced less explosive outbursts, though he remained irritable and inclined to snap. He reported having more capacity to walk away from confrontation.
43. He continued to have persistent self-consciousness about his missing finger, except when with people who were familiar with his injury. He stated that he was no longer trying to cover up his finger continuously, but found himself covering it up automatically. He stated that his deformity caused him to feel awkward and self-conscious. He found it very hard to accept the change in his appearance.
44. Since the previous assessment, the plaintiff had returned to Longwood G.A.A. pitch. While that had been a difficult experience, he had managed to stay there and to participate in a game of football.
45. The plaintiff stated that memory of the accident could be triggered by different events; for example, if he saw blood splatter on a film on T.V. He estimated that the experience of intrusive memories was less long lasting than it had been in March, 2015.
46. The plaintiff stated that he had been shocked by his suicide attempt, as he had not considered that he would ever do such a thing. He believed that he would not repeat this behaviour and reflected that the number of good days had increased, although his mood varied. He continued to spend long periods on his own in his bedroom, although he was more inclined to go into town with his two friends. He had cut out alcohol since the incident of self-harm. He reported that his concentration remained poor. He also reported that his checking behaviours had persisted. His self-confidence remained low and he continued to lack self-confidence in relationships. He also remained hyper-vigilant in general.
47. He reported that his level of pain was unpredictable. The better weather had been helpful to his pain level, but he could set off the pain easily for example if he accidentally hit his hand off something. On occasion, he described waking with pain and also awoke following nightmares. He continued to need help when cutting food, such as a piece of steak.
48. In relation to his mental state examination, subjectively he described his mood as low, angry and anxious, although he felt that he was managing his anger outbursts better. He was apprehensive about the future. On occasion, he would experience periods when the accident totally preoccupied him, but on better days, he was inclined to feel less overwhelmed. Objectively, Dr. Cryan considered the plaintiff’s mood was slightly more reactive than it had been during the initial assessment, although his mood remained low and anxious. The doctor was of opinion that he plaintiff was continuing to suffer from P.T.S.D. which remained at a level of moderate severity. Overall he was managing his anger outbursts better, although there had been two serious incidents, one of self-harm and the other of harming property and disappearing. Since the previous assessment the plaintiff had managed to force himself to return to the Longwood G.A.A. pitch and was using running as a coping strategy to deal with feelings of irritability and anger. He remained disappointed with his psychological reaction to the accident and was apprehensive about his future.
49. Dr. Cryan also considered that the plaintiff continued to suffer from a depressive disorder, although his mood had become more variable. There had been some improvement in his sleep pattern, although it had not returned to normal. She was concerned about the incident of self-harm and had made contact with the plaintiff’s G.P. and understood that he had been referred to the mental health services in his area. She noted that he remained on anti-depressant medication. Dr. Cryan considered that the plaintiff’s prognosis had to remain guarded and uncertain, given the episode of self-harm and the unpredictability of his physical and psychological symptoms, although there had been some improvement in the severity of some of his psychological symptoms.
50. In his evidence at the trial, the plaintiff stated that while he thought that he would have recovered by now, he was making some improvement. He hoped to return to college in the begining of 2017 to re-sit the module in the sports and leisure course which he had failed prior to the time of the accident. He stated that with the help of family and friends, he was getting to a better place psychologically. He stated that he was more optimistic now than he had been previously. While he stated that he did not think that he would be able to be a gym instructor due to his injuries, he hoped to become a lecturer or a teacher in the area of sport. He stated that his brother was helping him to use a computer, as it was difficult for him to use a keyboard. He stated that he had taken up running as advised by his G.P. and found this helpful if he was feeling down. He had also started going on a special diet, which he also found of assistance.
51. In addition to the scarring to the stump of the finger, the plaintiff also had a scar in the area of the right groin. This measured 14cm by 4cm at the site of the elevation of the groin flap. When viewed by the court it was red in colour and was clearly visible, but was not grossly ugly.
52. At the hearing of the action, it was indicated by counsel on behalf of the plaintiff, that the plaintiff was not claiming a specific sum for loss of earnings into the future. However, he was inviting the court to make an award of damages under the heading of general damages to cater for the loss of opportunity which the plaintiff would suffer in the job market, due to the injuries and disability which he had suffered as a result of the accident. In this regard the court was invited to consider the report furnished by Ms. Mary Feely, vocational rehabilitation consultant. She noted the plaintiff’s results in the Leaving Certificate and that he had done a Post Leaving Certificate (P.L.C.) course in Sport and Recreation at Columba College, Killucan, which was a Fetac level five course, prior to the time of the accident. However he had failed one subject and was due to repeat that module in autumn, 2014. She noted that his long term plan was to go on to Athlone Institute of Technology and to qualify to work in the sport/fitness/leisure sector. However, she stated that given the plaintiff’s academic background, she had doubts as to whether he would have gained entry to a third level course, or coped with the academic demands of such a course. She was of the view that his likely qualification level would have been the P.L.C.
53. Ms. Feely noted that there was quite a limited range of jobs that would be precluded by the functional loss of a middle finger. It was more difficult to evaluate the effect of occasional pain, which he described. Furthermore, she noted that somebody suffering from cold intolerance was unlikely to work outdoors e.g. as a construction labourer or in forestry, or in a cold environment, such as operative in a meat processing business, or cold store. Therefore the plaintiff would continue to have reduced job opportunity as long as that condition persisted at the current level.
54. Ms. Feely noted that the functional impairment resulting from loss of a middle finger probably should not preclude somebody from resuming such a P.L.C. course and one would be slow to suggest that it would preclude somebody from working as a gym instructor, for example, or working in jobs based on a third level qualification in sport and recreation. Therefore it appeared that one of the main effects of his injury had been to delay him in continuing his plans for training, at least by one year because he missed the opportunity to return to education in September, 2014 and he remained very disrupted for a long time subsequently. In his case the delay has been more protracted due to his psychological state.
55. Ms. Feely noted that at the time of her assessment, the plaintiff presented as very lacking in confidence, with low mood and with a hopeless mindset. He was strongly advised to explore the services of the National Learning Network. She was of opinion that his functional loss was not a barrier to most of the work for which he would have been eligible, but his mental health seemed to be impeding him to a quite inordinate degree and this required psychiatric opinion and prognosis. From a purely functional perspective, the occupational restrictions from such an injury would be relatively low, but his cold intolerance would undoubtedly limit his job opportunity, as would pain. Ms. Feely stated that it was entirely reasonable that he would have been delayed in his occupational plans and generally one would hope that somebody who loses such a finger, would get back on track in terms of training and employment. However he had developed a significant adverse psychological reaction to his situation, in the form of a P.T.S.D. condition and depression, which seemed to have been undermining him to a dramatic level. He reported a very dysfunctional lifestyle with major loss of confidence, an inability to look at his hand due to the cosmetic defect and he was reluctant to be out and about and to interact with others. Ms. Feely stated that it was a matter for psychiatric opinion to comment on as to when, or whether, his response to his circumstances might allow him engage with the world of work, or training / education.
The defendant’s reports
56. The court was furnished with a report from Mr. Colin Reardon, consultant hand and plastic surgeon from an examination held on 17th April, 2015. He noted that at that time the plaintiff complained of severe pain in his right hand, which would shoot up his forearm. His right hand was very sensitive when exposed to cold weather. He could occasionally experience severe pain in his right hand at night. There was reduced strength in his right hand. Certain small items can slip out of his right hand and the injury had affected his writing. He was concerned regarding the appearance of his right hand and tended to wear a glove as much as possible.
57. On examination, Mr. Reardon noted that there was a grossly abnormal appearing middle finger, which had been amputated through the proximal interphalangeal joint. The remaining portion of the finger was atrophic and had been partially closed by means of imported tissue from a groin flap as well as a split skin graft over the ulnar border. All the wounds were fully healed but the skin grafted area was still somewhat pigmented in appearance. On the dorsum of the hand there was a 5cm scar extending proximally from the base of the ring finger. Overall the quality of the skin in the stump was poor and lacked sensation. He complained of discomfort when the stump was firmly palpated.
58. There was some slight loss of flexion in the remaining metacarpal phalangeal joint of the middle finger, which demonstrated active flexion to 70 degrees, compared with normal values of 90 degrees. Extension was normal. He also noted the scar to the right side of the groin. The scar was well healed and non-tender, although still somewhat pigmented in its appearance. There was some slight loss of volume in the area as a result of the flap transfer.
59. Mr. Reardon was of opinion that the remaining portion of the finger will be of little functional value due to the loss of length as well as impairment of sensation. Functional loss equated to 80% loss of function in the finger, which amounted to a loss of 16% of the function in his hand. This would adversely affect both manual dexterity and grip strength. There was also a significant cosmetic disfigurement present, which will be permanent and visible at conversational distance. The wearing of a finger prosthesis may improve the appearance of the hand, but would not improve its function. He expected that over the next two years most of the remaining symptoms would gradually settle, although some symptoms of cold hyper sensitivity may persist into the long term. No late complications were to be expected.
60. The court was also furnished with a report from Ms. Siobhan Kelly, vocational assessor dated 19th July, 2016. She had assessed the plaintiff on 1st July, 2016. She was of opinion that the plaintiff was well positioned to continue in his career in sports and recreation, focusing on the business / administrative aspect. She noted that according to the college prospectus, the course that the plaintiff was engaged in was “designed to equip students with the theoretical and practical skills necessary for employment in the sports and leisure industry, with a particular emphasis on the business aspect of the industry”. She was of opinion that when the plaintiff had repeated the outstanding module, he could secure employment in a range of entry level jobs within the sector, such as leisure centre attendant, sports retail – sales assistant and customer service in tourism / entertainment (e.g. cinema). Such jobs would pay an average of €19,000 – €22,000 per annum and would accommodate the plaintiff’s current education / skills and limitations.
61. Alternatively, he could continue with his studies. He could seek to secure a place on a course such as the Higher Certificate in Business in Sport and Recreation in Athlone Institute of Technology. This is a level six course and would provide him with a background necessary for a successful career in a wide range of tourism, leisure, business and sports related activities, with a particular focus on the business element of sport. He would then have the option of continuing on to a degree level course, if he was capable of doing so.
62. Ms. Kelly was of opinion that returning to education should not pose any significant difficulty for the plaintiff. Any restriction in his speed of writing or keyboard work, could be accommodated through the use of various suitable software such as word prediction software and voice recognition software, which are both widely available. Alternatively the plaintiff could seek employment as a fitness instructor.
63. Ms. Kelly noted that at the assessment the plaintiff had stated that he had considered becoming a secondary school P.E. teacher in the future. However, she was of opinion that he would have had difficulty attaining a place and may have had difficulty completing the course given his previous level of educational attainment and levels of motivation.
64. Ms. Kelly noted that the plaintiff had completed (except for one module) a level five course in Sports and Recreation in his local vocational school. This was a sports orientated course with a focus on the business side of the sports industry, with recommended progression routes to a variety of courses including the Higher Certificate in Business in Sport and Recreation in Athlone Institute of Technology. This option was currently available to the plaintiff and would allow him gain further qualifications and secure employment in management roles, such as leisure centre manager and sports development officer. He had also expressed an interest in becoming a fitness instructor. Suitable options included swimming instructor / aerobics instructor / lifeguard, athletics training, cycling, etc. The starting rate of pay for fitness instructors was €19,000 – €30,000 gross per annum. As already noted she was of opinion that the plaintiff could currently seek employment at a range of entry level jobs including leisure centre attendant, sports retail / sales assistant, customer service in tourism / entertainment (e.g. cinema). Such jobs would accommodate the plaintiff’s current education / skills and limitations.
65. There were also other entry level jobs which may require short term training, which the plaintiff could compete for including: sales work, courier driver, retail security or forklift driver.
66. Ms. Kelly stated that acknowledging the difficulties that the plaintiff had experienced and the resulting reduced functioning of his hand as stated by Mr. Reardon, there were a range of employment options currently available to the plaintiff, as were available to him prior to his accident, or he could continue to further his qualifications and seek suitable and lighter type management roles within the sports and recreation industry. Based on this, she did not agree that there was a loss of earnings or a loss of opportunity for the plaintiff.
Conclusions on Quantum
67. The plaintiff in this case is a young man of 23 years of age, who was born on 8th September, 1993. On 5th August, 2014, he suffered a catastrophic degloving injury to the middle finger on his right hand, while retrieving a ball which had become stuck in netting at the side of an astroturf football pitch. In the course of the accident, the middle finger on his right hand was amputated just below the proximal interphalangial joint. The plaintiff is right hand dominant.
68. Treatment of the injured finger was prolonged and painful. The plaintiff underwent three operations to bring the finger to its current condition. In the first operation, the injured finger was surgically attached to a flap which had been opened in the right side of the plaintiff’s groin. It remained in that position for a number of weeks. This was to allow the soft tissues and the vascular system to regenerate. Some four weeks later, the plaintiff was readmitted to hospital for a further operation under general anaesthetic to remove the hand from the groin flap and to close up the area in the groin. One week following that, the plaintiff returned to hospital to undergo a skin graft procedure. A skin graft was taken from his right thigh and was applied to the stump of the injured finger.
69. Between the operations and subsequent to them, the plaintiff was obliged to attend at the hospital on a frequent basis for change of dressings. He continued to experience severe pain in the finger and hand, particularly in cold weather and if the finger should knock against something. While there has been some improvement, these complaints are continuing down to the present time. In addition to these complaints, the plaintiff finds that the stump of the finger tends to stick out and it gets in the way when he is carrying out simple tasks, such as dressing.
70. The defendant’s expert, Mr. Riordan, considered that over the next two years most of the plaintiff’s remaining symptoms would gradually settle, although he accepted that some symptoms of cold hypersensitivity may persist into the long term. The plaintiff’s expert, Mr. McHugh, was somewhat less optimistic. He stated that he did not envisage any improvement in the plaintiff’s condition in the future. He was of opinion that the position at the present time is permanent and no further treatment was indicated. On this basis, the court is satisfied that the plaintiff’s continuing complaints of cold hypersensitivity and pain if the finger should bang against anything, are sequelea that are likely to continue into the long term.
71. In addition to the plaintiff’s physical symptoms, he has also suffered a severe psychiatric injury due to the effects of the injury, the cosmetic appearance of his hand and his functional disability. This aspect is dealt with in detail in the reports furnished by Dr. Cryan, which have been outlined earlier in this judgment. I accept the evidence of Dr. Cryan as set out in her reports, that the plaintiff has suffered moderately severe P.T.S.D. and a depressive disorder as a result of the injuries sustained in the accident. The plaintiff has required psychotropic medication to deal with this aspect of his injuries. The court notes that on one occasion, in or about May 2015, the plaintiff became so despondent about his physical condition, that he made an attempt to end his life. This indicates that his psychological distress at that time, was of an acute and severe nature. It was not a spur of the moment episode, as the plaintiff told his psychiatrist that he had been thinking about ending his life for about one week prior to that incident. It may well have been precipitated by the fact that he had taken quite an amount of alcohol on the occasion in question. Thankfully, the plaintiff has made considerable improvement and has not tried to self-harm since that time. He has also taken the precaution of giving up drinking alcohol, which was a very sensible thing to do.
72. According to Dr. Cryan, the plaintiff continues to suffer from P.T.S.D. and depression. However, there has been improvement as his mood has become more variable and there has been some improvement in his sleep pattern. Nevertheless, at the time of that report in August 2015, Dr. Cryan was of the view that the plaintiff’s prognosis remained guarded and uncertain, given the episode of self-harm and the unpredictability of his physical and psychological symptoms.
73. The plaintiff is very concerned about the cosmetic aspects of his injury. He feels that the stump of the finger is very unsightly and that people tend to stare at it when he is out in public. For this reason, he usually wears a glove on his hand when out of the house. The plaintiff is also concerned by the appearance of the scar on the right side of his groin, which is visible at conversation distance. Given that the plaintiff is a single young man, this is a significant disability to carry for the rest of his life.
74. At the time of the accident, the plaintiff had been doing a P.L.C. course in sports and recreation at a college in Killucan. He had failed one of the modules and was going to have to repeat that module in the academic year commencing in September 2014. As a result of the injury sustained in the accident, the plaintiff was not able to return to his studies. However, the court was informed that he was due to resume his studies in January 2017. It was not clear whether this was repeating the module which he had failed prior to the time of the accident, or was a new course of study. However, it was a course of study in the sport and recreation area. Counsel for the plaintiff indicated to the court that while there was no specific claim for future loss of earnings per se, they were inviting the court to make a substantial award in the context of the award of general damages to cater for loss of opportunity in the job market generally, which the plaintiff will suffer as a result of the injury to his hand.
75. I do not think that the court can make a substantial award of damages under this heading. This particular plaintiff, is a man who was very involved in sporting activities and who wished to take up a career in the sports and/or leisure industry. Both Ms. Kelly and Ms. Feely, appeared to be of the view that the plaintiff’s functional loss in his right hand would not be a barrier to the type of work in the sports and leisure industry, which he would have applied for if the accident had not happened. Ms. Feely was of the view that from a purely functional perspective, the occupational restrictions from the plaintiff’s injury, would be relatively low, but his cold intolerance would undoubtedly limit his job opportunity, as would pain. She was of opinion that it was entirely reasonable that the plaintiff would have been delayed in his occupational plans, but generally one would hope that somebody who looses such a finger, would get back on track in terms of training and employment. It seems to me that the assessment given by Ms. Feely is a fair and reasonable assessment of the plaintiff’s job prospects at the current time.
76. Given the plaintiff’s educational qualifications to date and the studies which he is likely to pursue in the future, it would appear that he is likely to seek employment as a fitness instructor or leisure centre manager or worker. In such jobs, he would be required to have a knowledge of human anatomy and a good knowledge of the operation of various types of exercise equipment which is commonly found in a gym. He would then give instruction to clients in the safe use of such equipment. This could be done by giving a comprehensive explanation of the equipment and of the amount of exercise that should be undertaken by a client without causing injury to their bodies. I am in agreement with the opinions of Ms. Feely and Ms. Kelly, that the injury to the middle finger on the right hand, would not significantly impair the carrying out of his duties in such a role. In such circumstances, one would not be inclined to award substantial damages in respect of a loss of opportunity in the job market. However, while the plaintiff would like to work in the sports and leisure industry, it may be that for one reason or another he is not able to obtain or retain work in that sector which might occur if the leisure centre were put out of business. In such circumstances, given his educational qualifications, he might be put onto the general job market with the lack of manual dexterity, that he has due to the injuries sustained in the accident. This would significantly impair his chances of obtaining employment in a range of jobs which required a reasonable level of manual dexterity. The plaintiff is entitled to damages to compensate him for the disadvantage that he would experience in the general job market in such circumstances.
77. Finally, in assessing damages in this case, one has to have regard to the fact that the plaintiff was a very keen and accomplished sportsman prior to the time of the accident. He had played soccer, Gaelic football, hurling and badminton prior to the accident. He has stated that since then, he is unable to grip either the hurl or the racket and, therefore, has not been able to return to hurling or badminton. Furthermore, due to the pain in the finger when it is struck against anything, he has not been able to return to playing Gaelic football. This was particularly distressing for him, as he had hoped to be selected for the County Meath football team. This was not just an idle or speculative hope, as I note that he told the psychiatrist that he had previously been selected on the Meath panel, but had not been able to take up his place, due to an injury to his ankle at that time. Thus, it would appear that he had a realistic chance of making the Meath team. It appears that the plaintiff has got back to playing some soccer, albeit at a purely recreational level. He has also taken up running, which has helped in the recovery of his psychiatric injuries. The award of damages, must take account of the fact that as a result of the accident, this plaintiff has been deprived of the ability to participate in sports to the level that he had been prior to the accident, which for him is a considerable loss.
78. The court was invited by Mr. Walsh, S.C., on behalf of the defendant, to have regard to the various heads of compensation as set out in page 37 of the Book of Quantum. While providing some assistance, the values given therein do not take account of the groin flap operation, or the cosmetic consequences of that operation. Nor do those values reflect the fact that playing sports was the plaintiff’s passion; which said activity has been dramatically curtailed as a result if the accident. Nor do they include any amount for loss of opportunity in the job market. In addition, as was conceded by counsel, the valuations given therein, do not take account of any psychiatric sequelea as a result of the injuries.
79. Taking all relevant matters into account, I award the plaintiff general damages for pain and suffering and loss of amenity to date in the sum of €65,000, together with future general damages in the sum of €60,000 and €20,000 for loss of opportunity in the job market and agreed special damages of €700, giving a total award of €145,700.
Walsh v Tesco Ireland Ltd
[2017] IECA 64
JUDGMENT of Ms. Justice Irvine delivered on the 3rd day of March 2017
1. This is the defendant’s appeal against the judgment and order of the High Court (Barr J.) dated 6th May 2016. By his order the High Court judge awarded the plaintiff a total sum of €1,439,495 damages in respect of injuries sustained by her in a fall which occurred at the defendant’s premises on 28th August 2012 and in respect of which liability was conceded.
2. The damages awarded were as follows:-
General damages for pain and suffering to date: €125,000
General damages for pain and suffering into the future: €135,000
Past special damages: €110,987
Loss of earnings for two years: €20,000
Loss of earnings thereafter: €373,030
Future Urology costs: €132,750
Future home help: €110,000
Miscellaneous expenses: €192,882
Aids and appliances: €239,846
TOTAL: €1,439,495
3. In its notice of appeal the appellant seeks to challenge the lawfulness of the award made in respect of each category of loss.
4. Before engaging with the submissions of the parties, it is necessary to briefly engage with the relevant background facts as found by the trial judge. These are extensively set out in the lengthy and careful judgment. That being so, I will only refer to those facts which I consider material to the main issues to be addressed on this appeal.
Background facts
5. The respondent, Ms. Patricia Walsh, is a married lady who was born on 3rd March 1968. She and her husband run a stud farm in Co. Clare and they have two daughters.
6. On 28th August 2012, Ms. Walsh slipped and fell heavily to the floor on the appellant’s supermarket premises at Kilrush, Co. Clare. At the time of her fall, Ms. Walsh was in robust good health. She had recovered fully from the effects of a fall in which she had injured her back in 2008.
7. Ms. Walsh was hospitalised following the events the subject matter of these proceedings. She had severe pain in her low back radiating into her left leg. Strong pain relieving medication and frequent injections were required. Ms. Walsh developed urinary symptoms and a loss of sensation in the genital area. She had problems both with urine retention and leakage. Ultimately self catheterisation was commenced three times daily and the trial judge accepted that she will require to self catheterise in this fashion for the rest of her life. It was not contested that Ms. Walsh has lost the enjoyment of normal intimate sexual activity by reason of her injuries and that this situation would be permanent.
8. Insofar as Ms. Walsh’s back is concerned, in February 2013 she underwent surgery in the course of which a disc fragment was removed from the spine. The benefit of this surgery was short lived in terms of pain relief. In 2014, she undertook an eight week in-house extensive rehabilitation programme in the National Rehabilitation Hospital. This was not successful. Ms. Walsh also undertook a series of pain relieving injections and spinal blocks in an effort to bring her pain under control. In February 2015 she had surgery to insert a spinal cord stimulator in her back. The trial judge accepted Ms. Walsh’s evidence that her pain has been significantly reduced as a result, but it has not resolved. She continues to have ongoing pain and this will likely be permanent with the result that she will require repeated rhizotomies and the ongoing replacement of her spinal cord stimulator over the course of her life.
9. It is clear from the judgment of the trial judge that as a result of her physical injuries, Ms. Walsh also developed severe psychological sequelae. She was diagnosed with post traumatic stress disorder and depression. She has required and will continue to require significant anti depressant medication and continues to need the support of ongoing counselling. It was accepted by the trial judge that her psychiatric problems were unlikely to resolve themselves.
10. It is clear from the evidence recited by the trial judge in the course of his judgment that the plaintiff’s social and recreational life has been grossly curtailed. She lost many friends and found herself unable to participate in any of the sporting activities she formally enjoyed. She had participated in a number of mini triathlons and had played GAA at an extremely high level. She was an experienced horsewoman and was capable of breaking horses for the purposes of her business. Further, Ms. Walsh has been left with an ataxic gait and she requires a stick to assist her for a wide range of activities. Her life is now to be punctuated by ongoing medical treatment and review.
The submissions
11. I will now summarise the submissions of the parties. For the ease of the reader, each of the headings which follow, insofar as they relate to the appellant’s challenge to a particular award of damages made by the trial judge, are those which he used to describe the relevant head of claim at para. 214 of his judgment and which I have replicated at para. 2 of this judgment.
The appellant’s submissions
General damages for pain and suffering to date: €125,000
General damages for pain and suffering into the future: €135,000
12. As to the overall award of general damages in the sum of €260,000, the appellant submits that the respondent’s injuries did not merit an award of such magnitude. It contends that the award was disproportionate in all of the circumstances such that it should be set aside and varied downwards. In this regard it relies on the decision of this court in Payne v. Nugent [2015] IECA 268 and Nolan v. Wirenski [2016] IECA 56.
13. While the appellant acknowledges that the respondent suffered serious injuries it nonetheless submits that in assessing general damages the trial judge did not have sufficient regard to an injury which she had sustained to her back in 2008 which was severe enough to warrant an orthopaedic review and which was a negative prognosticator in terms of her health.
14. The appellant also submits that the level of general damages awarded fails to reflect the significant improvement in the respondent’s level of pain since the insertion of her spinal stimulator and in addition the range of activities which she is capable of enjoying. Counsel for the appellant, Mr. Lynch S.C., relies upon Ms. Walsh’s evidence concerning her ability to ride a bicycle, drive a car and attend social events. He also seeks to rely on the fact that she scored 16 out of 20 on the Barthel ADL Index test, a test which measures a person’s capacity for independent living.
15. Counsel also draws the court’s attention to the current Book of Quantum and in particular to the range of values provided in respect of severe and permanent soft tissue spinal injury (€52,300 – €92,000). He does so in an effort to demonstrate that the award made in this case was excessive, it being almost three times the upper end of the range advised. It is submitted that even taking into account the respondent’s other injuries and possible future surgeries that the ultimate award of general damages is excessive.
The management of the trial
16. While not argued with any great enthusiasm, the second submission advanced is that the trial judge erred in law when he permitted the interruption of the respondent’s examination in chief to allow two of her expert medical witnesses give their evidence, despite objection. This was unfair to the appellant in that it was denied the opportunity of putting to these experts any admissions that the respondent might have made concerning her condition or her activities while under cross examination. This inherent unfairness was a ground which might, depending upon the court’s conclusions on the other grounds of appeal, warrant a retrial.
RRR
17. The appellant submits that the High Court judge, in calculating future special damages, used excessively high multipliers because he accepted as applicable an impermissible RRR (“RRR”) on investment income. No evidence had been adduced to warrant a departure from the 3% or 2.5% RRR advised in Boyne v. Dublin Bus [2006] IEHC 209 and McEneaney v. Monaghan County Council [2001] IEHC 224. The respondent had made out no specific case to support the calculating of her various claims for future special damages by reference to an assumed RRR on investment income of either 1% or 1.5% per annum. She had done no more than provide actuarial reports calculating her losses by reference to different discount rates. The decision in Russell v. Health Service Executive [2015] IECA 236 could not, counsel submits, be relied upon to support a RRR on investment income of 1% or 1.5% as in its judgment the court had stated that a consideration of the appropriate RRR to be used in non-catastrophic injury cases would be left over to be decided in a case where it arose. Further, the respondent was not under the same level of disability as the plaintiff in Russell.
Loss of earnings for two years: €20,000. Future loss of earnings: €373,030:
18. The appellant submits that in calculating the respondent’s loss of future earnings the trial judge erred in law and/or in fact in failing to afford the respondent some future income generating capacity, having regard to the evidence. The evidence established that the respondent had significant occupational skills and would be capable of working from home with the result that the trial judge should have given Ms. Walsh an assumed income generating capacity of circa €100 net per week.
19. The second submission advanced by the appellant concerning this head of claim is that the award was excessive by reason of the failure on the part of the trial judge to make his calculation by reference to an assumed RRR of 3% or 2.5%.
20. The appellant further argues that the sum of €20,000 allowed by the trial judge under the heading “Loss of earnings for two years” was included in Ms. Walsh’s claim for future loss of earnings in respect of which the trial judge had awarded €373,030. Accordingly, the award had to be reduced by €20,000 to avoid double recovery.
21. Finally, counsel submits that the trial judge erred in law in failing to reduce the respondent’s future loss of earnings to take account of the exigencies outlined in the decision in Reddy v. Bates [1983] I.R.141.
Future Urology Costs: €132,750
22. The appellant submits that the trial judge’s calculation of future urological costs was not supported by the evidence. In addition, it maintains that the trial judge applied the incorrect multiplier based upon an impermissible assumed RRR on investment income.
23. The trial judge allowed in full the capitalised costs of the respondent’s participation in what is commonly known as the Drugs Payment Scheme. The terms of that scheme require the patient to pay the first €144 of the cost of their drugs or other specified medical needs each month. The respondent’s expert witnesses accepted that the recurring costs of the equipment she required for self catheterisation were covered by the scheme. Hence, in circumstances where the trial judge had awarded her the full capital costs of participating in the scheme in future years, it was said that he should not have allowed for her future catheterisation costs as a separate item of special damage. It is submitted that the evidence only supported future urology costs in the sum of €900 per annum. This would reduce the award under this heading to €26,550.
Future Home Help: €110,000
24. The first complaint made by counsel for the appellant is that the sum awarded for past home help (€29,000) was excessive. That care had been provided by family members who had not been paid. Counsel submits that the trial judge impermissibly allowed the cost of that care at commercial rates.
25. The appellant also submits that insofar as the sum awarded in respect of future home help is concerned (€110,000), the same was excessive by reason of the fact that the loss was calculated using a multiplier reflecting an assumed RRR of 1%. Nonetheless counsel, very fairly in my view, accepts that the appellant’s own evidence in respect of this head of claim valued the respondent’s claim at €95,937 using a 3% RRR. Thus, he accepted that if this court was satisfied that the appropriate RRR was 1.5%, his client’s figure would come in at €116,844, a sum slightly above that which was actually awarded by the trial judge.
Miscellaneous Future Expenses: €192,882
26. Counsel for the appellant submits that the trial judge failed to calculate the capital costs of the items dealt with under this head of claim by reference to the evidence as a whole as is apparent from para. 186 and 187 of his judgment. He appears to have had no regard to the evidence of the defendant in relation to this head of claim, which comprised a significant number of separate elements, and which was allowed in full. In addition, he submits that the evidence did not support the plaintiff’s claim for the cost of two rhizotomies procedures per year. The evidence was that they would likely be required every nine to twelve months on average. Likewise, the trial judge, when valuing the respondent’s claim for the cost of visiting her general practitioner twelve times a year, had failed to discount that claim to take account of the fact that people ordinarily visit their general practitioner a number of times per year.
Aids and Appliances (including cost of home adaptation): €239,846
27. Counsel submits that the evidence did not support Ms. Walsh’s need for all of the aids and appliances which were allowed in the sum awarded by the trial judge. He ignored the evidence that Ms. Walsh was not using some of the equipment which had already been provided. He instanced in this regard a trolley and perching stool. Further, the trial judge had allowed for the cost of a mobility scooter, which Ms. Walsh had stated she would not use.
28. Other than to have removed one or two items from the respondent’s list of aids and appliances, the trial judge would – or so the argument ran – appear to have accepted in full all other items and their proposed cost and had paid no regard to the evidence of the appellant’s occupational therapist, Ms. McElwain.
29. Counsel submits that the trial judge ought to have made his assessment based upon what he considered “a reasonable individual with an appropriate level of resources” would likely expend on their own care in terms of aids and appliances inflicted with similar injuries to those of Ms. Walsh. The appellant ought not to have been fixed with the cost of a surface level hob, built-in oven, drawer dishwasher and standing freezer as these were all items that a householder might be expected to purchase for themselves in any event. Given the functional capabilities of the respondent no reasonable person spending their own money would have made the changes at the cost allowed by the High Court judge.
30. Counsel submits that this Court is in a position to determine what should have been awarded in respect of this head of claim and he invites the court to reduce the sum awarded in line with the evidence of Ms. McElwain, the appellant’s occupational therapist, to take account of the practical realities of the respondent’s daily requirements and her functional capacity.
31. In addition to the foregoing, the appellant submits that the sum awarded in respect of this head of claim was excessive due to the fact that the calculation was based on an impermissible assumed RRR.
Respondent’s submissions
General Damages
32. Counsel for the respondent, Mr Edward Walsh S.C., submits that the trial judge’s award of general damages was fair, just and proportionate having regard to his client’s injuries. The overall award was well within the permissible range for injuries which were significant and lifelong. The award was not inconsistent with the fact that the plaintiff’s level of pain had been reduced since the insertion of the spinal stimulator and neither was it inconsistent with her results on the Barthel ADL Index test. The sum was in accordance with the recent decisions of this court concerning the requirement that damages be proportionate not only to the plaintiff’s injuries but to the damages commonly awarded by the courts in respect of other injuries of a lesser or more severe nature.
Management of the trial
33. The decision of the trial judge to permit two of the respondent’s experts to give evidence prior to the completion of her evidence was an unavoidable consequence of the manner in which litigation of this nature is conducted in our court system. Whilst the imposition of these witnesses, prior to the completion of the plaintiff’s evidence, was not ideal, the appellant had not demonstrated that its capacity to properly cross-examine the plaintiff had been diminished. No prejudice had been established and in such circumstances the defendant could not realistically claim an entitlement to a retrial.
RRR on Investment income
34. Counsel submits that the trial judge was correct to apply the law as set out in Russell v. Health Service Executive having regard to the circumstances of this case and the permanent nature of the respondent’s injuries. The decisions in Boyne and McEneaney were decisions of the High Court and were made in a different economic climate when both inflation and interest rates were higher. At the time of the hearing of the present case Russell represented current law and it was not open to a judge of the High Court to depart from the guidance set forth in that judgment. It could not be said that the failure of the respondent to call expert evidence to establish the likely RRR she might achieve on any capital sum awarded to her in respect of future financial loss denied her the entitlement to have the court apply the RRR as advised in Russell. To require such evidence would defeat all logic and would lead to an abuse of the Court’s limited resources and would also impose an intolerable costs burden on the parties to litigation of this nature. The court should assume a RRR of 1.5% per annum on all sums awarded in respect of claims for future special damage save for future care where the assumed RRR should be 1% per annum. Counsel submits that the onus was on the defendant to seek to differentiate this case on its facts such that it might demonstrate that the RRR as advised in Russell should not apply.
Loss of Earnings
35. The respondent accepts that the overall award must be reduced by €20,000 to reflect the double count referred to at para.15 above.
36. Counsel submits that having regard to the evidence as to the respondent’s physical and mental limitations the trial judge was entitled to find that she would not return to work and that she had no realistic future earning capacity. It was agreed that the respondent would have no capacity to work outside the home. While there was evidence that Ms. Walsh could carry out some work of a limited type within the home there was credible evidence upon which judge was entitled to conclude that he should treat her as having a nil future earning capacity.
37. Counsel accepts that it is customary for trial judges to discount claims for future loss of earnings based upon the exigencies referred to in Reddy v. Bates. However, he submits that there were no particular circumstances that would mandate the discount in this case given the type of employment the trial judge considered Ms. Walsh would likely have pursued and the prevailing economic climate. If he was incorrect in that submission, counsel argues that the discount to be applied on the facts of the present case should be at the lowest end of the relevant spectrum.
Urology Costs
38. While not so accepted in the written submissions, counsel for Ms. Walsh now accepts that having allowed in full the claim for the capital cost of her participation in the Drugs Repayment Scheme, that no sum should have been awarded by the trial judge in respect of the cost of equipment required for her future self catheterisation, which was €3,600 per annum. However, he referred to the fact that the evidence given by Mr Raymond Rogers on behalf of the respondent was to the effect that including the catheters the annual costs of meeting Ms. Walsh’s ongoing urology needs would be something in the region of €6,000 – €8000. That being so, the only sum to be deducted was the capitalised cost of the catheters. Counsel also submits that the multiplier used by the trial judge in his calculation was in conformity with that advised in Russell.
Home Help
39. Counsel submits that the sum awarded in respect of this head of claim was in accordance with the evidence. In any event, if the court were to apply a multiplier reflecting a 1.5% RRR to the sum which the appellant proposed as reasonable in respect of this head of claim, the award made by the trial judge would have been slightly higher than that which he actually made. Accordingly, there was no basis for interfering with his award.
40. As to the submission that the trial judge in calculating Ms. Walsh’s claim for past care should have adopted an hourly rate significantly below the then prevailing commercial rate to reflect the fact that such care had been provided by family members, that argument could not succeed. First, the evidence led by both sides had valued the care at Health Board rates. Second, as a matter of law, the trial judge was required to make his assessment based upon the prevailing commercial rates.
Miscellaneous Future Expenditure
41. The trial judge was entitled to accept in full Ms. Walsh’s claim for each of the individual items of expenditure which fall within this head of claim. Insofar as it is submitted that the trial judge included within his award sums in respect of which an evidential basis had not been laid, this was incorrect. Insofar as the appellant complained that the trial judge had allowed for the cost of two rhizotomies per year, it had been the evidence of Professor Harmon that two – three pain relief and spinal block procedures per year would be reasonable. The finding that one GP visit a month was required was based on the evidence of Ms. Walsh’s general practitioner, and as such could not be interfered with.
Aids and Appliances
42. The trial judge carefully examined and gave detailed consideration to the respondent’s future needs for each of the aids, appliances and adaptations proposed by her occupational therapist. The sums he allowed were all to be found in the evidence. The trial judge was entitled to prefer the evidence tendered on behalf of the respondent to that which had been advanced by the appellant. It was clear from his judgment that he had not allowed such claims as he considered were not justified.
43. As to the appellant’s complaint that the trial judge allowed the respondent the future cost of items of equipment which she was not using and had instanced a trolley and a perching stool, the respondent’s occupational therapist had given evidence that just because the trolley and perching stool may not have been used by Ms. Walsh during the visit from the appellant’s occupational therapist, it could not be said that these items of equipment were not needed. The equipment would likely be required in the future for tasks that had not been undertaken on that specific day. As to all of the other items allowed by the trial judge in his costing including, for example, a bidet, a particular type of oven, hob and dishwasher, and certain building works to the value of €12,000, there was evidence upon which the trial judge was entitled to find that these items were required. As to items which would commonly be purchased by people for their own home such as a freezer, dishwasher and mattress, in each instance the trial judge had allowed the claim on a once off basis to meet the health and safety requirements of the respondent.
The jurisdiction of the appellate court
44. There is no dispute between the parties concerning the jurisdiction enjoyed by an appellate court when asked to overturn or interfere with the findings of the original trial judge at first instance. The restrictions on the appellate court are best described by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 when he stated as follows:-
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes L.J. in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v. Macken [1899] 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
4. A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.
45. Accordingly, it is important that an appellate court does not take it upon itself to re-engage with the evidence available to it via the transcript and come to its conclusions as to its preferred view on the outcome of the proceedings. It is not for the appellant court to weigh the evidence of one party against that of the other. That is the privilege solely enjoyed by the judge at first instance. Accordingly, once there is any credible evidence to support a finding of fact this court is not entitled to interfere with it.
General
46. I will now consider in turn the submissions advanced on behalf of the appellant in support of its claim that this court should reduce each of the separate awards of damages made by the trial judge. However, insofar as the appellant seeks to argue that each such award should be set aside on the basis that the trial judge erred in law in calculating the respondent’s loss based on an impermissible RRR, I will deal with that overall submission after I have dealt with the other arguments advanced in support of the appellant’s appeal.
Decision in respect of general damages
47. An appellate court only enjoys the jurisdiction to interfere with an award of general damages if it is satisfied that no reasonable proportion exists between the sum awarded by the trial judge and what the appellate court itself considers would be an appropriate award, having regard to the injuries sustained. In making that assessment the appellate court must keep in mind that it has not had the advantage of seeing the witnesses and in particular hearing and seeing the plaintiff give evidence: see Foley v. Thermocement Products Ltd (1954) 88 I.L.T.R. 92. It is for this reason that an appellate court should not readily make relatively modest alterations to an award of damages made at first instance. It should only interfere when it considers that the sum awarded was erroneous to the point that it should be viewed as an error of law: see Rossiter v. Dún Laoghaire Rathdown County Council, per Fennelly J.. The rule of thumb advocated by McCarthy J. in Reddy v. Bates suggests that unless the award made departs from the court’s own view of the value of damages by 25% or more, the appellate court ought not interfere. This is because the appellate court is operating at a disadvantage in assessing the effect of the injuries on a plaintiff as it does not have the opportunity of seeing and hearing the witnesses and must operate from what has been described as the dry and arid pages of a transcript. It is important also that the award made can be stated to be proportionate to the injuries sustained by the plaintiff and can be seen as proportionate when placed within the scheme of awards for personal injuries: see generally, M.N. v. S.M. [2005] IESC 17 per Denham J. and the decision of this Court in Nolan v. Wirenski [2006] IECA 93.
48. Having considered the submissions advanced by the parties and the evidence available to the High Court judge, I am fully satisfied that the awards which he made in respect of pain and suffering to date and pain and suffering into the future are proportionate to the injuries sustained by the plaintiff and are also proportionate, just and fair when viewed in the context of awards of general damages made to litigants who have suffered lesser or substantially more significant injuries than those inflicted on Ms. Walsh.
49. At the time of the events the subject matter of this claim Ms. Walsh was a highly energetic mother and wife who enjoyed life to the full. She was in robust good health and participated in a wide range of sporting and leisure activities. She was fit to the point that she was participating in mini triathlons. She enjoyed cycling and dancing and, in particular, horse riding. She had the energy to assist her husband breeding, breaking and training horses. She carried out a wide range of physically demanding activities on the stud farm yet managed to engage fully with the demands of parenthood. As a result of her fall her life changed overnight and she became a woman afflicted by significant disability.
50. For all of the three years prior to the trial Ms. Walsh suffered from significant pain principally caused by the injury to her back. In order to overcome that pain and to improve her functionality she undertook a wide range of treatments and interventions. She had regular injections and spinal blocks. She underwent spinal injury in February 2003 to remove a disc fragment from her lower back. This was unsuccessful. Following an unsuccessful eight week rehabilitative programme in 2014 Ms. Walsh ultimately had a spinal cord stimulator inserted in February of 2015. Over the same period she was diagnosed with what has been described as cauda equina syndrome. The result of this condition is that she lost sensation in the perineal area with the result that her ability to enjoy sexual intimacy was brought to an end with consequential adverse effects for her personal relationship with her husband.
51. Over the same period she was diagnosed with nerve damage such that function to her bladder became impaired. Her inability to empty her bladder resulted in the need to self catheterize three times a day and she was doing this for in excess of two years prior to the trial. That self catheterisation had diminished and restricted Ms. Walsh’s quality of life in the manner described by the trial judge in his judgment. Everywhere she went, she had to bring with her a supply of pads and wipes added to which she was restricted in both her functional and social activities.
52. Finally, during all of the period prior to trial Ms. Walsh had had to cope with the physiological consequences of the change in her physical condition brought about by her injuries. The trial judge accepted that she developed post traumatic stress disorder, an adjustment disorder and also a grief reaction to her injuries. To enable her cope she was put on anti depressive medication and required counselling.
53. Taking all of these factors into account it simply cannot be argued with any cogency that the award of €135,000 for pain and suffering to the date of trial was excessive or disproportionate.
54. As to the award made by the trial judge in respect of damages for pain and suffering into the future, it is unnecessary to re-visit in any great detail what the trial judge considered the future would hold for the plaintiff. The evidence was stark as to her likely prognosis. As of the date of trial Ms. Walsh was forty eight years of age. But for her injuries she looked forward to perhaps thirty or more years of good health during which she might hope to enjoy a seriously good quality of life. She had hoped to return to the work place, to continue assisting her husband with their stud farm and enjoy all of the benefits of marriage and family life. All that is now changed. As is clear from the findings of fact made by the trial judge, Ms. Walsh will require ongoing medical intervention and she is unlikely ever to be pain free. Pain will be kept at a manageable level by the use of a spinal stimulator which will need to be periodically replaced in future years. She will also carry the scar which is the result of the initial surgical procedure to insert the stimulator. Ms. Walsh will also likely require rhizotomies every nine to twelve months. For the rest of her life she will have to self catheterise three times a day and endure all of the resulting complications and restrictions. She is to obtain no enjoyment and emotional fulfilment from such sexual intimacy as she would otherwise have enjoyed with her husband in future years. The trial judge also accepted that Ms. Walsh will continue to suffer from significant psychological problems as a result of her physical injuries, and that she will require ongoing counselling throughout her life to help her cope.
55. It is clear from the judgment of the trial judge that he was satisfied that the respondent’s injuries would impact on every aspect of her life. Having regard to the number of years ahead of her, and to what she has lost, it cannot be said that the award of damages in the sum of €135,000 in respect of pain and suffering into the future is disproportionately large.
56. In coming to my conclusion that the overall award made by the trial judge in respect of general damages is well within the appropriate range for what can only be described as a serious life long injury, I have considered the submissions advanced by the appellant based upon the guidance to be found in the book of quantum. However, as in many of the more complex personal injuries cases, the book of quantum is only of limited value in a complex case of this kind. This is particularly so where a plaintiff sustains injuries which fall into a number of categories. In the present case the respondent sustained an acute injury to her back with life long consequential effects for not only the functioning of her back but of her bladder. To this must be added the grave psychological consequences which flow indirectly from her physical injuries. Thus, this is not a case which falls neatly within the confines of any particular injury within the book of quantum. The totality of the injuries must be considered and the overall figure awarded must be just and proportionate in that regard.
57. As to the submission that the trial judge in making his award for damages for future pain and suffering, failed to have regard to the fact that the level of pain originally experienced by Ms. Walsh had been reduced by the spinal stimulator, with the result that his award of €135,000 was excessive to the point that it should be set aside, that is a submission that I roundly reject. First, the evidence was that while her pain had been reduced by 50% – 80% she has nonetheless been left with pain that requires significant ongoing daily medication, the use of the spinal cord stimulator, nerve root injections and occasional rhizotomies. Second, the fact that she has had a reduction in back pain, does not disturb her evidence and that of her experts as to the gross limitation her back injury has placed on her life in general, e.g., the loss of all of her sporting activities, the fact that she has an ataxic gait and the need to use a walking stick to support her participation in certain activities. I am quite satisfied that the award made by the trial judge is not inconsistent in any way with the evidence concerning the improvement in the plaintiff’s level of pain post the insertion of the spinal stimulator.
58. I also reject the submission that the award made by the trial judge in respect of damages for pain and suffering into the future is excessive by reason of the evidence as to Ms. Walsh’s performance on what is described as the Barthel ADL index test, a test in which she scored 16/20. The relevance of the test, as is clear from the evidence, is to establish whether an individual is capable of independent living and what assistance they may need in terms of equipment or otherwise, to allow them remain independent. Ms. Walsh never made the case that she was incapable of independent living. The case she made was that her activities were curtailed and her life permanently and irrevocably changed. The fact that the evidence was that, notwithstanding injuries, she is capable of living independently albeit with significant supports in terms of aids appliances and future medical treatment, in no way diminishes the significance and severity of the injuries earlier described.
59. The trial judge was also entitled to take into account and find as a fact that she recovered from the injury to back in 2008 with the effect that it was not relevant to the assessment of general damages in the case. That was a finding of fact he was entitled to make on the evidence.
60. For the aforementioned reasons I am satisfied that the award made in respect of general damages to date and for general damages into the future are fair and just to both parties and represent a proportionate response to the respondent’s injuries.
The management of the trial
61. It is undoubtedly true to say that justice is best served in a personal injuries action by the evidence of the plaintiff being heard in full before any other witness/witnesses are called. Ideally all other witnesses as to fact should then be called and only thereafter should the expert witnesses give their evidence. However, it has to be accepted that the manner in which cases are listed and called on for hearing in the High Court make it impossible to predict the precise date upon which some particular witness will be required. Expert witnesses, particularly treating doctors and consultants, have lengthy lists to attend to and cannot, in fairness to their patients, cancel these lists and wait in court for a day or possibly more so that they might take their appropriate place in the queue of witnesses. These realities have led to a situation where the parties to litigation invariably agree that witnesses can be interposed out of turn. If the result is some prejudice to one or other party, that can normally be overcome by recalling witnesses. It should be said that it is rare that any real prejudice arises as a result of this give and take, particularly in circumstances were the exchange of expert reports usually means that a witness can be cross examined on evidence which, from the reports, it can be assumed will be given later in the trial.
62. In my view, significant deference must be afforded to decisions made by a trial judges such as those which permit a witness or witnesses to be interposed where he or she considers the same necessary to ensure that the litigation is conducted in an efficient manner. Unless it can be demonstrated that such a decision has put justice to the hazard and has led to an unfair an appellate court should not interfere with that type of decision.
63. In the present case the appellant has not been able to demonstrate any real prejudice arising out of the fact that two of the respondent’s expert witnesses were called, prior to the conclusion of her own evidence. While it is stated that the appellant lost the possibility of putting to the respondent’s experts concessions that she made in the course of her own evidence, the concessions were so modest, one being her ability to do a girth of her daughter’s horse, that the submission that the court should order a new trial is simply untenable.
Loss of Earnings
64. The first complaint made by the appellant is in respect of the sum awarded by the trial judge in respect of “Loss of earnings for two years” is accepted by the respondent. It is agreed that the award of €20,000 under this head of loss must be deducted from the overall award as it represents double recovery.
65. The second complaint made by the appellant is that the trial judge failed to reduce the award which he made in respect of future loss of earnings to reflect what the appellant contends was the evidence to support the respondent having some future income generating capacity.
66. This submission is one which, in my view, is defeated by the principles long since established in Hay v. O’Grady. Unless it can be established that there was no evidence which could have justified the High Court judge taking the view which he did, which was that Ms. Walsh was unlikely to be in a position to obtain remunerative employment into the future, this ground of appeal must fail, regardless of the weight which the appellant suggests the court should have attached to its evidence. There was clearly sufficient evidence as to the respondent’s ongoing medical problems to justify his conclusion that she would not re-enter the work market. The fact that there was evidence that Ms. Walsh was able to carry administrative work at home for their own business was not inconsistent with the conclusion of the trial judge that she was unlikely to be employed in that capacity by anybody else. I am quite satisfied that the decision of the trial judge not to afford Ms. Walsh any future income generating capacity was amply supported not only by the medical evidence but by the evidence of her rehabilitation and employment consultant, Ms. Anne Doherty, who considered it unlikely that she could return to any remunerative employment.
67. As to the submission made that the trial judge erred in law in his failure to make any deduction from his award in respect of future loss of earnings for the exigencies of life as referred to in Reddy v. Bates, that I fully accept.
68. While the trial judge was entitled to take a very optimistic view of the work market that would likely have been available to Ms. Walsh had she not been injured and thus to conclude that work would always have been available to her, what he failed to take into account is that for reasons completely unrelated to the work market, she may not have been in a position to avail of that work.
69. The reasons why a well motivated person may find themselves not working continuously or full time into the future are too numerous to mention. However, by way of example, they might be injured in a road traffic accident with the result that they cannot work or they might fall prey to some illness with similar unfortunate consequences. Their husband, partner, one of their children or an elderly relative might, for some period of time, need their care and support such that they would not be able to work or work fulltime as they had hoped. As people advance in life the risk of these occurrences cannot be ignored or ruled out. Nobody is immune from such risks. Nobody can say with certainty that they will be able to work continuously for the following eighteen year period, that being the duration of Ms. Walsh’s claim for future loss of earnings in these proceedings.
70. In these circumstances, having regard to the prevailing jurisprudence, I must conclude that the trial judge erred in law when he failed to discount the figure which he considered proved in respect of future loss of earnings to take into account the factors outlined in Reddy v Bates. In circumstances where the trial judge clearly took an optimistic view as to the market which would otherwise have been available to the plaintiff, I consider that the reduction to be made should be at the lower end of the parameters often applied by the court and I would propose a reduction of 15% having regard to the overall findings of fact made by the trial judge.
Urology costs
71. It goes without saying that in order for a court to interfere with any award made by the trial judge in respect of any item of future special damage the onus is on the appellant to demonstrate that there was no credible evidence to support the sum so awarded.
72. Having considered the appellant’s submission, I am satisfied that the trial judge erred in law and in fact when he included within the sum allowed in respect of “future urology costs” a sum to reflect the future cost of the equipment required by Ms. Walsh for daily self catheterisation. In his submissions counsel for the respondent could not dispute that the evidence established that this equipment would be covered by the Drug Repayment Scheme. That being so, in circumstances where the trial judge allowed in full the capital cost of €144 per month, that being the full extent of Ms. Walsh’s future liability in respect of the cost of her medication and equipment under the Drug Repayment Scheme, the award must be reduced by the additional sum which the trial judge allowed under this heading. For the purposes of clarity the annual cost of the equipment for the purposes of any such calculation is €3,600 per annum.
73. What is clear from paras 178 and 179 of his judgment is that the trial judge concluded that Ms. Walsh would have to expend €3,600 per annum on the equipment for catheters and that she would face additional charges of €900 per annum, in accordance with Dr. O’Sullivan’s evidence concerning her need for ongoing ultrasound and other examinations. The capital costs allowed in respect of the catheters must be deducted in accordance with the calculation used by the trial judge. He took the overall annual cost at €4,500 per annum and using the multiplier of 29.5 on an assumed RRR of 1.5% made a total award of €132,750. Excluding that element of the claim which relates to catheters (€106,200), the total award under this heading should in fact be only €26,550.
Home help
74. The defendant seeks to challenge the award of €29,000 in respect of the cost of the past home help/care which he concluded had been required by Ms. Walsh as a result of her injuries. Much of that care/ help was needed because she was not in a position to do heavy domestic work such as hovering, changing beds and heavy cleaning. This work was done by her mother-in-law, husband, family and friends.
75. It should be said that the only dispute between the parties in the court below appears to have been as to the number of hours work that Ms. Walsh had reasonably prevailed upon friends and family to carry out as a result of her incapacity up to the date of trial. Ms. Walsh’s expert advised eight hours and the appellant’s witness seven hours.
76. While the appellant now seeks to argue that the trial judge impermissibly valued this aspect of Ms. Walsh’s claim by reference to commercial rates that argument does not appear to have been pursued in the High Court. In this regard it is to be noted that Ms. Sabrina O’Carroll, the appellants nursing consultant, valued the respondent’s claim on the basis of prevailing commercial rates.
77. It is true to say that the law is not clearly settled as to whether a plaintiff who is cared for through gratuitous services provided by their family and friends, is entitled to recoup at commercial rates, what that help would have cost them had they had to buy it in. What is clear nonetheless, is that there is no authority which would condemn the approach taken by the trial judge. His approach is consistent with that of Quirke J in Yun v. MIBI and Tao [2009] IEHC 318, a case in which he remunerated the plaintiff’s boyfriend who had provided her with comprehensive care on the basis of commercial rates. That being so and the absence of the appellant being able to point to any specific facts in this case which would bring this case outside the rubric of that decision, I would reject this ground of appeal.
78. As is clear from the submissions recorded earlier in this judgment in respect of the award for “future home help”, the only sustainable argument that the appellant can pursue is based upon establishing that the award was excessive, in circumstances were his calculation was based upon a multiplier which assumed a RRR on investment income of 1%. As already noted the appellant valued the capital cost of the plaintiff’s claim for future care in the sum of €95,937. That was a figure achieved using a RRR of 3%. It is accepted that if a RRR of 1.5% were to be applied to the claim is calculated by the appellant it would have resulted in an award of €116,000, and that accordingly, it cannot be said that there is any basis for interfering with the award unless it be established that a 3% RRR was warranted in respect of this head of claim.
Miscellaneous Future Expenses
79. The trial judge made an award of €192,882 in respect of the capital cost required to meet the plaintiff’s future costs of:
(i) replacing her spinal cord stimulator;
(ii) rhizotomy procedures;
(iii) GP visits;
(iv) physiotherapy;
(v) blood testing, and
(vi) counselling.
80. As for the appellant’s submission that the award of the trial judge was impermissible because it failed to reflect any discount to reflect the appellant’s challenge to the evidence presented on behalf of Ms. Walsh in respect of these heads of claim, that argument cannot succeed by reason of the restraint placed upon an appellate court as per Hay v. O’Grady. It is clear that the award made by the trial judge is supported by the respondent’s evidence in relation to each of the six component elements which go to make up his award of €192,882. An appellate court cannot second guess why a trial judge may have preferred in its entirety the evidence of Ms. Walsh’s witnesses over those of the appellant. The evidence clearly supported the claim for the cost of twelve visits to Dr. Ellis each year, regardless of any other medical issues she might have.
81. I do, however, accept the appellant’s submission that the foundation for the claim of the cost of two rhizotomy procedures per year was not made out. The evidence of Dr. Paul Murphy, Ms. Walsh’s pain specialist, was that she would need such a procedure every nine to twelve months on average. Whilst Prof. Harmon mentioned the possibility of Dr. Murphy carrying out two to three such procedures per year, his evidence was based on what he had been told by Ms. Walsh as to Dr. Murphy’s intentions in terms of future treatment. Given that the height of Dr. Murphy’s evidence was that Ms. Walsh would require a rhizotomy every nine months, I consider that the award should be adjusted to reflect that fact. I would propose, therefore, that the sum awarded under this heading should be reduced by one quarter, such that the €70,912 becomes €53,169.
Aids and appliances
82. The trial judge made an award of €239,846 in respect of the cost of the future aids and appliances that would be required by Ms. Walsh, by reason of her injuries. He noted at para. 189 of his judgment the large discrepancy between the figure sought by the respondent, namely €232,640 (based on a 1.5% RRR) and €80,527 proposed by the appellant (based on a RRR of 3%).
83. Having considered the written and oral submissions of the parties, I am not satisfied that the appellant has demonstrated that the sum awarded by the trial judge under this head of loss is unsupported by credible evidence.
84. First, the trial judge is to be commended for the careful manner in which he approached this very large aspect of the claim. He went individually through each item of equipment claimed where the appellant either disputed the need for it or its cost.
85. I reject the submission that the proper approach for the trial judge to this aspect of Ms. Walsh’s claim was to consider the list of aids and appliances and then determine which of those items a “reasonable individual” who has what the appellant describes as an “appropriate level of resources” would purchase out of their own funds to ease their comfort if afflicted by the plaintiff’s injuries. That is never been the basis upon which the court has assessed such claims. The court invariably hears expert testimony from an occupational therapist on behalf of both the plaintiff and defendant as to whether, in their professional opinion the aids and appliances are required to meet the welfare, safety and comfort of the plaintiff having regard to the injuries. Accordingly, I am satisfied that the approach adopted by the trial judge in this case was entirely consistent with how the courts for decades have approached claims for special damages for plaintiffs who have suffered life changing injuries.
86. The purpose of an award of damages is to place the plaintiff in a position as close as is practicable to that which they would have enjoyed but for the defendant’s wrongdoing. If a plaintiff proves through expert testimony that their life would be closer to that which they would otherwise have enjoyed but for their injuries by having available to them such items as may be advised by their occupational therapist, then that is her entitlement. The fact that, absent their entitlement to recover the cost of those items from the defendant, they might not have purchased them for themselves is irrelevant. It is inevitable that the purchase by someone such as Ms. Walsh of aids and appliances such as those involved in the present case from her own funds would significantly diminish the resources available to her to meet other financial demands. Take, for example, the future costs to be incurred on her children’s education, extracurricular activities and health insurance to mention but a few. When faced with the choice of promoting their own health over the needs of their children, I venture to suggest that most parents would skimp on their own care and would deprive themselves of equipment that might significantly improve their quality of life. If compensation were to be awarded on the basis proposed by the appellant, plaintiffs would not receive full compensation for their injuries. Accordingly, I reject this submission.
87. It is for the appellant to demonstrate that the trial judge allowed a number of claims which were unsupported by any credible evidence. While in its submissions the appellant states that the trial judge should not have allowed Ms. Walsh’s future claim for the costs of a trolley and a perching stool, because those had already been provided and were not used, the evidence does not support that contention. The evidence led by Ms. Walsh was that whilst these items were not used on the day the appellant’s occupational therapist carried out her inspection, that this did not mean that they were not required for use on other occasions. As to the submission that the trial judge should not have allowed for the cost of items such as a stand-up fridge, or under counter dishwasher, because these were items which a householder might reasonably be expected to purchase for themselves, Ms. Walsh’s occupational therapist gave evidence that these items were claimed on a once off basis because, for health and safety reasons, Ms. Walsh needed to change the equipment she had to that which was more suitable having regard to her injuries. Thus, it cannot be said that there was not credible evidence to support the sums allowed in respect of such items.
88. While it is true to say that the trial judge included within the sum allowed the cost of providing Ms. Walsh with an electric scooter, and that she stated that she wanted to persevere without it, even the defendant’s expert appeared to be of the view that the she ought to have and available of such a scooter. That being so, I am satisfied that there was sufficient evidence to justify the trial judge taking the view that, if he allowed her the cost of the scooter, Ms. Walsh might well use it to attend horse shows and like events. That being so he was entitled to allow her the cost of portable telescopic ramps which would be required to permit her cope with small variations in the height of various floor surfaces.
89. For the aforementioned reasons, I am not satisfied that the appellant has demonstrated any clear basis upon which this court could legitimately interfere with the award made by the trial judge under this head of claim.
The RRR assumed by the trial judge
90. On the basis of the submissions earlier identified in this judgment, the appellant submits that the trial judge erred in law and in fact when he failed to apply, when calculating the plaintiff’s claim for future pecuniary loss, the decision of Finnegan P. in Boyne v. Dublin Bus in which it was held, inter alia, that having regard to the circumstances of that case and the prevailing economic and investment conditions, the court should assume a 3% RRR on investment income for the purposes of calculating that loss.
91. In order to consider the validity of that submission it is perhaps of some value to reflect briefly upon the objective of the trial judge when faced with a claim for a capital sum to reflect one or more heads of future pecuniary loss. This is how that exercise was described by Lord Oliver in Hodgson v. Trapp [1989] AC 807, 826:
“Essentially, what the Court has to do is to calculate as best it can the sum of money which will, on the one hand, be adequate, by its capital and income, to provide annually for the injured person a sum equal to his estimated annual loss over the whole of the period during which that loss is likely to continue, but which, on the other hand, will not at the end of that period, leave him in a better financial position than he would have been apart from the accident..”
92. It goes without saying that when considering a claim for future pecuniary loss any court must seek to ensure that sum awarded when invested will be sufficient to provide the plaintiff with the funds they would have had but for the defendant’s negligence and/or, as in the present case, with the cost of meeting their tortuously inflicted future needs despite the likely impact of inflation on their award over the period of the loss. If a plaintiff is not so protected, he or she will not receive full compensation, as is their lawful entitlement.
93. It is next important to reflect upon the approach of the courts in recent times to claims for pecuniary loss and, in particular, to consider the assumptions made as to the type of investor a plaintiff ought to be considered to be for the purpose of predicting the likely RRR on the investment of any lump sum to be awarded under this heading.
94. In Boyne, the plaintiff, a 28 year old man, received injuries which rendered him permanently incapacitated in terms of work. Finnegan P., in determining the appropriate RRR to be assumed for the purpose of selecting the multiplier to be used in the calculation of his claim for future loss of earnings, concluded that he should treat him as a prudent investor. He expressed himself satisfied that the prudent investor would invest such a sum in a mixed portfolio comprising 70% equities and 30% gilts, a split which he acknowledged might not be appropriate in every case given that the amount to be invested in equities would necessarily be determined by the duration of the fund. On that basis, the court could assume a RRR on investment income of 3% per annum
95. It should be stated that in the course of his judgment in Boyne Finnegan P. noted that there were no securities available within this jurisdiction that were equivalent to the Index Linked Government Stock (ILGS) then available in the U.K., a factor which was central to the decision of the House of Lords in Wells v. Wells [1999] 1 AC 345 where the House of Lords unanimously decided that the plaintiffs were entitled to have their claims for future pecuniary loss calculated based upon the RRR they would likely achieve if their awards were invested in risk adverse U.K. ILGS.
96. Thus, from the date of the decision in Boyne up to the time of the decision of the High Court in Russell, the courts in this jurisdiction proceeded to calculate awards in respect of future pecuniary loss on the basis that the plaintiff should be assumed to be capable of obtaining a RRR of 3% per annum on any capital sum awarded in respect of future pecuniary loss.
97. As was stated by this Court in Russell, there are obvious and easily recognisable problems with the court adopting a “one size fits all” RRR to all claims for pecuniary loss regardless of the amount which will be available for investment following the court’s award, the period over which it will likely be invested and the extent to which a plaintiff may need to access the fund so invested to meet their ongoing needs. The RRR on the investment of a modest sum for a short duration is unlikely to match the RRR achievable where the sum to be invested is extremely large and where access to the greater part of that fund may not be required for many years or perhaps a decade or more. However, to do otherwise would be to impose an entirely unacceptable burden on litigants and create additional and unwarranted demands upon the scarce resources of the court itself. If the plaintiff in every case had to lay the evidential foundation for establishing the likely RRR to be applied having regard to the individual circumstances of their case, additional expert witnesses would have to be called by both sides with the result that cases would become even more protracted than they are at present and with the result of greatly increasing the overall legal costs bill to the unsuccessful party.
98. That said, from the time of the court’s decision in Boyne, plaintiffs with claims for future pecuniary loss invariably took the pragmatic and practical approach of advancing their claims based upon an assumed RRR of 3% and the courts, for equally pragmatic reasons, settled upon the practice of calculating such claims on that basis. There was no question of the parties calling economists or investment analysts to give evidence as to the appropriate RRR to be applied in their particular case. It was assumed by all concerned that the legal considerations and the economic climate which had led the trial judge in Boyne to assume a RRR of 3%, namely that the plaintiff should be treated as a prudent investor who would likely invest such a fund in a portfolio comprising 70% equities and 30% gilts, should be applied to all claims for future pecuniary loss.
99. Notwithstanding the decision in Boyne, it of course remained the entitlement of any plaintiff to seek to argue that the court should assume a lesser RRR than 3% having regard to the individual circumstances of their claim. However, this did not happen for well over a decade during which period it became common practice for parties to content themselves with procuring expert reports to support what they maintained was the annual sum which the plaintiff would require to meet each head of claim. Thereafter they engaged actuaries to capitalise the total value of such claims based on an assumed RRR of 3%.
100. Such was the position that pertained until the plaintiff in Russell decided to pursue his claim for pecuniary loss, contending that the RRR as advised in Boyne, if assumed for the purpose of calculating the capital sum required to meet the annual sum required by him in respect of his various needs, would leave him substantially short of the 100% compensation to which he was entitled. He maintained that a RRR of 3% was unduly optimistic. He argued, in line with the decision of the House of Lords in Wells that he should not be expected to invest his award in the same way as a prudent investor who was not dependant upon the monies so invested to meet their ongoing needs. He should not be required to take unacceptable investment risks including the risk of investing in a mixed portfolio of gilts and equities of the type deemed acceptable in Boyne.
101. The facts in Russell were that at the time of his birth, the plaintiff sustained catastrophic injuries. These left him quadriplegic with the result that he required life long care and the support of a vast array of technical equipment, aids and appliances. In the High Court, Cross J. concluded that the appropriate RRR to be used when calculating all categories of claim for future pecuniary loss was 1.5% with the exception of his claim for future care which was to be calculated on the basis of an assumed RRR of 1%. That lesser assumed rate of return was to render inflation proof any capital sum awarded in respect of future care in circumstances where the expert evidence anticipated that wage inflation would exceed general inflation for the foreseeable future thus leading to an anticipated increase in the rates of pay of those in the health care sector.
102. In the High Court Cross J. was satisfied, in line with the decision of the House of Lords in Wells that the plaintiff was not to be treated as an ordinary “prudent investor” when it came to determining the likely RRR he might obtain on the investment of his lump sum. He stated that what was prudent for this plaintiff was different from that which would be prudent for other investors and possibly other plaintiffs. This was because the funds to be invested were principally required for his essential future care rather than to meet any other type of pecuniary loss. Prudence required that the RRR be determined having regard to his right to invest his award in the most risk adverse manner possible and, in his view, this was in Eurozone ILGS, which had become available since the decision in Boyne.
103. It is true to say that the High Court judge contrasted the plaintiff’s position in Russell not only with that of the prudent investor as had been accepted as valid by Finnegan P. in Boyne, but also with the position that might pertain for another plaintiff whose claim for future pecuniary loss was in respect of some diminution in their earning capacity, a matter to which I will later return (my emphasis).
104. This Court in its judgment in Russell expressed itself satisfied that Finnegan P. was wrong in Boyne when he concluded that relevant to the consideration of the appropriate multiplier was the plaintiff’s obligation to mitigate his loss by reference to the manner in which he, as a prudent investor, might invest his award. In coming to its conclusion the Court noted that Finnegan P. had followed the line of argument that had been adopted by the English Court of Appeal in Wells. However, the House of Lords had unanimously rejected that approach on the basis that it was unreasonable to expect the plaintiffs (of whom there were three) to gamble their compensation on the equities market. In this regard it is important to record that the Law Lords did not distinguish one type of plaintiff from another when considering the risk they might be expected to absorb when investing their award. They distinguished the position of the injured plaintiff who must invest to provide the sum necessarily required each year to meet their needs from the position of the ordinary prudent investor who has surplus funds available to invest. The following is what Lord Steyn stated at p. 368, of his judgment in Wells where he contrasted the position of the plaintiffs in those three cases to the position of the ordinary investor:-
“On the other hand, the typical plaintiff requires the return from an award of damages to provide the necessities of life. For such a plaintiff it is not possible to cut back on medical and nursing care as well as other essential services. His objective must be to ensure that the damages awarded do not run out. It is money that he cannot afford to lose. The ordinary investor does not have the same concerns. It is therefore unrealistic to treat such a plaintiff as an ordinary investor. It seems to me entirely reasonable for such a plaintiff to be cautious and conservative. He does not have the freedom of choice available to the ordinary investor. If a comparison is to be made — and in this field all comparisons are inexact — the position of the plaintiffs is much closer to that of elderly, retired individuals who have limited savings which they want to invest safely to provide for their declining years. Such individuals would generally not invest in equities. But for plaintiffs the need for safety may often be more compelling.”
105. What is clear from the decision of this court in Russell that it was satisfied that Finnegan P. in Boyne had approached his consideration of the RRR to be assumed on an incorrect premise, namely that he should treat the plaintiff who had lost all of his future income generating capacity at 28 years of age, as a prudent investor. Thus he was drawn away from a consideration of any more risk adverse investment alternatives than the mixed portfolio laden with 70% equities that he ultimately endorsed.
106. In Russell, having regard to the extensive expert evidence adduced before the High Court, this Court recognised, inter alia, the risks for plaintiffs if they were to be expected to follow a strategy which involved the investment of their award for pecuniary loss in a portfolio containing any significant percentage of equities, as had been deemed acceptable in Boyne. It noted the evidence concerning the manner in which share values rise and fall with extreme unpredictability and as to the crucial importance of timing when it comes to sale. A plaintiff requiring access to funds on an ongoing basis might have no option but to sell when the share price is depressed and might not be able to sit out a dip as might prove possible for the ordinary investor. For this reason, amongst many other economic considerations that need not be repeated here concerning likely inflation rates and the likely performance of various different investments in the foreseeable future, this Court agreed with the conclusion of Cross J. that the RRR to be assumed when calculating claims for future pecuniary loss ought to be assessed on the basis that the plaintiff was entitled to adopt the most risk free and inflation proof strategy consistent with his needs. In that case the investment strategy was one to be based on the RRR the plaintiff would likely achieve if his award was to be invested in Eurozone I LGS over the period of his loss.
107. I find it difficult to see how, in light of the Court’s conclusions in Russell where the approach taken in Boyne to the investment risk expected to be absorbed by a plaintiff who requires a stream of funding to meet their ongoing needs was rejected, the appellant can maintain that the High Court judge erred in law in failing to follow Boyne when it came to determining the RRR to be assumed for the purposes of his calculations. To have calculated Ms. Walsh’s claim for future pecuniary loss on the basis of a RRR of 3%, the trial judge would have to have been satisfied that her circumstances were wholly distinguishable from those of the plaintiff in Russell. He would have to have been able to treat her as an investor with the capacity to absorb the type of risks required to achieve a RRR of 3% per annum on the investment of their award. At the very least, he would have to have had evidence to satisfy him that all of Ms. Walsh’s future needs could be met without recourse to the sum awarded such that it could be invested in the type of high yield portfolio considered unacceptable in Russell.
108. While it is true to say that Ms. Walsh was not nearly as significantly injured as the plaintiff in Russell and that she is capable of independent living, I see no basis upon which Barr J. could realistically have distinguished her case so as to depart from the overall guidance given in Russell concerning the RRR to be assumed when calculating claims for future pecuniary loss. He was charged with calculating the annual sum required to compensate Ms. Walsh for being unable to work for a period of eighteen years as well as the annual sum required by her to fund her ongoing needs in terms of equipment, medical treatment and care for life.
109. The defendant has pointed to no evidence to demonstrate how the trial judge could, having regard to the stream of income denied Ms. Walsh by reason of her injuries and that required by her to meet her ongoing needs, have lawfully calculated her claims for pecuniary loss based on a RRR greater than 1.5%. If he had done so he would have placed her in a position whereby, in order to meet the annual loss found by the court and her ongoing needs, she would have to accept the type of investment risk of the type condemned as unsuitable in Russell.
110. It follows that I am satisfied that in order to come to the decision which he did, it was not necessary for the trial judge to hear any evidence from economists or investment analysts. He was entitled to adopt the same approach as his High Court colleagues had done following the decision in Boyne when they assumed that until further challenge the court should assume a 3% RRR on all claims for future financial loss until otherwise challenged and some other case, as occurred in Russell.
111. In light of the decision of this court in Russell, there are good policy reasons as to why when calculating claims for future pecuniary loss the court should assume a 1.5% RRR on investment income for all categories of future financial loss and a 1% RRR in respect for future care, without requiring the court to hear any evidence from economists or investment analysts. An actuary should suffice. Knowing that the court will calculate future pecuniary loss on such a basis is important in terms of ensuring the consistency of awards. This in turn makes litigation more predictable and capable of resolution by agreement. To require the plaintiff, as submitted by the defendant in this appeal, to call economic experts to support Ms. Walsh’s entitlement to have her future pecuniary loss calculated on the basis of the RRR advised in Russell, would – as I have already had occasion to point out – have very significant adverse consequences for the administration of justice. It would lead to a huge increase in the costs of any case wherein a claim for pecuniary loss was made. Not only would the parties incur the costs of retaining additional financial experts, but the likely duration of the trial would also be significantly extended with adverse costs implications for the losing party apart altogether from the additional demands that any such approach would make on the already scarce resources of the court itself.
112. While a plaintiff with claims for future pecuniary loss, such as those which arise for Ms. Walsh by reason of her injuries, should accordingly customarily be entitled to have any such losses calculated on the basis of an assumed RRR of 1.5% save for future care where the assumed RRR should be 1%, it remains open to either party in any case to contend that the claim for future pecuniary loss should be calculated by reference to a lesser or greater assumed RRR. That financial markets, investment products and opportunities will change with time is a matter of certainty. The financial assumptions made when the decision in Russell was handed down may prove, with the benefit of hindsight, to have been overly optimistic or for that matter pessimistic. Periods of boom and bust have always been the order of the day and the stability of the Eurozone and other financial markets may well change as a result of a wide range of ever-changing political and economic factors. So, in the same way as Gill Russell challenged the court’s decision in Boyne to the effect that a plaintiff in his position should have the RRR fixed on the assumption that he should be considered a prudent investor as opposed to a risk averse investor, there is nothing to stop the plaintiff or defendant in any case, whether for legal and/or economic factors, from seeking to contend that that the assumed RRR in their case should deviate from that indicated in Russell.
113. For the aforementioned reasons I have no difficulty in upholding the approach of the trial judge when it came to his calculation of future pecuniary loss using an assumed RRR of 1.5%. However, he appears to have fallen into error when it came to his calculation of the claim for future loss of earnings. This appears to have happened because of the evidence given by Ms. Maura Carter, the plaintiff’s actuary. She was asked if, in preparing a report she had made her calculations in accordance with the court’s decision in Russell, to which she replied in the affirmative. She stated she had valued Ms. Walsh’s claim for future loss of earnings and future care using an assumed RRR of 1% with 1.5% for all other costs. The decision in Russell does not support the use of a RRR of 1% in relation to a claim for future loss of earnings. Accordingly, the trial judge impermissibly awarded a sum of €373,030 based upon a 1% RRR whereas assuming a RRR of 1.5% the capital value of that claim should have been €334,110. A deduction of €38,920 is accordingly required from the overall award.
Conclusions
114. For the reasons earlier indicated in this judgment, I am satisfied that the award made by the trial judge in respect of pain and suffering to date and pain and suffering into the future is proportionate and fair having regard to the plaintiff’s injuries.
115. I am also satisfied that the decision of the trial judge to permit, two expert witnesses be interposed prior to the completion of the plaintiff’s evidence was a decision that he was entitled to make in the lawful exercise of his discretion. In circumstances where the appellant can not demonstrate any real prejudice as a result of this decision, it is not one which an appellate court could entertain.
116. As to the sum awarded in respect of Ms. Walsh’s future urology costs, I am satisfied that the evidence was such that the maximum sum to which she was entitled in respect of this head of loss was €26,550 and that the overall award must be altered so as to reflect that fact.
117. The parties are agreed that the overall award must be reduced by the sum of €20,000 which was allowed under the heading “loss of earnings for two years”, but which is included within another head of claim.
118. I am also satisfied that the evidence of Dr. Murphy, the plaintiff’s pain specialist was such that it was only permissible for the trial judge to allow Ms. Walsh the cost of one rhizotomy procedure every nine months rather than twice a year, as was provided for in his award with the result that €17,723 must be deducted from the sum allowed under the heading of “miscellaneous expenses.”
119. As to the RRR assumed by the High Court judge, for the purposes of calculating the plaintiff’s claim in respect of pecuniary loss, I am satisfied that he did not err in law or in fact when he calculated the plaintiff’s claim for pecuniary loss on the basis of the RRR, as advised in Russell. That said, he impermissibly assumed a RRR of 1% in relation to the loss of earnings claim as opposed to the 1.5% advised in Russell, with the result that the sum so awarded must be reduced in line with the table, hereinafter set forth. However, for the reasons earlier advised, it of course remains open to the parties in any future case to assert, that for the purposes of calculating the plaintiff’s claim for future pecuniary loss, the court should assume different real rates of return to those advised by this court in Russell.
120. For the reasons just stated I would allow the appeal to the limited extent I have already indicated and I would reject all other grounds of appeal.
121. I would therefore propose that the order of the High Court be varied in the manner set out below that the result that the total award to the plaintiff should be €1,256,652:
High Court Varied
General damages for pain and suffering to date: €125,000 €125,000
General damages for pain and suffering into the future: €135,000 €135,000
Past special damages: €110,987 €110,987
Loss of earnings for two years: €20,000 €0
Loss of earnings thereafter: €373,030 €283,993
Future Urology costs: €132,750 €26,550
Future home help: €110,000 €110,000
Miscellaneous expenses: €192,882 €175,159
Aids and appliances: €239,846 €239,846
TOTAL: €1,439,495 €1,206,535.50
Moore v Advanced Tyre Company Ltd t/a ‘Advanced Pitstop
[2017] IECA 10
JUDGMENT of Ms. Justice Irvine delivered on the 31st day of January 2017
1. This is the plaintiff’s appeal against the judgment and order of the High Court (Fullam J.) of 20th October 2015 made in a personal injuries action brought in respect of injuries sustained by her in the course of a road traffic accident on 2nd May 2013. Her appeal concerns the apportionment of liability found by the trial judge, i.e. 85% as against her and 15% against the defendant and also his award of general damages in the sum of €60,000.
Background facts
2. The plaintiff (“Ms. Moore”) was born on 24th September 1957 and was at the relevant time a customer services advisor with the hardware retailer B & Q. The defendant (“Advanced Tyre”) is the owner and occupier of a garage premises located at Swords, Co. Dublin. Mr. Mahon, the driver of the motor vehicle implicated in these proceedings, was an employee of Advanced Tyre.
The High Court hearing
3. Ms. Moore maintained that on 2nd May 2013, immediately prior to the events the subject matter of this claim she was cycling her bicycle along a footpath proximate to the defendant’s premises. She was travelling in the Dublin Swords direction. Roadworks were taking place on the adjacent roadway with the result that the roadway, which customarily accommodated one lane of traffic in either direction, was reduced to one lane for traffic travelling out of Swords in the direction of Dublin. As she approached the premises of Advanced Tyre which was to her left hand side, Mr. Mahon was exiting the car park with a view to joining the aforementioned lane of traffic. He was looking to his left and was, according to Ms. Moore, listening to music with his window open. As he emerged onto the footpath and across her proposed path of travel in one continuous slow movement, she shouted at him to alert him of her approach, but he kept going. Ms. Moore then found herself having to take last minute evasive action which she did by cycling around the bonnet of his car onto the roadway. In the course of this manoeuvre she fell heavily to the ground on her left elbow and sustained serious injuries to which I will later refer.
4. Mr. Mahon on the other hand maintained that Ms. Moore had been cycling on the roadway and that he had seen her as he brought his car to a stop well short of the kerb. He was satisfied that the reason she fell from her bicycle was that the pillows she was carrying on her back carrier had caught the front of his car as she sought to mount the footpath to get out of the way of oncoming traffic.
Judgment of Fullam J.
5. In his ex tempore judgment the trial judge accepted Ms. Moore’s evidence that she had always been cycling on the footpath. It was illogical that she would cycle against the oncoming traffic in circumstances where she would have to escape to the safety of the footpath every time a motorist advanced in her direction. He also found that Ms. Moore had been cycling at a jogging pace as events unfolded. In his judgment, the trial judge expressed himself satisfied that Mr. Mahon had indeed seen Ms. Moore as he exited the defendant’s premises but had nonetheless emerged onto the footpath without looking to his right i.e. in her direction.
6. As a matter of law the trial judge concluded that the “primary obligation in this case was on the plaintiff to take care” and held her guilty of contributory negligence to the extent of 85%. In doing so he relied upon the following factors:-
(i) She should not have been cycling on the footpath, something he described as a fact of life.
(ii) She had seen Mr. Mahon’s car emerging and it behoved her to avoid the accident by stopping and getting off her bike.
(iii) She was cycling too quickly.
7. Insofar as Mr. Mahon’s culpability was concerned, the trial judge concluded that he had been negligent in emerging without looking to his right.
Contributory negligence
The Appellant’s Submissions
8. Ms. Patricia Dillon SC, of behalf of Ms. Moore, submits that the trial judge erred in law in concluding that the primary obligation rested with Ms. Moore to avoid the collision. She submits that having regard to his finding that Mr. Mahon emerged without looking to his right and consequently never saw Ms. Moore that it was perverse to find her 85% responsible for her injuries.
9. Counsel accepts that as a matter of law and in particular by reason of Regulation 13 of the Road Traffic (Traffic and Parking) Regulations 1997 (“the Regulations”), her client was not permitted to cycle along the footpath. However, she submits that Mr. Mahon was also under an obligation pursuant to Regulation 8 to yield right-of-way to all vehicles and pedestrians proceeding in either direction when seeking to enter a public road from private premises, as was the case here. She also seeks to rely upon Regulation 5 which provides that where compliance with a Regulation is not possible as a result of an obstruction to traffic or pedestrians or because of an emergency situation, the restrictions otherwise provided may not apply.
10. In addition to his breach of Regulation 8, Ms. Dillon relies upon the clear breach on the part of Mr. Mahon of his common-law obligations to take reasonable care to ensure that he did not, by his actions, endanger Ms. Moore’s safety. He ought to have anticipated, as he prepared to move out onto the footpath, the potential presence of a wide variety of persons such as joggers, pedestrians, skateboarders and indeed cyclists.
11. In terms of the Court’s apportionment of liability, Ms. Dillon seeks to rely upon a number of decisions concerning the blameworthiness of those who knowingly get into a car with an intoxicated driver and later sustain injury. In those cases the courts have been reluctant to attribute more than 30% or 40% responsibility to the passenger. By that yardstick, and having regard to the findings of fact made by the trial judge, she submits that little or no liability should have been allocated to her client. This was particularly so in circumstances where the roadway which would normally have been available to her was not so available by reason of the ongoing road works. In evidence she had stated that she was reluctant to take the additional risk of cycling on a dual carriageway which was the only alternative route to her place of work.
12. As to quantum, Ms. Dillon submits that the trial judge erred in law in that he did not award any general damages in respect of pain and suffering into the future, notwithstanding his apparent acceptance of the evidence that Ms. Moore required further surgery to remove the wires in her elbow in order that she might regain full extension of the joint.
13. Counsel’s second submission concerns a statement by the trial judge in the course of his judgment concerning the reluctance on the part of Ms. Moore to have the further surgery which had been recommended by her orthopaedic surgeon. In this regard, immediately prior to pronouncing his award, the trial judge referred to Ms. Moore’s obligation to mitigate her losses and did so in the context of the evidence she have given concerning her reluctance to have the aforementioned surgery. That being so, Ms. Dillon invites this Court to infer that he reduced the damages which he would otherwise have awarded to reflect such failure. Assuming that this was the approach he had taken it was incorrect in law. First, he was only entitled to make such deduction if he had made a finding that her decision not to have the follow-up surgery was unreasonable and he did not make such a finding. Second, any such finding could only lawfully have been made based on evidence led by the defendant to support the unreasonableness of such a decision. As no evidence had been led by the defendant, the requisite burden of proof could not have been discharged.
14. Based on these submissions Ms. Dillon asks the court to set aside the award of damages made by the trial judge and to replace it with an award of damages to reflect the extent of likely future pain and suffering ignoring any considerations based her obligations to mitigate her loss.
The Respondent’s submissions
15. Mr. Declan Buckley S.C., on behalf of Advance Tyre, submits that the trial judge did not err in law in his approach to the issue of contributory negligence. On the facts found he was entitled to apportion liability as he did. He reminded the court that it should not interfere with a finding of contributory negligence unless it was grossly disproportionate in all of the circumstances.
16. Counsel submits that Ms. Moore cannot be released from her obligation not to cycle on the footpath under Regulation 13 merely because she considered cycling on a dual carriageway too hazardous. If that were so, chaos would prevail with significant numbers of cyclists abandoning the roadway in favour of the footpath. Further, even if the court concluded that it was reasonable for her to decide not to cycle on the dual carriageway, it did not follow that she should be excused cycling on the pavement. She could have walked her bicycle along the relevant stretch of roadway. Further, he submits that if the law precludes a person from cycling on the footpath, they cannot claim to have right of way over motorists lawfully emerging from adjacent premises across that footpath.
17. Mr. Buckley reminds the court that the trial judge did not, as Ms. Dillon suggested, find as a fact that Mr. Mahon had never looked to his right. He found that Mr. Mahon had seen Ms. Moore approach but ultimately emerged without looking to his right. He submits that the apportionment of liability was correct given that Ms. Moore had seen Mr. Mahon and could have dismounted. He had been moving out slowing yet she had not braked or stopped. Instead, she kept cycling and had successfully circumnavigated the bonnet of Mr. Mahon’s car before falling from her bike on trying to get pack up onto the footpath.
18. Counsel submits that it would be wrong in law for the court to approach the issue of contributory negligence by reference to the apportionment of liability in cases involving injuries to passengers who had agreed to allow themselves be carried in a car by a driver known to be drunk.
19. As to quantum, Mr. Buckley states that regardless of the fact that the High Court judge made no separate award in respect of damages for pain and suffering into the future it was to be inferred from his judgment that he had included an element of compensation in respect of that category of loss. In the delivery of an ex tempore judgment, it was not an unusual occurrence that a trial judge would make one composite award of general damages rather than assessing general damages separately under the headings of pain and suffering to date and pain and suffering into the future.
20. Mr. Buckley submits that it cannot be said with any degree of certainty that the trial judge reduced Ms. Moore’s damages because of the view he took of her evidence concerning the surgery which was proposed by her own consultant and which she appeared reluctant to undertake. The quantum of damages which he had awarded was not consistent with such an approach.
21. Counsel submits that taking all of the evidence concerning the plaintiff’s injuries into account, both in respect of pain and suffering to date and pain and suffering into the future, that the award of €60,000 was well within the parameters that might reasonably be awarded in respect of such injuries and that it was also within the range advised in the Book of Quantum.
Contributory negligence. How it is to be assessed by the trial judge and the role of the appellate court
22. The proper approach to the issue of contributory negligence by a judge at first instance has long been established and is not in dispute in this case. The same is governed by s. 34 of the Civil Liability Act 1961 which provides as follows:-
(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: provided that:-
(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally;
(b) this subsection shall not operate to defeat any defence arising under a contract or the defence that the plaintiff before the act complained of agreed to waive his legal rights in respect of it, whether or not for value; but, subject as aforesaid, the provisions of this subsection shall apply notwithstanding that the defendant might, apart from this subsection, have the defence of voluntary assumption of risk;
(c) where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages awarded to the plaintiff by virtue of this subsection shall not exceed the maximum limit so applicable.
(2) For the purpose of subsection (1) of this section damage suffered by the plaintiff may include damages paid by the plaintiff to a third person who has suffered damage owing to the concurrent wrongs of the plaintiff and the defendant, and the period of limitation for claiming such damages shall be the same as is provided by section 31 for actions for contribution;
(a) a negligent or careless failure to mitigate damage shall be deemed to be contributory negligence in respect of the amount by which such damage exceeds the damage that would otherwise have occurred;
(b) the plaintiff’s failure to exercise reasonable care for his own protection shall not amount to contributory negligence in respect of damage unless that damage results from the particular risk to which his conduct has exposed him, and the plaintiff’s breach of statutory duty shall not amount to contributory negligence unless the damage of which he complains is damage that the statute was designed to prevent;
(c) the plaintiff’s failure to exercise reasonable care in the protection of his own property shall, except to the extent that the defendant has been unjustly enriched, be deemed to be contributory negligence in an action for conversion of the property;
(d) damage may be held to be caused by the wrong of the defendant notwithstanding any rule of law by which the scope of the defendant’s duty is limited to cases where the plaintiff has not been guilty of contributory negligence: but this paragraph shall not render the defendant liable for any damage in respect of which he or a person for whose acts he is responsible has not been careless in fact;
(e) where an action is brought for negligence in respect of a thing that has caused damage, the fact that there was a reasonable possibility or probability of examination after the thing had left the hands of the defendant shall not, by itself, exclude the defendant’s duty, but may be taken as evidence that he was not in the circumstances negligent in parting with the thing in its dangerous state.
23. As to how a trial judge should assess fault for the purposes of the aforementioned section, Kenny J., in Carroll v. Clare County Council [1975] I.R. 221 stated as follows:-
“It is the blameworthiness, by reference to what a reasonable man or woman would have done in the circumstances, of the contributions of the plaintiff and defendant to the happening of the accident which is to be the basis of the apportionment.”
24. As to the circumstances in which an appellate court should interfere with a finding of contributory negligence made by a High Court judge, Walsh J. in Snell v. Haughton [1971] I.R. 305 stated as follows:-
“It has been established by a series of decisions of this Court that this Court will not disturb the jury’s findings on the apportionment of fault unless the apportionment is shown to be grossly disproportionate on the evidence.”
Decision: contributory negligence
25. I am firstly satisfied that as a matter of law the High Court judge erred when he concluded that primary responsibility to avoid the accident which occurred in this case rested with Ms. Moore.
26. Firstly, at common law the driver of a motor vehicle intending to drive across a public footpath is obliged to take reasonable care to ensure that in doing so he / she will avoid causing injury to anyone who might foreseeably be on it. It goes without saying that it is foreseeable that a driver who emerges onto a footpath without looking in both directions immediately prior to so doing may injure or possibly kill someone.
27. While cycling on a footpath is prohibited as per the Regulations already referred to, as the trial judge observed in the course of his judgment, it is a fact of life that people, for a wide range of reasons, end up cycling on the footpath. Young children regularly ride their bicycles or scooters along footpaths and the motorist intending to drive across a footpath must protect against the possibility that someone might be cycling towards them.
28. For those members of the public who use footpaths the motor vehicle is a dangerous machine. Its capacity to inflict gross or even fatal injuries while travelling at even modest speed is known and understood by all adults. The pedestrian, the jogger, the child in the buggy and the cyclist do not have the protection enjoyed by the motorist sitting inside the body of the car. That is not to say that cyclists cannot cause serious or even fatal injuries to pedestrians. They can and do, and it is for this reason they are burdened with precisely the same common law duty of care that which is owed by the motorist. They must cycle mindful of avoiding all accidents which are foreseeable. Thus regardless of where they decide to ride their bicycle they must take reasonable care for those who might foreseeably be injured by their actions as well as for their own safety. Cyclists who choose to cycle on a footpath risk causing foreseeable injuries to others using the same footpath and also have the capacity to cause injury to those emerging from adjacent premises. The child exiting the schoolyard and the elderly member of the community who, not hearing a cyclist approaching from behind, may unexpectedly turn into their path of travel, are but two such examples. However, in the present case, Ms. Moore by the manner of her cycling did not injure anybody.
29. When looking at the apportionment of liability made by the trial judge it is important to consider the facts found by him material to his decision. These include the fact that Ms. Moore was cycling her bicycle on a footpath which ran alongside a significant number of commercial premises each of which had available parking. Thus it was to be expected that there would be movement of traffic in and out of the car park onto the adjacent roadway. She was familiar with the area as she travelled along that road each day going to and from her place of work. In such circumstances she was obliged to keep an eye out for motorists who might wish to exit the premises particularly as she was in a position to see into the area concerned through the railings of the low wall which separated the footpath from the forecourt of those premises.
30. Ms. Moore in her evidence stated that she had seen Mr. Mahon preparing to emerge and she assumed he would stop. She should not have made that assumption as she stated he was looking the other way as he emerged. Unless satisfied that Mr. Mahon was obviously aware of her presence and appeared intent on giving way, she should have stopped or tried to stop. It is to be inferred from the judgment of the High Court judge that he was satisfied that she would have been able to do so had she made the appropriate decision. That being so, it seems to me that she should not have been further penalised for the fact that she was cycling at jogging speed. It was not her speed that was causative of what occurred but rather her somewhat “in the heat of the moment” decision to swerve around Mr. Mahon’s car rather than try to stop.
31. Based on the findings of fact made by the High Court judge Mr. Mahon was clearly in breach of his duty of care to Ms. Moore. He works in the premises outside of which the accident occurred. He knows the footpath is in a busy commercial area. He was obliged to satisfy himself that the path was clear either side of his car at the point at which he pulled out and he did not do so. The High Court judge held that Mr. Mahon had seen Ms. Moore as she approached the entrance and that she had at all times been cycling on the footpath. The fact that he did not check to his right at the moment he drove forward across the path was to put her safety at risk, as in fact occurred. Mr. Mahon should have seen her and waited for her to pass before entering onto the path. His actions were not reasonable, having regard to the prevailing circumstances.
32. As to the Regulations, it is clear that Ms. Moore was in breach of Regulation 13 and Mr. Mahon in breach of Regulation 8. I am satisfied that Regulation 8 obliged Mr. Mahon to yield right-of-way to anybody actually using the footpath at the time he intended to cross it. He is not to be relieved of that obligation just because the approaching cyclist was cycling on the footpath contrary to Regulation 13.
33. Having considered all of the aforementioned matters, it is for this court to consider whether the finding of 85% responsibility on the part of Ms. Moore for her injuries was so disproportionate that it should be set aside. Assessing, as I must, the blameworthiness of the parties, as was the obligation of the High Court judge, I am satisfied that the order of the High Court judge apportioning liability must be set aside, as being perverse in all of the circumstances. That said, I do not believe that Mrs Moore’s blameworthiness for cycling on the footpath should be reduced by reason of the existence of the road works on the adjacent roadway. It does not necessarily follow that because she couldn’t cycle on the roadway she had to cycle on the footpath. She could have walked her bicycle down that section of the footpath until she got beyond the road works or she could have used an alternative route which involved cycling on a dual carriageway. The fact that she felt at greater risk cycling along a dual carriageway does not justify her conduct in deciding to cycle on the footpath. However, when it comes to blameworthiness, the greater portion of the blame must rest with Mr. Mahon, who saw Ms. Moore on approach. He was obliged to yield right-of-way to her even though she should not have been cycling on the footpath. He emerged without taking action to ensure her safety. In these circumstances I would propose that this court would substitute a finding of 60% negligence on the part of the defendant and 40% on the part of Ms. Moore.
Decision: quantum appeal
34. As a result of the fall from her bicycle, Ms. Moore was taken to Our Lady of Lourdes hospital in Drogheda where x-rays revealed the presence of a severely comminuted fracture to her left elbow. Under a general anaesthetic the fracture was reduced and stabilised with the assistance of the insertion of two pins and a tension band wire. Following her discharge from hospital her forearm was in a plaster cast for several weeks. She had difficulty with sleeping. She suffered a lot of pain and required to take pain killing medication. She undertook rehabilitation by way of physiotherapy. As a result of the surgery she was left with a 12cm scar over the left elbow. She also had difficulties with the tension band wire insofar as the same could be felt to be protruding somewhat beneath the skin.
35. From his judgment it is clear that the trial judge was satisfied that Ms. Moore was still somewhat symptomatic as of the date of the hearing. He found that she had a modest limitation of extension of the left elbow and that a further surgical procedure would be required before she might expect to regain full function.
36. Having considered the submissions of the parties and the judgment of the High Court judge I am satisfied that the trial judge did not impermissibly exclude from his consideration, when he made his award of damages in the sum of €60,000, the fact that Ms. Moore would suffer pain and discomfort into the future. He refers specifically to the fact that she would require a further surgical procedure to improve her residual restriction of movement and in these circumstances the only reasonable inference to draw is he took into account some degree of relatively modest pain and suffering when he made his award in the sum of €60,000.
37. It is of course important that a trial judge should make a separate award for damages for pain and suffering to date and for pain and suffering into the future should the evidence warrant such an approach. Nonetheless, in cases where he/she is satisfied that the pain and suffering which a plaintiff is likely to endure in the future is very modest it is acceptable, in my view, for the trial judge not to make a separate award in respect of pain and suffering into the future. However, in such circumstances it behoves the judge to record in the course of his/her judgment that they have taken such an approach and to identify those future sequelae which are to be met by the single award in respect of general damages.
38. As to whether the trial judge made any impermissible deduction in Ms. Moore’s damages based on an unsustainable finding that she had failed to mitigate her loss, this is not at all clear from the ex tempore decision of the High Court judge. This difficulty can however be overcome by a consideration by this Court as to whether, having regard to all of the findings that he made in respect of Ms. Moore’s injuries and having regard to the application of the appropriate legal principles, the award of €60,000 made by the trial judge is disproportionately low to the point that it ought to be set aside.
39. It is common case that an appellate court should not disturb an award of damages made by the trial judge unless it is satisfied that there is no reasonable proportion between the actual award of damages and what the court, sitting on appeal, would be inclined to give itself. See Rossiter v. Dun Laoire Rathdown County Council [2001] 3 IR 578.
40. It is undoubtedly the case that Ms. Moore sustained a significant injury which required surgical intervention and that she had not made a fully recovery as of the date of the trial. It was clear from the evidence that her capacity to fully extend her elbow would remain impaired if she decided not to undertake the surgery advised by her surgeon or would make a relatively full recovery if she were to do so. While the trial judge did not decide, on the balance of probabilities, whether Ms. Moore would or would not undertake that surgery, either way her claim for damages for pain and suffering into the future, was one which was relatively modest, albeit that she has a 12 cm scar to the elbow. Having inspected that scar in the course of the appeal, I believe it is fair to say that the scar is not particularly noticeable and certainly could not be described as disfiguring in any way.
41. Taking all of the plaintiff’s injuries into account the award of €60,000 by way of general damages was by no means generous. In my view, it is just about within the parameters of damages that might reasonably be awarded for injuries of this nature such that it is to be protected from any interference by an appellate court. In this regard it is to be noted that the sum so awarded also falls within the parameters advised in the then current Book of Quantum in relation to fractured elbows even if it be the case that the values therein specified were somewhat out of date at the time of the making of the award under consideration. However, even allowing for that, the award made by the trial judge was not in my view sufficiently disproportionate such that it ought to be set aside and replaced by a greater reward.
Conclusion
42. For the reasons earlier advised in this judgment I am satisfied that the trial judge erred in law in the manner of his approach to the issue of contributory negligence. On the basis of the facts found by the High Court judge I am satisfied that his apportionment of liability as to 85% negligence on the part of the plaintiff and 15% negligence on the part of the defendant was disproportionate to the point that his finding must be set aside. I would propose that liability should be apportioned such that the defendant should be found 60% liable in respect of Ms. Moore’s injuries.
43. As to general damages I am not satisfied that Ms. Moore has discharged the burden of proof to demonstrate that the award of €60,000 in respect of general damages should be set aside in favour of any greater sum.
44. I would accordingly allow the appeal insofar as the liability issue is concerned.